text:
    STATE of Louisiana, Appellee, v. John W. KELLOGG, Appellant.
    No. 16,222-KA.
    Court of Appeal of Louisiana, Second Circuit.
    June 6, 1984.

      William T. Giddens, Shreveport, for appellant.
    William J. Guste, Jr., Atty. Gen., Baton Rouge, Paul J. Carmouche, Dist. Atty., Howard Fish and Catherine Estopinal, Asst. Dist. Attys., Shreveport, for appellee.
    Before HALL, JASPER E. JONES and NORRIS, JJ.
   NORRIS, Judge.

Defendant, John W. Kellogg, appeals as excessive a consecutive sentence of seven years at hard labor after a plea of guilty to simple robbery in violation of La.R.S. 14:65. Finding no merit to defendant’s claim, we affirm.

Defendant was originally charged with armed robbery in violation of La.R.S. 14:64. Pursuant to a plea arrangement involving the defendant, the district attorney’s office and the trial judge, the district attorney agreed to accept a plea to the lesser included offense of simple robbery and to refrain from filing a habitual offender bill in return for the defendant’s plea of guilty to the reduced charge. Prior to taking the plea, the trial judge agreed to impose the maximum sentence of seven years and to run that sentence consecutively with another term of seven years imposed in Bossier Parish for another robbery. It is clear from the plea colloquy that the defendant understood this agreement and was willing to be bound by it at the time he entered this plea.

During the taking of the plea, the district attorney related the following factual basis for the plea which the defendant agreed was true. On February 12, 1983, the defendant entered the Delta Service Station located on Mansfield Road in Shreveport where he told the attendant to give him all of his money or he would kill him. He made this statement after placing his hand under his jacket and telling the attendant that he had a gun. The attendant surrendered between $100 and $150 in cash.

The trial judge found the plea to be freely and voluntarily given and the defendant waived the three day delay asking that he be sentenced immediately. Prior to the imposition of the agreed upon sentence, the defendant thanked the trial judge, the district attorney and his attorney for allowing him to enter this plea. Thereafter, the trial judge stated that he was familiar with the defendant’s prior substantial criminal record. While not going into detail regarding his reasons for this sentence, the judge did state that the defendant was originally charged with armed robbery, that he had reviewed the defendant’s prior criminal record and that this was a three way plea arrangement among the defendant, the state and the court as to the sentence the defendant would receive with the defendant specifically agreeing in advance to the sentence.

In spite of this plea agreement, the defendant subsequently sent a motion in the form of a letter stating that he had made no agreement and wished to appeal. The appeal was granted, counsel was appointed to represent the defendant on appeal, and the only issue presented for our review is excessiveness of sentence.

Defendant does not ask that this plea arrangement be vacated and set aside but limits himself to the argument that the sentence is excessive in that it is truly a maximum sentence because the facts giving rise to this charge will not support a conviction of armed robbery. It is further argued that this maximum sentence is excessive because this defendant is not the worst offender and the offense is not serious enough to require the maximum sentence for simple robbery which was actually imposed.

Although the defendant does not complain that the trial judge did not adequately comply with La.C.Cr.P. Art. 894.1 in imposing this sentence, it is obvious from our review of the record that this article was not adequately complied with because the trial judge was relying on the plea arrangement which the defendant had agreed to.

Article I, § 20 of the Louisiana Constitution of 1974 protects a defendant against the imposition of excessive punishment. A sentence constitutes excessive punishment if it is grossly out of proportion to the severity of the crime or if it is nothing more than the purposeless and needless imposition of pain and suffering. State v. Bonanno, 384 So.2d 355 (La.1980). To prevent the possible imposition of excessive punishment and to guide the trial court in its sentencing tasks the legislature enacted La.C.Cr.P. Art. 894.1, which sets forth factors which justify a sentence of imprisonment and other factors which tend to indicate suspension of sentence or probation as appropriate. Included within this article is the provision that the trial judge state for the record the factors he took into consideration and the factual basis therefor in imposing sentence. However, the trial court’s failure to comply with this article will not, in and of itself, render a sentence invalid. The sentence will be upheld if the record clearly illumes the sentencing choice and reflects that the sentence is not excessive. State v. Smith, 430 So.2d 31 (La.1983). This principle applies to cases involving sentences imposed after trial [State v. Smith, supra] and after a guilty plea [State v. Edwards, 434 So.2d 395 (La.1983)].

While it has been held that the review of possible constitutional error in regard to excessive sentences is not absolutely precluded by a defendant’s agreement to plead guilty or to receive a particular sentence [State v. Jett, 419 So.2d 844 (La.1982)], it has also been held in several recent cases that a defendant who accepts a sentence under a plea bargain may not later assert that the sentence is excessive or that the trial judge failed to adequately comply with the sentencing guidelines of La.C.Cr.P. Art. 894.1 in imposing sentence. State v. Edwards, supra and the cases cited therein. Notwithstanding this line of jurisprudence, which precludes review of sentences imposed in such cases, there are other cases which have reviewed and affirmed such sentences on the basis that the record “clearly illumes” the sentence imposed in accordance with the plea bargain. Compare State v. Edwards, supra.

While we are not disposed to hold in this case that a defendant is always absolutely precluded from sentence review when he agrees to plead guilty in return for a particularly designated sentence, we are prepared to hold in this case that based on this record, this particular defendant cannot complain on appeal that this sentence is excessive. There is no question but that this plea was knowingly and intelligently entered; it was entered with the defendant’s full understanding of its complete ramifications and his complete ae-quiesence. Furthermore, defendant, notwithstanding his argument on appeal to the contrary, received a substantial benefit from the plea bargain. Not only was his maximum sentencing exposure reduced from 99 years without benefit of probation, parole or suspension of sentence to seven years on the reduction of the armed robbery to simple robbery but also he received a substantial additm-' reduction in exposure from the state’s agreeing to not file a multiple offender bill. The trial judge recognized and the record reveals that the defendant’s past criminal record is lengthy. It not only includes this offense and another robbery offense for which the defendant was incarcerated at the time of sentencing but also includes other criminal activity including convictions for assault, burglary, a stolen vehicle, escape, weapon offenses and DWI. As well as we can tell from our review of the record, this defendant is at least a second felony offender.

Furthermore, defendant has pointed to no factors and the record reveals no factors which would warrant a remand in this case for resentencing. Compare State v. Walters, 440 So.2d 115 (La.1983).

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

CONVICTION AND SENTENCE AFFIRMED.

      . The defendant’s understanding is expressed below:
      THE COURT: All right, sir. Mr. Kellogg, have you discussed with your attorney the plea bargain which has been reached with the State and the Court with regard to the plea in this case?
      MR. KELLOGG: Yes, sir.
      THE COURT: Do you understand that I have advised your attorney that I would give you seven years at hard labor on this plea?
      MR. KELLOGG: Yes, sir.
      THE COURT: To run consecutive with any other sentence that you are not—
      MR. KELLOGG: I understand, Your Honor.
      THE COURT: You understand that. My information Mr. Kellogg is that you have been sentenced to a hard labor sentence in Bossier Parish as a result of another robbery over there.
      MR. KELLOGG: Yes, sir, seven years over there, Your Honor.
      THE COURT: All right, sir. Do you understand that this would be seven years at hard labor consecutive with that?
      MR. KELLOGG: I understand that, Your Honor.

      . Specifically, the defendant stated:
      MR. KELLOGG: Your Honor, I would just like to thank the Court for being as lenient on me at this time and I just hope and pray that I will learn a lesson from this and like I say, I want to thank the DA and thank you and thank my attorney for — for like I said, for dropping this charge down to simple robbery.

      . Defendant's appellate counsel is the same counsel who represented him in connection with the plea bargain.

      .In support of this argument defendant cites State v. Elam, 312 So.2d 318 (La.1975) for the proposition that "hand in a pocket” is not a dangerous weapon. While the court in Elam did state that a "hand in a pocket” is not per se a dangerous weapon, this court upheld the conviction for armed robbery where the defendant there kept one hand in his jacket pocket at all times during the course of the robbery, motioned with his hand in his pocket in a way which indicated he had a weapon, and told the victim "don’t make me shoot you” and “I’m going to shoot you, boy”. The court in affirming the conviction in Elam stated:
      ... The mere facts that no weapon was actually seen by the victim or any other witness and that no gun was recovered by the law enforcement officers who arrested the defendants ... does not preclude the defendants’ convictions for armed robbery, considering the victim’s testimony relating Wiggins’ actions and his threats.
      We feel defendant’s reliance on Elam is misplaced considering his threats and actions.


source: Caselaw Access Project

author: MARVIN, Judge.

license: Public Domain

text:
    Celia HOWERY, Plaintiff-Appellee, v. William LINTON, et al., Defendants-Appellants.
    No. 16247-CA.
    Court of Appeal of Louisiana, Second Circuit.
    June 6, 1984.
    Roland V. McKneely, Jr., Bossier City, for defendants-appellants.
    Loridans, Beresko & Loridans by Alfred R. Beresko, Bossier City, for plaintiff-ap-pellee.
    Before PRICE, C.J., and MARVIN and JASPER E. JONES, JJ.
   MARVIN, Judge.

From a default judgment for damages allegedly inflicted by a battery upon plaintiff, defendant appeals, questioning the sufficiency and admissibility of the evidence and the award of $5,000 in general damages and $228 in special damages. We affirm.

CCP Art. 1702 requires a plaintiff who proceeds at the default of defendant to prove a “prima facie case.” This means that the plaintiff must prove the essential allegations of her petition as if each allegation had been specifically denied. Jones v. Ledet, 383 So.2d 1308 (La.App. 3d Cir. 1980); Smith v. Doyle, 160 So.2d 791 (La.App. 3d Cir.1964).

In personal injury-battery cases, a plaintiff must show that a battery was committed upon her by the defendant and that the battery caused her damage or injury. See Middleton v. Shaw, 271 So.2d 358 (La.App. 2d Cir.1972); Veillon v. Sylvester, 174 So.2d 189 (La.App. 3d Cir.1965). Plaintiff must additionally negate her provocation or show that, even if defendant was provoked, defendant used excessive force under the circumstances to cause the injury. Middleton, supra.

Plaintiff and her male friend, Ed Cole, testified that the two of them joined other friends of plaintiff at a Bossier City bar shortly after plaintiff got off work at midnight, May 21, 1983. Plaintiff said she had only one beer because she was under a “doctor’s care ...” About an hour later two men and two women became involved in an altercation, all of whom were either “friends of” or were known to plaintiff. Plaintiff said that defendants Mike Linton and Steve Huckaby “jumped on this other lady ... [and that she got up out of the chair to] stop it before it ever got started ... [TJhat’s as far as I got- Mike Linton ... shoved me into Steve Huckaby, and he took me and jerked me out the door, cussing every breath ... and beat me outside against a brick wall and threw me down on the concrete.” Defendant Hucka-by was described as being over six feet tall and weighing about 190-200 pounds. Plaintiff’s height and weight are not shown.

Plaintiff testified that when she was thrown to the. ground by defendant she couldn’t move because of pre-existing back problems that she later described as fibro-citis. She said “I hit my head [on the concrete] ... it hurt my back real bad and I couldn't move ... they had to call an ambulance and took me to Bossier General Hospital.” She said she was x-rayed at the hospital and that she suffered “a black eye, it turned into, ... left wrist ... bruised real bad, broke my watch, and ... blue marks ... on my back, my arms.” She said she suffered “terrible embarrassment” and has not been able to go back around any of “those people” who were at the bar that night. She denied doing anything to provoke defendant Huckaby. She also claimed at the October trial date that she had not been able to work following the May 21 battery. She was denied loss of wages by the trial court because she did not sue for that loss.

Plaintiff prayed for $75,000 damages and was awarded $5,000 by the trial court. Under the circumstances above shown, we find no error. Plaintiff made out a prima facie case. CCP Art. 1702. Ed Cole corroborated plaintiff's testimony about the events in the bar, that he saw her on the ground and caused an ambulance to be called. He followed her to the hospital, and after she was “x-rayed and everything ...” he took plaintiff home and “helped [her daughter get her] to bed.” We have recognized that a trial court has great discretion in assessing personal injury damages. We do not modify the trial court’s assessment where an abuse of discretion is not shown. Reck v. Stevens, 373 So.2d 498 (La.1979).

Plaintiff testified that she received a bill from the ambulance service for $140 and a bill from the hospital for x-rays for $88. The trial judge allowed these bills into evidence and allowed plaintiff $228 in special damages. Defendant complains that special damages should not have been allowed because the bills were inadmissible hearsay. We find no error in the allowance of special damages or in the admissibility of the bills.

Plaintiff established that it was apparently necessary for her to be taken by ambulance to a hospital. She established that she was x-rayed at the hospital and was released on the date of the incident in the bar. The expenses she said she incurred are not unreasonable in amount. The fact that she received the bills in the amount shown is not inadmissible hearsay, and to this extent, the bills were admissible, even though they might not have been admissible to independently prove that services were necessary or that the expenses incurred by her were reasonable. See Bailey v. Jackson, 331 So.2d 498 (La.App. 2d Cir.1976); Sutherlin Sales Co. v. United Most Worshipful, Etc., 127 So.2d 253 (La.App. 4th Cir.1961), writ den.; State Farm Mut. Auto Ins. Co. v. Terrebonne, 356 So.2d 1073 (La.App. 4th Cir.1978); Lambert v. Allstate Insurance Company, 195 So.2d 698 (La.App. 1st Cir.1967); Villetto v. Weilbaecher, 377 So.2d 132 (La.App. 4th Cir.1979); Hayes v. Illinois Central Railroad, 83 So.2d 160 (La.App. 1st Cir.1955), 12 A.L.R.3d 1347. See also Pacific Gas & Elec. Co. v. G.W. Thomas Drayage & R. Co., 69 Cal.2d 33, 69 Cal. Rptr. 561, 442 P.2d 641 (1968) and Garrett v. Morris Kirschman & Company, Inc., 336 So.2d 566 (Fla.1976).

The judgment for $5,228, at appellant’s cost, is affirmed.

      . Plaintiff sued this appellant, as well as Mike Linton and William Linton, the owner of the bar. The default judgment reserved all rights against the remaining defendants.


author: JASPER E. JONES, Judge.

text:
    SUCCESSION OF Mrs. Allena Rogers MONTGOMERY, Deceased.
    No. 16249-CA.
    Court of Appeal of Louisiana, Second Circuit.
    June 6, 1984.

      Stinson & Stinson by Ford Stinson, Sr., Benton, for appellant.
    Cook, Yancey, King & Calloway by Sidney E. Cook, Shreveport, for appellee.
    Before JASPER E. JONES, FRED W. JONES, JR. and NORRIS, JJ.
   JASPER E. JONES, Judge.

The appellant, Thomas B. Montgomery, appeals a judgment rejecting his demand to remove William Johnston from the office of dative testamentary executor for the estate of Aliena Rogers Montgomery. We affirm.

Decedent died testate on August 27, 1981. Her will provided appellant was to be appointed as testamentary executor of her estate. Appellant was duly appointed to the office but was subsequently removed for cause by judgment dated February 10, 1983. Prior to his removal, appellant filed a sworn detailed descriptive list of the assets and liabilities of decedent’s estate into the succession record.

Johnston applied for and was appointed dative testamentary executor by order of court on August 9, 1983. He took his oath of office, posted the $50,000.00 bond ordered by the trial court, received his letters testamentary all on the same date he received the appointment. He was not ordered to file a new or amended detailed descriptive list or inventory of the estate’s property prior to taking office.

Appellant filed a petition to remove Johnston from office on August 23, 1983 and by judgment signed December 13, 1983 the trial court denied appellant’s petition for removal of Johnston from office. Appellant contends the trial judge erred in not removing Johnston from office because: (1) he failed to file a detailed descriptive list or inventory prior to taking office; (2) he posted inadequate security; and (3) he has a conflict of interest.

1. Descriptive list or inventory

Appellant’s argument that Johnston should have been removed from office for failing to file a new or amended detailed descriptive list or inventory of the estate’s property is based on LSA-C.C.P. art. 3094, which provides in pertinent part:

The court shall order the taking of an inventory, or the filing of a descriptive list as provided in Article 3136, of the property of the deceased upon the filing of an application for appointment as administrator.

This article requires the judge to order the filing of the descriptive list when an applicant seeks to become the administrator of an estate. Appellant is contending Johnston should be removed because the trial judge failed to condition his qualifying as administrator upon his filing a new sworn descriptive list. The argument has no merit.

The trial judge stated that he did not order Johnston to make the filing because a descriptive list prepared by appellant had earlier been filed in the succession record. It was correctly noted by the trial judge that the purpose for requiring a descriptive list or inventory prior to appointment is to aid the court in determining the proper security to be ordered. The court was able to make that determination from appellant’s descriptive list and there was no need for Johnston to file a new or amended descriptive list or inventory for that purpose. If the court had ordered a new descriptive list before fixing the administrator’s bond and permitting Johnston to qualify as administrator, the succession, which had been without a representative for six months at the time of Johnston’s appointment, would have needlessly remained in limbo an additional period of time. The trial court did not err in refusing to remove Johnston from office on this ground.

We further note the trial judge, at the removal hearing, concluded the initial descriptive list was inadequate and ordered Johnston to file an amended list or inventory within 60 days.

2. Inadequate security

Appellant contends the $50,000.00 security bond ordered by the trial judge and posted by Johnston is inadequate because it does not exceed by lk the total value of all the property of the succession as required by the first paragraph of LSA-C.C.P. art. 3151. He is apparently arguing that this article leaves the trial judge with no discretion to set a lower amount. This argument is without merit. Article 3151 provides in full:

Except as otherwise provided by law, the person appointed administrator shall furnish security for the faithful performance of his duties in an amount exceeding by one-fourth the total value of all property of the succession as shown by the inventory or descriptive list.
The court may reduce the amount of this security, on proper showing, whenever it is proved that the security required is substantially in excess of that needed for the protection of the heirs and creditors.

The second paragraph of this article authorizes the .trial judge, in his discretion, to set a lower amount for security than the amount required by paragraph one when it is shown the lower amount is sufficient to protect the interest of heirs and creditors. The descriptive list compiled by appellant shows that most of the assets of the estate are immovable property. This property cannot be alienated in any manner without judicial approval. See LSA-C.C.P. arts. 3226, 3228, 3229, 3261, 3271, 3272, 3281, 3282, 3284 and 3291. For these reasons the $50,000.00 security ordered by the trial judge is sufficient to protect the interest of heirs and creditors and we find no abuse of discretion in the amount of security ordered.

Even if the trial court had abused his discretion by setting the bond too low, appellant’s petition was premature insofar as it sought to have the appointment set aside for inadequate security. Johnston cannot be removed from office on this basis unless he is first afforded an opportunity to supplement the security posted. See LSA-C.C.P. arts. 5123-5125; Succession of Smith, 219 So.2d 291 (La.App. 3d Cir.1969). The trial court left open the option of ordering additional security until after the amended descriptive list or inventory is filed.

3. Conflict of interest

Appellant contends Johnston has a conflict of interest because Johnston is a debtor of the estate and he (appellant) is a creditor of the estate. His argument that Johnston should be removed from office for this reason is without merit. A mere conflict of interest without more is not grounds for removal of a succession representative. The party seeking the removal must prove either the existence of one of the grounds for removal contained in LSA-C.C.P. art. 3182 or that the representative breached his fiduciary duty to the succession under LSA-C.C.P. art. 3191. Succession of Dunham, 408 So.2d 888 (La.1981). Appellant proved neither. The trial court did not err in refusing to remove Johnston from office for his alleged conflict.

The judgment is AFFIRMED at appellant’s cost.

      . The descriptive list reflected the value of the property belonging to the estate, other than immovable property, at the sum of only $4,554.11.

      . Art. 3182. Removal
      The court may remove any succession representative who is or has become disqualified, has become incapable of discharging the duties of his office, has mismanaged the estate, has failed to perform any duty imposed by law or by order of court, has ceased to be a domiciliary of the state without appointing an agent as provided in Article 3097(4), or has failed to give notice of his application for appointment when required under Article 3093.
      The court on its own motion may, and on motion of any interested party shall, order the succession representative sought to be removed to show cause why he should not be removed from office. The removal of a succession representative from office does not invalidate any of his official acts performed prior to his removal.

      . Art. 3191. General duties; appointment of agent
      A succession representative is a fiduciary with respect to the succession, and shall have the duty of collecting, preserving, and managing the property of the succession in accordance with law. He shall act at all times as a prudent administrator, and shall be personally responsible for all damages resulting from his failure so to act....


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

text:
    Joyceleen Loche, Wife of and Solomon LOCHE, Plaintiffs-Appellants, v. STANDARD ASSOCIATES MANAGEMENT & CONSULTANTS, INC., et al., Defendants-Appellees.
    No. 16256-CA.
    Court of Appeal of Louisiana, Second Circuit.
    June 6, 1984.
    Rehearing Denied July 6, 1984.
    Writ Denied Oct. 26, 1984.

      Rankin, Yeldell, Herring & Katz by Stephen J. Katz, Bastrop, for plaintiffs-appellants.
    Hayes, Harkey, Smith & Cascio by Charles S. Smith, Monroe, for defendants-appellees, Standard Associates Management & Consultants, Inc. and Holland America Ins. Co.
    North Louisiana Legal Assistance Corporation by David A. Titman, Monroe, for defendant-appellee Emma Johnson.
    Before JASPER E. JONES, FRED W. JONES, Jr. and NORRIS, JJ.
   FRED W. JONES, Jr., Judge.

Mrs. Joyceleen Loche was allegedly injured when struck on the head by a portable sign pole in the parking lot of a Bastrop shopping center. Ultimately made defendants in the ensuing litigation were the owner of the shopping center, its insurer, the liquidator of the manufacturer of the sign pole, the minor child who allegedly knocked over the sign pole, and the mother of the minor child.

Following trial on the merits, judgment was rendered only against the mother of the minor child, but was reduced to $9,901.82 because of her impecunious condition.

Mrs. Loche and her husband appealed the judgment, contending the trial judge erred in (1) not finding the shopping center owner and the maker of the sign pole strictly liable for the accident; (2) not finding the shopping center owner negligent in use of the sign pole; (3) awarding inadequate damages; (4) subtracting vacation pay from lost income; and (5) not awarding future medical expenses.

For the reasons hereinafter set forth, we affirm.

On the afternoon of March 27, 1981 Joy-celeen Loche was a patron at the Washington Square Shopping Center in Bastrop, Louisiana. After starting to leave the shopping center she met a friend, Emma Johnson, on the sidewalk/fire lane area in front of Kent’s Store. Mrs. Johnson was on her way into the shopping center along with her ten year old daughter, Latonia Parham.

The two women became engaged in a conversation in front of a portable sign pole used to keep the fire lane clear of obstructions. The sign pole consisted of a pipe embedded in a concrete-filled tire rim. It was approximately seven feet high and weighed 76 pounds. Attached to the pipe were signs which read “No Parking Fire Lane” and “Tow Away Zone.”

During the conversation the minor child began to play on the sign pole, causing it to tip over and hit Mrs. Loche on the back of the head and shoulder.

Suit was instituted by the Loches against the owner of the shopping center, Standard Associates Management & Consultants, Inc. (Standard) and their insurer. Standard and the insurer third partied Mrs. Johnson, her minor child, and R.L. Johnson as liquidator of Linemarkers, Inc., the manufacturer of the portable sign pole. Plaintiffs thereafter amended the petition to name these latter parties as defendants.

At trial both Mrs. Johnson and Mrs. Loche testified they did not observe the minor child as they were talking prior to the accident. The minor child testified she was swinging on two stationary canopy poles on either side of the portable sign pole when she struck the sign pole with the fingers of her right hand, causing it to tip over and hit Mrs. Loche. The minor denied swinging on the sign pole itself.

Two witnesses, both working at nearby stores, testified they had a clear view of the event surrounding the accident through the glass front of those stores. Mr. Francis Malone observed the minor child with her arm around the sign pole, swinging on it. Mrs. Nell Farrar, testifying by deposition, saw the minor child swinging around the sign pole with her feet on the outside of the rim. Both stated the sign pole fell and struck Mrs. Loche because of the minor child’s swinging.

No witnesses could recall seeing children playing on the sign pole in the past. However, it was established that the sign poles were occasionally toppled by vehicles or high winds. Jeffery Underwood, Standard’s vice president responsible for marking the fire lanes, stated there were never complaints about the portable sign poles.

Plaintiffs’ expert civil engineer, John Ashbrook, determined that once the sign pole was moved past the center of gravity point (15 degrees from vertical) it would fall from its own weight. At the four foot mark on the sign pole (the height of the minor child) ten pounds of pressure would topple the pole. Ashbrook concluded the sign pole was defective because it was top heavy; however, he admitted a steady, constant pressure was necessary to topple the pole.

Jerry Madden, also accepted as an expert civil engineer, testified the sign pole was not defective in its normal use and function. He stated it required a sustained force, applied at a greater angle than 15 dégrees, to push the sign pole through the point at which it will fall from its own weight.

Jimmy Porter, Chief of Fire Prevention of the Bastrop Fire Department, testified the sign pole met the local and state fire code requirements. He further stated that when signs are placed in a fire lane it is necessary that they be portable so they can be moved in the event of fire.

Faced with this evidence, the trial court made the following finding of fact in written reasons for judgment:

“Due to all of the evidence in the case including an in-court demonstration in which the sign pole was struck repeatedly and with great force, this Court makes a factual finding that the sign pole was not, in fact, struck or knocked over by the minor as the minor testified but, in truth, was caused to fall by the minor swinging round and round on the pole as testified to by Mrs. Farrar and Mr. Malone.”

After making this finding, the trial court found Emma Johnson strictly liable to plaintiffs for the actions of the minor child under La. Civil Code Article 2318 and Turner v. Bucher, 308 So.2d 270 (La.1975).

As to the remaining defendants the trial court found plaintiffs failed to prove the sign pole was defective and, even if defective, that it did not pose an unreasonable risk of harm.

Plaintiffs argue that regardless of the actions of the minor, the remaining defendants created circumstances which presented an unreasonable risk of harm by placing the sign pole in an area where many young children are expected to be present. Plaintiffs claim there were safer alternative means of lawfully marking the fire lane.

In the recent case of Kent v. Gulf States Utilities Company, 418 So.2d 493 (La.1982) our supreme court explained:

“In a strict liability case [as opposed to a typical negligence case]_the claimant is relieved only of proving that the owner knew or should have known of the risk involved. The claimant must still prove that under the circumstances the thing presented an unreasonable risk of harm which resulted in the damage (or must prove, as some decisions have characterized this element of proof, that the thing was defective). The resulting liability is strict in the sense that the owner’s duty to protect against injurious consequences resulting from the risk does not depend on actual or constructive knowledge of the risk, the factor which usually gives rise to a duty under negligence concepts....
“Thus, while the basis for determining the existence of the duty_is different in C.C.Art. 2317 strict liability cases and in ordinary negligence cases, the duty which arises is the same.” (p. 497)

Justice Dennis pointed out in his concurring opinion in Kent:

“All of these ‘unreasonable risk’ tests imply a process of balancing the risk against the value of the interest which the defendant is seeking to protect, and the expedience of the course pursued. Prosser, at p. 149. This is the standard negligence test. In strict liability, except for the element of the defendant’s knowledge, the test is the same as that for negligence.” (p. 501)

See Tipton v. Bossier Parish School Board, 441 So.2d 453 (La.App. 2d Cir.1983).

Thus, the issue is: Did placing this portable sign pole in the fire lane of a shopping center, where children are present, create an unreasonable risk of harm to Mrs. Loche? Considering factors such as likelihood and gravity of harm, benefits and purpose of the sign pole, as well as its utility and effectiveness, we conclude the trial court correctly found it did not present an unreasonable risk of harm.

We agree with the trial court finding that normal use of the sign pole does not involve children playing on same and, but for the act of the minor child, the sign pole would not have fallen on Mrs. Loche.

Therefore, the trial court did not err in absolving the shopping center owner, its insurer, and the manufacturer of the sign pole of liability either on the theory of strict liability or of negligence.

After being struck on the head by the sign pole, Mrs. Loche remained dizzy and groggy for ten to twenty minutes. That night she was treated at the hospital for a bruised scalp.

The week following the accident was a paid vacation for Mrs. Loche from her secretary job. She experienced head and neck pain throughout the week.

After being treated by her family doctor, Dr. Donald, who diagnosed her injury as a strain of the cervical spine, Mrs. Loche began treatments by Dr. Chorette, an internist, in August 1981. He diagnosed her injury as a cervical muscular strain, but noticed considerable improvement after the initial examination.

Due to persistent head and neck pain, Mrs. Loche began treatment by Dr. Hawthorne, a chiropractor, in November 1982.

For a short time during the treatment period Mrs. Loche was hospitalized and wore a prescribed cervical collar. The injuries caused her to be absent from work for an extended period.

Based on this evidence the trial court awarded plaintiffs medical expenses of $3,520.74, and lost income of $2,667.83. In addition, the court found Mrs. Loche would be entitled to a general damage award for pain and suffering of $10,000. However, employing the rationale of Guy v. Tonglet, 379 So.2d 744 (La.1980), the court considered Mrs. Johnson’s inability to pay a sizeable judgment. Therefore, the award for pain and suffering was fixed at $2,500.

Plaintiffs argue the trial court abused its discretion in awarding inadequate general damages; in deducting the vacation pay Mrs. Loche received for the week immediately after the accident from the lost income award; and in failing to award future medical expense for chiropractic treatments.

Considering the extent of the injuries Mrs. Loche suffered and the impecunious condition of Mrs. Johnson (a fact which is not contested by plaintiffs), we are unable to say the trial court abused its discretion in making the general damage award of $2,500. Additionally, any error in subtracting the vacation pay from the lost income award is of little consequence considering the inability to pay. Therefore, the lost income award will not be disturbed.

The trial judge stated that the past chiropractic treatments were excessive; however, he awarded the total medical expense incurred therein because Mrs. Loche did suffer the inconvenience and expense of the treatments. This fact undoubtedly affected his decision not to award any future medical expenses for chiropractic treatment, which was within his broad discretion.

For these reasons, we affirm the judgment of the district court, at appellants’ cost.


author: PER CURIAM.

text:
    STATE of Louisiana, Appellee, v. John DUNN, Appellant.
    No. 16275-KA.
    Court of Appeal of Louisiana, Second Circuit.
    June 6, 1984.
    Rehearing Denied July 6, 1984.
    Writ Denied Sept. 28, 1984.
    ■ Sanders & Sanders by Martin S. Sanders, III, Winnfield, for appellant.
    William J. Guste, Jr., Atty. Gen., Baton Rouge, Charles B. Bice, Dist. Atty. by Douglas H. Allen, Asst. Dist. Atty., Winn-field, for appellee.

      Before HALL, FRED W. JONES, Jr. and SEXTON, JJ.
   PER CURIAM.

The defendant, John Dunn, was convicted by a jury of distribution of marijuana and sentenced to imprisonment at hard labor for four years. He has appealed, relying on three assignments of error.

Factual Context

On the last day of December, 1982, David Reed, a Jonesboro police officer, was working as an undercover agent in Winn Parish. During the course of his duties Reed encountered an individual named Barton at a bar. Following a conversation concerning the acquisition of marijuana, the two went to a private residence where they were shortly joined by the defendant.

Barton asked the defendant if he had any marijuana. The defendant allegedly replied in the negative but stated that he could procure some of the substance. Reed testified at the trial that he gave the defendant $30 and that Barton and defendant left the premises. They later returned and the defendant handed some marijuana to Reed.

Dunn was subsequently charged with the offense of distribution of marijuana.

Assignment of Error No. 1

Defendant contends that a proper foundation was not laid for introduction in evidence of the marijuana in question because the State did not establish that the marijuana transferred by Reed to the crime laboratory for analysis was obtained from Dunn.

To admit demonstrative evidence at trial the law requires that the object be identified. Identification can be visual, by testimony that the object exhibited is related to the case, or by showing chain of custody from time seized until offered in evidence. Identification is not required to be absolute, certain or wholly unqualified. Where there is some evidence for identification purposes, objection to the sufficiency goes to the weight rather than admissibility. For admission, it suffices if the preponderance of the evidence establishes that it is more probable than not that the object is connected with the case. State v. Sharp, 414 So.2d 752 (La.1982); State v. Davis, 411 So.2d 434 (La.1982).

In this case Officer Reed described his purchase of the marijuana from the defendant; its placement in a container with proper identifying description; and retention of the object in his locker in Jones-boro until transfer to the crime laboratory on January 3, 1983 for testing.

Susan Rutledge, a criminalist at the North Delta Crime Laboratory in West Monroe, described the receipt of the marijuana from Reed, its analysis as marijuana, and its preservation until the trial.

Under the circumstances, the State showed by this chain of custody that the marijuana in question was connected with the case. Therefore, the trial judge did not err in ruling that it was admissible in evidence.

This assignment of error is without merit.

Assignments of Error Nos. 1 and 3

In these assignments defendant argues the trial judge committed reversible error because of his refusal to instruct the jury on the subject of entrapment.

C.Cr.P. Article 802 obligates the trial judge to charge the jury as to the law applicable to the case. Under this rule, the trial judge is required to charge the jury, when properly requested, as to the law applicable to any theory of defense which the jurors could reasonably infer from the evidence. State v. Telford, 384 So.2d 347 (La.1980) and State v. Marse, 365 So.2d 1319 (La.1978). The issue presented by the defendant is whether or not the trial court was correct in finding that there was no evidence to support the special charge of the entrapment defense.

The law on entrapment as a defense is set forth in State v. Batiste, 363 So.2d 639 (La.1978):

“Under the generally accepted view an entrapment is perpetrated when a law enforcement official or a person acting in cooperation with such an official, for the purpose of obtaining evidence of the commission of an offense, solicits, encourages, or otherwise induces another person to engage in conduct constituting such offense when he is not then otherwise disposed to do so. ALI Model Penal Code, Tentative Draft § 2.10; W. LaFave and A. Scott, Criminal Law, § 48 (1972). This view, which has been labeled the ‘subjective’ or ‘origin of intent’ test for entrapment, reflects the views espoused in majority opinions of the United States Supreme Court, Hampton v. United States, 425 U.S. 484, 96 S.Ct. 1646, 48 L.Ed.2d 113 (1976); United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973); Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958); Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413 (1932). The lower federal courts are in accord. See, e.g., United States v. Esquer-Gamez, 550 F.2d 1231 (9th Cir. 1977); United States v. Garcia, 546 F.2d 613 (5th Cir.1977); United States v. Russo, 540 F.2d 1152 (1st Cir.1976); United States v. Jackson, 539 F.2d 1087 (6th Cir.1976). It is so called because it focuses attention on the defendant’s predisposition to' commit the offense as well as the actions of law enforcement officials. The inquiry under this test goes beyond the fact that criminal conduct was committed at the instance of law enforcement officials. Once government instigation is shown, the inquiry focuses upon the predisposition of the defendant. Under this test, the ultimate question is whether the inducement by the officers or the defendant’s own predisposition caused the criminal conduct in question. . See, 2 R. Cipes, Criminal Defense Techniques, §§ 30.01 et seq. (1976). States are not presently required by the federal constitution to recognize entrapment as a defense, but almost all have done so with a majority applying the ‘subjective’ approach.” (Emphasis added)

State v. Richards, 426 So.2d 1314 (La.1982) quoting State v. Batiste, supra.

Here the defendant denied selling marijuana to the police officer, Reed. Therefore, he never personally claimed entrapment. Reed stated that he merely handed the defendant $30 to procure some marijuana after the defendant told Barton he knew where some of the substance could be gotten.

It can thus be seen that there was no evidence at all that the undercover agent induced the defendant to engage in criminal conduct that he was otherwise not disposed to. Consequently, the trial judge did not commit error in his refusal to give the requested special instruction to the jury concerning entrapment.

These assignments of error lack merit. Decree

Defendant’s conviction and sentence are affirmed.


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    Shirley LANMAN, Plaintiff-Appellant, v. Ronnie VAILES and Ken-Pac, Defendants-Appellees.
    No. 16281-CA.
    Court of Appeal of Louisiana, Second Circuit.
    June 6, 1984.

      Gamm, Greenberg & Kaplan by Jack H. Kaplan, Shreveport, for defendant-appellant.
    Waddell, Irvin & Thomas by Kenneth C. Thomas, Shreveport, for defendants-appel-lees.
    Before PRICE, C.J., and MARVIN and SEXTON, JJ.
   MARVIN, Judge.

* In this appeal, the sustaining of defendant’s exception of no cause of action questions the applicability of the Louisiana homestead exemption laws to the defendant, who was the purchaser of plaintiff’s equity in the home when it was sold under execution of a federal tax lien.

After plaintiff’s equity in the home was sold and she failed to exercise her right of redemption under federal law, the purchaser sued to evict her in the Shreveport City Court. Plaintiff then brought the instant action in the district court, seeking an injunction of the eviction proceedings and recognition of her homestead rights under LSA-Const. Art. 12, § 9 and LSA-R.S. 20:1. Plaintiff’s appeal is from a judgment dismissing her action on defendant’s exception of no cause of action.

Plaintiff concedes that IRS proceeded legally and that defendant acquired title at the tax sale. See 26 U.S.C.A. §§ 6331-6339. She also recognizes that a tax debt- or’s homestead is not exempt under federal law. 26 U.S.C.A. § 6334. She argues that defendant acquired only her “equity” in the home, subject to prior mortgages, and that her equity should be made subject to the Louisiana homestead exemption by requiring defendant to pay her the amount of the exemption before she is required to surrender her homestead. We find no authority to support plaintiff’s ingenious argument and affirm the judgment.

We have recognized that a homestead claimant is akin to a creditor with respect to the proceeds of a judicial sale and that all claimants to the proceeds from the sale of the homestead should be paid according to their respective ranking. Ouachita Nat. Bank in Monroe v. Rowan, 345 So.2d 1014 (La.App. 2d Cir.1977). Plaintiff’s home was not sold at a judicial sale under Louisiana law, but under federal law, and this action does not concern distribution of the proceeds from the sale.

The federal tax lien primes the Louisiana homestead. 26 U.S.C.A. § 6334, Harvey v. Thomas, 239 La. 510, 119 So.2d 446 (1960). Even should we treat the homestead exemption as an encumbrance of some type against the property, federal law explicitly states that the deed executed under a federal tax levy “shall discharge [the] property from all liens, encumbrances, and titles over which the lien of the United States with respect to which the levy was made had priority.” 26 U.S.C.A. § 6339(c). Compare Fortier v. Fortier, 200 So.2d 901 (La.App. 4th Cir.1967).

Additionally, the Louisiana homestead exemption extends to the owner, who occupies, the home. See LSA-R.S. 20:1. Plaintiff was not the owner after she failed to exercise her redemption rights within the time allowed by federal law and federal authorities deeded the property to defendant.

At appellant’s cost, judgment is AFFIRMED.


author: HALL, Judge.

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    Justine Chanler McCOY, Plaintiff-Appellant, v. PHYSICIANS & SURGEONS HOSPITAL, INC., Et Al., Defendants-Appellees.
    No. 16,290-CA.
    Court of Appeal of Louisiana, Second Circuit.
    June 6, 1984.
    Writ Denied Oct. 5, 1984.
    Fayard & Snell by A.R. Snell, Bossier City, for plaintiff-appellant.
    Mayer, Smith & Roberts by Charles L. Mayer, Shreveport, for defendants-appel-lees, Physicians & Surgeons Hosp., Inc. and Jean Stone.

      Cook, Yancey, King & Galloway by Samuel W. Caverlee, Shreveport, for defendants-appellees, Dr. James L. Zum Brunnen.
    Before HALL, JASPER E. JONES and NORRIS, JJ.
   HALL, Judge.

Plaintiff sued a doctor, a nurse, and a hospital for injuries to her sciatic nerve resulting in leg and foot pain, weakness, and disability, allegedly caused by the defendants’ negligence while she was in the hospital for a disc operation. Plaintiff alleges that the injury was caused by the negligence of the nurse in giving her an injection which damaged the nerve, and by the negligence of the doctor in damaging the nerve in the course of the operation, in failing to supervise and instruct the nurse who gave the injection, and in failing to promptly recognize the problem and to promptly call in a neurological specialist to treat the injury.

The defendant doctor filed a motion for summary judgment, relying on depositions of the plaintiff, her husband, nurses, the defendant doctor, a neurosurgeon who examined and treated plaintiff, and an affidavit and attached reports of a neurologist who examined and treated plaintiff. In opposition to the motion, plaintiff relied on the same items and the original report submitted by the medical review panel which found that a question of fact existed as to the negligence and liability of all the defendants. A later report of the medical review panel found that there was no fault on the part of the defendant doctor.

The trial court, upon review of the depositions and reports, found that the nurse who allegedly gave the injection was an employee of the hospital and not of the doctor, and that the doctor was not legally responsible for the improper administration of the shot, if such was the case. The court also found that although plaintiff may be suffering from some residual disability normally associated with major back surgery, there is nothing in the record to indicate any action by the doctor led to the plaintiff’s severe disability in her leg which is normally not associated with such back surgery. The court found res ipsa loquitur to be inapplicable. The motion for summary judgment was granted and the plaintiff appealed. We reverse and remand.

On appeal, plaintiff does not contend that the doctor is responsible for the nurse’s negligence in giving the injection, nor does plaintiff contend that the doctor was negligent in his treatment or lack of treatment of plaintiff after the injury caused by the injection was discovered. Plaintiff contends only that the material offered in support of the motion for summary judgment does not preclude the possibility that the surgery performed by the defendant doctor was a factor, along with the injection, which contributed to plaintiff’s injury and resulting disability. Consequently, plaintiff argues there remains a genuine issue of material fact as to the doctor’s negligence during surgery being a contributory cause of plaintiff’s injury, and summary judgment is inappropriate.

The material presented in support of the motion for summary judgment indicates that the plaintiff’s injury to her sciatic nerve was caused by an injection in the plaintiff’s buttocks given by a nurse several hours after the surgery. The deposition testimony of the plaintiff and her husband is that she experienced severe pain in the buttocks and down her left leg at the time of the injection. The neurologist and the neurosurgeon, both of whom examined and treated plaintiff over an extended period of time, were of the opinion that her injury was caused by the injection. The neurosurgeon was of the opinion her injury was not caused by the surgery. He opined that had the nerve been damaged during surgery other complications which were not present here would have resulted. Both doctors acknowledged that plaintiff did have residual effects of the disc disease and surgery which were part of the problems which she experienced after the surgery. Both doctors relied in part on the history given to them by plaintiff and others in forming their opinions.

Summary judgment shall be granted when the pleadings, depositions, admissions, and affidavits disclose that there is no genuine issue as to material fact and that the moving party is entitled to judgment as a matter of law. LSA-C.C.P. Art. 966. Supporting and opposing affidavits shall be made on personal knowledge. LSA-C.C.P. Art. 967. That portion of an affidavit or deposition not based on personal knowledge should not be considered in deciding a motion for summary judgment. Statements in affidavits or depositions of the opinion or belief of an expert based on his special training and experience do not meet the requirement of personal knowledge. A statement of opinion is not sufficiently certain or probative to justify a conclusion that there is no issue of fact which should be determined by a trial on the merits. Expert opinion statements or testimony requires evaluation by the trier of fact as to probative value. A motion for summary judgment is not the proper vehicle for the trier of fact to evaluate evidence and determine the facts which are disputed. See Nelson v. Marrus, 343 So.2d 740 (La.App. 2d Cir.1977); McWhiney v. Travelers Ins. Co., 343 So.2d 736 (La.App. 2d Cir. 1976); Hidalgo v. General Fire & Casualty Company, 254 So.2d 493 (La.App. 3d Cir.1971); Warden v. Southwest Louisiana Hospital Association, 300 So.2d 590 (La.App. 3d Cir.1974). In all of the cited cases, the appellate courts reversed summary judgments granted on motions supported by affidavits or depositions of doctors expressing medical opinions.

All doubt concerning dispute as to a material issue of fact must be resolved against granting the motion in favor of trial on the merits. Summary judgment may not be used as a substitute for trial. If there is any doubt concerning an absence of dispute as to a material fact, a motion for summary judgment must be denied and the matter resolved in favor of trial on the merits. Odom v. Hooper, 273 So.2d 510 (La.1973).

Although the depositions and reports filed in this case cast great doubt that the plaintiff can meet her burden of proving negligence on the part of the defendant doctor which was a cause of her injury and resulting pain and disability, summary judgment is not appropriate. To the extent that the depositions and reports of the doctors express opinions as to the cause of the nerve injury and damage and the relationship of the surgery to the damage, they are not based on personal knowledge and may not be considered in ruling on a motion for summary judgment, although the doctors’ opinions would be admissible and would constitute probative evidence at trial. Consideration of the opinion evidence calls for a type of evaluation the trier of fact properly engages in only during or following a trial on the merits. Absent consideration of the statements of opinion by the doctors, it cannot be said that there is an absence of any doubt as to a dispute concerning the material fact of causation of the nerve damage and its relationship to the surgery performed by the defendant doctor. Therefore, the defendant doctor is not entitled to judgment as a matter of law and summary judgment is not appropriate in this case.

For the reasons assigned, we reverse the summary judgment granted by the district court, overrule the motion for summary judgment, and remand the action to the district court for further proceedings.

Reversed and remanded.


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    Milton L. DAVIS, Plaintiff-Appellant, v. ALLSTATE INSURANCE COMPANY, Defendant-Appellee.
    No. 16295-CA.
    Court of Appeal of Louisiana, Second Circuit.
    June 6, 1984.
    Writ Denied Oct. 5, 1984.

      Theus, Grisham, Davis & Leigh by J. Michael Hart, Monroe, for plaintiff-appellant.
    Hudson, Potts & Bernstein by W. Lee Perkins, Jr., Monroe, for defendant-appel-lee.
    Before PRICE, C.J., and MARVIN and SEXTON, JJ.
   MARVIN, Judge.

Plaintiff appeals a judgment rejecting his demands against his UM insurer for personal injury damages caused by the negligence of an uninsured fellow employee in a motor vehicle while both were in the course and scope of their employment and were covered by the worker’s compensation law. LRS 23:1032, 1166.

Asking us to either ignore or distinguish authority to the contrary, plaintiff argues that he should be allowed to recover from his own UM coverage because his carrier sold him UM coverage for such a situation and without regard to whether or not the uninsured tortfeasor was his co-employee and because his recovery would not place any burden on his employer or co-employee. This argument does not present a novel issue, as appellant suggests, and has been considered in several cases and by scholarly writers. See A. Johnson, Worker’s Compensation, Developments in the Law, 1981-1982, 43 La.L.R. 630-632 (1982), and cases discussed therein.

The UM insurer’s policy obligation is to pay “all sums which the insured ... shall be legally entitled to recover as damages from the ... operator of an Uninsured Automobile ...” LRS 22:1406 D. As Professor Johnson explains, tort damages are no longer the remedy for workplace injuries. No tort is committed when one co-employee negligently injures another. 43 La.L.R. at p. 631. See also Dandridge v. Fidelity & Casualty Co., 192 So. 887 (La.App. 2d Cir.1939).

Certainly, the purchase of UM coverage is voluntary, and it may be that a person should be allowed, through UM or other policy provisions, to purchase “tort” coverage for workplace automobile injuries caused him by co-employees. Under the present state of the case law interpreting UM coverage in the light of the worker’s compensation law, however, the co-employee is not a “real” tortfeasor and has not committed a tort against the injured co-employee under CC Art. 2315. That co-employee, although at fault or negligent, is not legally liable to pay tort damages to the injured employee. In the absence of such “legal liability,” there is no person from whom the injured employee is “legally entitled to recover damages” under the UM policy or statute, at least, not until such time as the legislature provides or makes an exception, to the contrary. 43 La.L.R. 631-632.

As Professor Johnson states, the recent decisions cited in footnote one, without detailed analysis, have “properly denied” such claims against the UM carrier.

At appellant’s cost, judgment is AFFIRMED.

      . Fox v. Commercial Union Ins. Co., 413 So.2d 679 (La.App. 3d Cir.1982); Beard v. Assumption Parish Police Jury, 413 So.2d 923 (La.App. 1st Cir.1982), writ denied; Gray v. Margot, Inc., 408 So.2d 436 (La.App. 1st Cir.1981); Carlisle v. State, Dept. of Transp. & Dev., 400 So.2d 284 (La.App. 3d Cir.1981), writs denied.
      See also Johnson v. Fireman's Fund Ins. Co., 425 So.2d 224 (La.1982); Breaux v. Government Emp. Ins. Co., 369 So.2d 1335 (La.1979).

      . Fox, Beard, Gray, and Carlisle, cited in footnote 1, are there discussed.


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    THERMAL SUPPLY OF LOUISIANA, INC., Plaintiff-Appellant, v. Michael T. SUMTER and Leonard Sumter, Sr., d/b/a Sumter Plumbing Company, Defendant-Appellee.
    No. 16297-CA.
    Court of Appeal of Louisiana, Second Circuit.
    June 6, 1984.
    Miller, Titone, Dawson & Askew by Joseph P. Titone, Shreveport, for plaintiff-appellant'.
    Leonard Sumter, Sr., in pro. per.
    Before PRICE, C.J., and HALL and NORRIS, JJ.
   HALL, Judge.

The plaintiff, Thermal Supply of Louisiana, Inc., filed suit against Michael T. Sumter and Leonard Sumter, Sr., d/b/a Sumter Plumbing Company, to recover an unpaid balance of $1,169.95 due on an open account in connection with the sale of plumbing supplies. Leonard Sumter, Sr. filed an answer in proper person and represented himself at the trial of this matter. Michael T. Sumter filed no answer and made no appearance at trial. Following trial, judgment was rendered rejecting plaintiffs demands against Leonard Sumter, Sr. while reserving plaintiffs rights against Michael T. Sumter. From that judgment, the plaintiff devolutively appealed. We reverse and render judgment for the plaintiff.

The facts of this case are as follows. In 1976, Leonard and his son, Michael Sumter, went into the plumbing business together in Shreveport. On June 18, 1976, Leonard Sumter, Sr.., on behalf of the partnership, executed an application for credit with the plaintiff corporation which was accepted. From that point until the spring of 1980, the Sumters purchased plumbing supplies from the plaintiff on credit and paid their bills without fail.

In April or May 1980, the partnership was dissolved, its assets liquidated, and all of its outstanding debts to the plaintiff paid in full. No notice of dissolution or liquidation was given to any creditor of the partnership, including the plaintiff corporation. Thereafter, Leonard Sumter joined with his son in a grocery business and they continued in that endeavor until the store was consumed by fire.

After destruction of the grocery store, Michael Sumter decided to reenter the plumbing business. His father decided not to become involved in this venture. The plumbing operation established by Michael Sumter did business under the name previously utilized by him and his father when they were in business together, Sumter Plumbing Company. Although the new business was established at a different location than the old concern because that building had been sold upon liquidation of the prior plumbing company, the new company retained not only the same name but also the same post office address for billing purposes as utilized by the old Sumter Plumbing Company. Additionally, at least one employee of the former company was hired by the new Sumter plumbing concern and signed for merchandise received from plaintiff. Despite his knowledge of these matters, Mr. Sumter, Sr. did not notify the plaintiff that he was not involved in the new Sumter Plumbing Company opening in Shreveport, the same city in which the former plumbing partnership had operated until approximately one year earlier.

Mistakenly thinking itself to still be dealing with the old Sumter Plumbing Company of which Leonard Sumter, Sr. was a member, the plaintiff extended credit to the new Sumter Plumbing Company without requiring the execution of a new credit application as required by company policy and operating procedure. From July 1981 through August 1982, the new Sumter Plumbing Company purchased $1,169.95 worth of plumbing supplies from plaintiff on account. Although not actually involved in the business, Leonard Sumter signed one of the invoices sued on by the plaintiff, having accompanied one of his son’s employees to the plaintiffs place of business to pick up merchandise. On December 9, 1982, Thermal Supply filed this suit to recover that past due sum.

In its written opinion, the trial court noted that in the credit application signed by Leonard Sumter, Sr. he promised to pay plaintiff all indebtedness “owing by me”. The trial court reasoned that since Leonard Sumter had gone out of the plumbing business approximately one year prior to the time when the indebtedness sued upon began to be incurred and was not involved in the plumbing company opened by his son, he never incurred any of the indebtedness sued upon in his own behalf and, therefore, was not liable to the plaintiff. Accordingly, the trial court rendered judgment rejecting plaintiffs demands against Leonard Sumter, Sr., while reserving plaintiffs rights against Michael T. Sumter.

The trial court’s conclusion that Leonard Sumter was not involved in his son’s plumbing business when the debt at issue was incurred is amply supported by the record. From that conclusion, however, it does not necessarily follow that Leonard Sumter, Sr. is in no way liable for the sum due on this open account.

The basis for Leonard Sumter’s liability in this case lies in his failure to notify the partnership’s creditors of his withdrawal from the partnership or its dissolution. In the absence of such notice, the withdrawing partner is not exonerated from responsibility for subsequent engagements, made in the name of the partnership, with persons previously in the habit of dealing with the partnership. R. Marsh Denman & Co. v. Dosson, 19 La.Ann. 9 (1867). See also Schorten v. Davis and Brother, 21 La.Ann. 173 (1869); Fowler Commission Co. v. Gray & Keener, 16 La.App. 167, 133 So. 470 (2d Cir.1931); Marquette Cloak & Suit Co. v. Netter & Meyer, 151 So. 820 (La.App.2d Cir.1934); Modern Appliance 6 Supply Co. v. B.F. Ibos & Sons, 16 So.2d 552 (La.App.Orl.Cir.1944); Lowe v. Penny, 7 La.Ann. 356 (1852); Montgomery-Ferguson Co. v. William T. Hardie & Sons, 139 La. 644, 71 So. 931 (1916); Crowley Trust & Savings Bank v. Hollier, 161 La. 1079, 109 So. 907 (1926). Contrast with Trane Company v. Williams, 143 So.2d 119 (La. App. 1st Cir.1962) and Biloxi Canning and Packing Co., Inc. v. Foti and Danna, 333 So.2d 762 (La.App. 4th Cir.1976) in which sufficient notice of withdrawal or dissolution was given.

It is undisputed that the creditors of the former partnership, including the plaintiff, received no notice of Leonard Sumter, Sr.’s withdrawal from or the dissolution of the Sumter Plumbing Company which occurred in April or May 1980. Furthermore, the plaintiff received no notice that the Sumter Plumbing Company which purchased goods from it on credit in July 1981 was not the same partnership composed of Leonard Sumter, Sr. and Michael T. Sumter.

Under the facts of this case, we find the plaintiff creditor’s belief that it was dealing with the formerly-existing partnership reasonable and entirely justified. The new debtor had not only the same name as the old one but also the same mailing address for billing purposes. While it is true the location of the debtor’s place of business had changed, the new Sumter Plumbing Company continued to pick up the merchandise it ordered from the plaintiff at the plaintiff’s place of business, thereby conducting its transactions with the plaintiff in the same manner as its predecessor partnership. There is no indication in the record that any merchandise was ever delivered by the plaintiff to either of the two locations occupied by the Sumter companies. Additionally, the record reflects that at least one individual was employed by both Sumter companies and signed for and picked up part of the merchandise at issue at the plaintiff’s place of business.

There was no duty on the part of the plaintiff creditor to inquire if the Sumter Plumbing Company with which it dealt in July 1981 was the same entity it had previously extended credit to without incident for almost four years between the dates of June 1976 and April or May 1980. Plaintiff’s employees testified that several months routinely elapse between purchases or series of purchases from it by the vast majority of its clientele. Given this sporadic activity as the normal pattern of business transactions between the plaintiff and its customers, the gap of a little more than one year between purchases by Sumter Plumbing Company is not so inordinately long as to raise suspicion or obligate the plaintiff to further inquiry. Consequently, the plaintiff’s assumption that it was merely once again extending credit to the Sumter partnership was reasonable under these circumstances.

It is Leonard Sumter, Sr.’s failure to give notice to the plaintiff of his withdrawal from or the dissolution of the Sumter partnership which gives rise to his liability for this debt. His failure to give notice, especially when he knew of his son’s reopening of the business as a sole proprietorship, was an unreasonable disregard of commercial practices and an invitation for exactly this type of risk. It was reasonable to assume, given the circumstances under which the business was reopened, that a creditor of the former partnership might extend credit to Michael T. Sumter’s company under the mistaken impression that it was dealing with the former partnership and based upon that prior entity’s good payment record without taking those precautions normally associated with the opening of a new credit account. Consequently, Leonard Sumter, Sr. should be and is hereby held liable for this debt incurred by his son’s company.

Thermal Supply of Louisiana, Inc., extended credit to Michael T. Sumter’s company on the basis of the promise and payment record of the partnership which preceded it. The creditor believed itself to be dealing with the partnership of which Leonard Sumter, Sr. was a member. The credit application relied upon by the plaintiff creditor is an application on behalf of the partnership executed by Leonard Sumter, Sr. Consequently, the creditor must be held to have looked to the partnership and its partners for payment in accordance with the credit contract and the law of partnership.

The application executed by Leonard Sumter in no way purports to be a personal guarantee by him of all the partnership debts, nor does the agreement provide for solidary liability of the partners for partnership debts. Consequently, Leonard Sumter, Sr.’s liability in this instance is governed by the law of partnership.

The debt at issue was incurred between July 1981 and August 1982. The law applicable to this controversy is LSA-C.C. Art. 2817 as amended by Act 150 of 1980, effective January 1, 1981, which provides for virile share liability of partners for partnership debts. Consequently, Leonard Sumter, Sr. is responsible for one-half of the sum due on the open account. See 42 La.L.Rev. 1440-48 for a discussion of the concept of virile liability as embodied in the 1980 revision of Louisiana’s partnership law.

Accordingly, it is hereby ordered, adjudged, and decreed that there be judgment herein in favor of the plaintiff, Thermal Supply of Louisiana, Inc., and against the defendant, Leonard Sumter, Sr., in the full sum of $584.98, with twelve per cent (12%) per annum interest thereon from September 10, 1982, until paid, and all costs of this suit including the cost of appeal. It is further ordered, adjudged, and decreed that all rights and/or causes of action the plaintiff might possess against the defendant, Michael T. Sumter, are hereby reserved. Reversed and rendered.


author: SEXTON, Judge.

text:
    Ervin K. ODOM, Sr., Plaintiff-Appellant, v. Robert L. ELLIOTT, Defendant-Appellee.
    No. 16301-CA.
    Court of Appeal of Louisiana, Second Circuit.
    June 6, 1984.

      Joel M. Sermons, Shreveport, for plaintiff-appellant.
    Rothell & Cohn, Ltd. by David M. Cohn, Mansfield, for defendant-appellee.
    Before PRICE, MARVIN and SEXTON, JJ.
   SEXTON, Judge.

Plaintiff filed suit seeking to have the boundary between his property and that of defendant judicially fixed according to plaintiff’s title. The trial court granted judgment in defendant’s favor, fixing the boundary between the parties’ property in accordance with the boundary agreement entered into by the parties’ ancestors in title. We affirm.

Plaintiff in this cause is Ervin K. Odom, Sr., who owns property along the east shore of the Toledo Bend Reservoir in De-Soto Parish. The defendant is Robert L. Elliott, who owns the property immediately to the north of Mr. Odom’s land.

The plaintiff owns a five plus acre tract along the east shore of Toledo Bend Reservoir. Defendant owns two small contiguous lots located immediately to the north of plaintiffs property. Defendant’s lots constitute part of the Pleasure Port Subdivision, and border directly on plaintiff’s property. Plaintiff’s and defendant’s properties thus share a common border, this common border forming the northern boundary of plaintiff’s property and the southern boundary of defendant’s property. The relative geographical location of the parties’ tracts may be graphically represented as follows:

Plaintiff filed suit on August 4, 1980, essentially seeking to having the boundary between his property and that of the defendant judicially fixed in accordance with the title description contained in plaintiff’s deed. The defendant’s answer pled, among other defenses, acquisitive prescription. The parties’ claims were tried July 25, 1983. In a judgment rendered September 30, 1983, the trial court rejected plaintiff’s petition to judicially fix his northern boundary according to his title. The trial court instead rendered judgment fixing the boundary in accordance with a boundary agreement confected by both parties’ ancestors in title in 1973.

The most important factor in this case is the fence which forms the northern boundary of plaintiff’s property and the southern boundary of defendant’s property. It was along this fence line that the parties’ ancestors in title fixed the boundary between the respective properties in 1973. It was this fence line that the trial court decreed to be the boundary between the tracts of the plaintiff and the defendant. The record reveals that the fence was in place in 1927. The record reveals, moreover, that remnants of the same fence have continued in existence until the present date, with the fence currently serving as the boundary between the Pleasure Port Subdivision— which includes defendant’s property — and the plaintiff’s property.

The record shows that defendant’s property was conveyed from Tom McKay to David Boyd in 1948. David Boyd farmed the property, pastured a horse on it, and testified that a net wire fence formed the southern boundary of his property. Remnants of this same fence presently separate the property of plaintiff and defendant. The property was subsequently sold by David Boyd to his brother, Willard W. Boyd in 1955. Willard Boyd continued to farm the property, as his brother had before him. The property was sold from Willard Boyd to J.L. Nunley in 1958. Neither Willard Boyd nor J.L. Nunley, Sr. were available to testify. However, David Boyd testified that the wire fence continued to exist during the ownership of these two men. A portion of the property was sold by J.L. Nunley, Sr., to his son, J.L. Nunley, Jr., in 1963. The property retained by J.L. Nunley, Sr. was conveyed to land developer M.L. Bussey in 1968. J.L. Nun-ley, Jr. also sold his share of the property to M.L. Bussey in 1969. Thus, both J.L. Nunley, Sr. and his son conveyed their interest in the tract, of which the wire fence forms the southern boundary, to M.L. Bus-sey. Bussey developed this tract into what is now Pleasure Port Subdivision. Mr. Bussey sold a lot out of this subdivision to the defendant, Mr. Elliott, in 1974. Mr. Bussey sold another lot in Pleasure Port Subdivision to the defendant in 1975. The defendant has performed numerous posses-sory acts on these contiguous lots, placing a trailer home there, and erecting a wooden fence approximately one foot north, or just inside of the wire fence line.

In 1973, a boundary agreement was entered into between M.L. Bussey and Howard Fisher which set the boundary between their properties along the above mentioned wire fence. M.L. Bussey, as discussed above, is the ancestor in title of the defendant, Mr. Elliott. Howard Fisher is the ancestor in title of the plaintiff, Mr. Odom, having conveyed the tract to Mr. Odom in 1974.

Although the fence was substantially removed in 1974 by Mr. Elliott, portions of it remained in place. Some posts were left standing, and some wire was left nailed to trees that had served as fence posts in the fence line. Thus, although the structural integrity of the fence was substantially obliterated, it retained its viability as a visible wire boundary. It is significant in this respect that Mr. Odom unequivocally testified that he had not performed any possessory acts north of the fence line. It thus appears that the dilapidated fence line functionally served as the de facto boundary between the property of the plaintiff and defendant.

In a judicial fixing of boundaries, the court shall fix boundaries according to the ownership of the parties. LSA-C.C. Art. 792. When both parties rely on title alone, the boundary shall be fixed according to title. LSA-C.C. Art. 793. In cases where both parties rely on title, the title of both parties encompasses the same real property, and the parties trace their titles to a common author, “preference shall be given the more ancient title.” LSA-C.C. Art. 793. However, acquisitive prescription may be pled in a boundary action. Fruge v. Lyons, 373 So.2d 220 (La.App. 3d Cir.1979). Moreover, where either party proves acquisitive prescription, “the boundary shall be fixed according to limits established by prescription rather than titles.” LSA-C.C. Art. 794. Simply stated, prescriptive ownership eclipses title ownership. Where neither party proves ownership by title or acquisitive prescription, boundaries are fixed according to the parties’ possession — rather than ownership. LSA-C.C. Art. 792.

Defendant’s legal claim to the ownership of the property north of the fence line is palpably justified by any of three theories of prescription. Defendant could arguably establish his title by thirty years possession, by ten years possession with good faith and just title, or by boundary prescription. However, it is sufficient, for the purposes of this appeal, that defendant’s claims be analyzed solely in terms of thirty year prescription.

A party may acquire ownership of immovable property when he and his ancestor in title have corporeally possessed it for thirty years, or commenced corporeal possession of it and thereafter sustained civil possession thereof — the intent to possess as owner. In order to confer prescriptive title, possession must be underlied by the intent to possess as owner, and such possession must be continuous, uninterrupted, peaceable, public and unequivocal. The title conferred by acquisitive prescription extends only to that property which has actually been possessed, unless one possesses under title, in which case possession of 'part of an immovable under title is deemed to be constructive possession to the limits of title. Furthermore, thirty years acquisitive prescription confers ownership on the possessor without need of good faith or just title. LSA-C.C. Arts. 3421, 3424, 3426, 3431, 3446, 3476, 3485, 3486, 3488.

A possessor may add or tack his possession to that of his ancestors in title in order to cummulate the thirty years necessary to perfect prescriptive title. In order to tack the possession of his possessory predecessors, the possessor must establish privity of title with said predecessors. LSA-C.C. Arts. 3441, 3442. Moreover, where a party is attempting to establish thirty years acquisitive prescription — as opposed to boundary prescription — that privity of title must encompass the property to which the party claims prescriptive. Privity of title is required to tack under either boundary prescription or the general prescription articles. Under the general prescription provisions, that privity of title must encompass the land to which prescriptive title is claimed. Under the boundary prescription provisions, on the other hand, it is sufficient that the requisite privity of title encompass land adjacent to the property to which prescriptive title is claimed. This crucial distinction was articulated at length in this court’s decision in Brown v. Wood, 451 So.2d 569 (La.App. 2d Cir.1984).

It is clear, from the forestated facts and legal principles, that defendant has perfected prescriptive title to the property lots in Pleasure Port Subdivision presently occupied by him up to the wire fence which forms the southern boundary of his property. The defendant and his possesso-ry predecessors have corporeally possessed the land up to the fenceline for over a thirty year period, ranging from at least as far back as 1949 until the present. Moreover, defendant has established privity of title with his possessory predecessors, introducing an unbroken chain of title extending back until 1949. Lastly, defendant’s privity of title encompasses the land to which he claims prescriptive title: the title of the defendant and his predecessors encompasses the land in question up to the fence line. It therefore follows that the defendant has perfected prescriptive title to the land occupied by him directly to the north of the fence line. The trial court’s decision fixing the boundary at the fence line in accordance with the 1973 boundary agreement is thus correct.

Plaintiff has claimed at trial and on appeal that his deed calls place his northern border some 60 feet north of the fence line, and thus 60 feet onto the land presently occupied by the defendant. Plaintiff thus asserts that both surveys used in the ease are in error and that under such a circumstance the law requires that both the surveys should be rejected and the case remanded for an independent survey. However, since this case is decided on prescriptive grounds, such is unnecessary. It is axiomatic under Louisiana’s civil law of property that ownership perfected by prescription eclipses ownership by written title, and that where acquisitive prescription is proven, boundaries must be set in accordance with the bounds of acquisitive prescription rather than with the deed calls of written title. LSA-C.C. Art. 794.

The trial court’s judgment is for the foregoing reasons affirmed at appellant’s cost.

AFFIRMED.


author: GULOTTA, Judge.

text:
    CITIES SERVICE COMPANY v. Ellis Jay PAILET.
    No. CA-1507.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 6, 1984.
    Rehearing Denied July 24, 1984.

      Clarence P. Favret, Jr., Pavret, Pavret, Demarest & Russo, New Orleans, for appellant.
    Ellis Jay Pailet, in pro. per.
    Before GULOTTA, BARRY and WIL- ' LIAMS, JJ.
   GULOTTA, Judge.

Cities Service Company appeals the dismissal of its suit on open account for $1,148.70, representing purchases made on defendant Ellis Jay Pailet’s Citgo credit card. We reverse.

The disputed invoices, except for one, were for charges made at a Pearl, Mississippi Citgo Service Station from January 21, 1982, through May 20, 1982. Copies of the invoices, signed “E. Pailet” and a monthly statement from February through June, 1982 were introduced into evidence.

John Bilbow, plaintiffs collection supervisor, testified that between April 21, 1982, and July 20, 1982 Cities Service made numerous phone calls to Pailet and left messages with his secretary in an attempt to collect on the delinquent account. According to Bilbow, Pailet returned only the call of May 4, to say that he was “checking on something”. The card was cancelled, subsequently recovered by a service station, and returned to Cities Service. Plaintiff had no record, however, indicating that the card had been lost or stolen, or that the charges were unauthorized.

Defendant Pailet, on the other hand, testified that he had given his credit card to Connie Jordan, an employee of his wholesale beauty products company, for a limited business purpose in Gulfport, Mississippi. According to Pailet, before receiving calls from plaintiff about the balance due, he had “revoked” Jordan’s authority to use the card. After Cities Service’s call in “the beginning of 1982”, Pailet called Jordan who informed him that she had stopped using the card and no longer had it. In response to a question whether Jordan told him what had happened to the card, Pailet stated, “I think she said she lost it. I just let it go at that.” Jordan, the employee, did not testify.

Pailet further testified that the signatures on the invoices at issue are definitely not his, and that the charges in Pearl, Mississippi were 100 miles from the Gulf-port area where Jordan was authorized to use the card. He felt that he had notified Cities Service “very specifically” that he no longer had the credit card and that the billings were not authorized.

In written reasons for judgment dismissing plaintiffs suit, the trial judge stated that he believed Pailet’s testimony, and concluded that he had not signed any of the invoices or authorized any of the purchases.

This case arises under the Truth in Lending Act, 15 U.S.C.A. Section 1643. Pursuant to this statute, in an action to enforce full liability for charges made, a card issuer has the burden of proving that the use of the credit card was “authorized”. A cardholder is not liable for “unauthorized” use of his card that occurs after he has notified the card issuer that an unauthorized use has or may occur. Furthermore, the cardholder's liability for unauthorized use occurring before such notification is limited to $50.00, and may be imposed only if the card issuer meets the conditions set forth in Section 1 of the statute.

Applying the statute to the facts of the instant case, we conclude that Pailet is not liable for any invoices dated after he had notified the company that the changes may not have been authorized. Although the evidence is conflicting, a reasonable inference from Pailet’s testimony is that he specifically notified Cities Service as early as April 21, 1982. Considering this testimony, and recognizing the trial judge’s express credibility determination in Pailet’s favor, we conclude charges on the card made after April 21 were not authorized, and cannot be recovered by plaintiff.

The more troubling question, however, is whether or not the unpaid invoices dated prior to April 21, 1982 are recoverable as “authorized” charges.

Although we have found no Louisiana authority directly on point, an Alabama decision, Martin v. American Express, Inc., 361 So.2d 597 (Ala.Civ.App.1978), is persuasive. In Martin, a cardholder gave his credit card to his associate for use in their joint business venture, but orally authorized the agent only to charge up to $500.00 on the card. When the associate ignored the cardholder’s directions by charging in excess of this amount, the card holder attempted to avoid payment by relying on the $50.00 maximum liability provision of the Truth in Lending Statute for “unauthorized” use of the card.

In rejecting the cardholder’s argument, the Martin court concluded the statutory limit of liability for unauthorized use of a credit card may be warranted where the card is obtained from the cardholder “as a result of loss, theft or wrongdoing” but not “where a cardholder voluntarily and knowingly allows another to use his card and that person subsequently misuses the card”.

Like the cardholder in Martin, Pailet loaned his card to his employee for a limited business purpose. Although there is no evidence that Pailet’s employee misused the card, neither is there a concrete explanation in the record to show what happened to the card after Pailet entrusted it to her. Pailet’s vague testimony that he thought Jordan said she had lost it sheds little light, if any, in establishing the charges as “unauthorized”. In the absence of sufficient evidence that the card was obtained from Pailet as a result of loss,' theft or wrongdoing, he is responsible for purchases made through the use of his card prior to April 21, 1982.

The balance due on Pailet’s account for charges through April 29, 1982 was $698.75. We deduct a $50.25 charge dated April 27 since it was made after Pailet’s notification to plaintiff on April 21. Plaintiff is therefore entitled to recover $648.50.

Having so concluded, we reverse and set aside the trial court’s judgment dismissing plaintiff’s suit. Judgment is now rendered in favor of plaintiff, Cities Service Company, and against defendant, Ellis Jay Pailet, in the sum of SIX HUNDRED AND FORTY-EIGHT AND 50/100 DOLLARS, ($648.50), together with legal interest from date of judicial demand until paid, and for all costs.

REVERSED AND RENDERED.

      . Sec. 1643. Liability of holder of credit card
      Limits on liability
      a) (1) A cardholder shall be liable for the unauthorized use of a credit card only if—
      (A) the card is an accepted credit card;
      (B) the liability is not in excess of $50;
      (C) the card issuer gives adequate notice to the cardholder of the potential liability;
      (D) the card issuer has provided the cardholder with a description of a means by which the card issuer may be notified of loss or theft of the card...;
      (E) the unauthorized use occurs before the card issuer has been notified that an unauthorized use of the credit card has occurred or may occur as the result of loss, theft or otherwise; and
      (F) the card issuer has provided a method whereby the user of such card can be identified as the person authorized to use it.
      (2) For purposes of this section, a card issuer has been notified when such steps as may be reasonably required in the ordinary course of business to provide the card issuer with the pertinent information have been taken, whether or not any particular officer, employee, or agent of the card issuer does in fact receive such information.
      Burden of proof
      (b) In any action by a card issuer to enforce liability for the use of a credit card, the burden of proof is upon the card issuer to show that the use was authorized or, if the use was unauthorized, then the burden of proof is upon the card issuer to show that the conditions of liability for the unauthorized use of a credit card, as set forth in subsection (a) of this section, have been met.
      Liability imposed by other laws or by agreement with insurer
      (c) Nothing in this section imposes liability upon a cardholder for the unauthorized use of a credit card in excess of his liability for such use under other applicable law or under any agreement with the card issuer.
      Exclusiveness of liability
      (d) Except as provided in this section, a cardholder incurs no liability from the unauthorized use of a credit card.


text:
    Patricia Whitty Johnson, Wife of Richard JOHNSON v. Richard JOHNSON.
    No. CA-1641.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 6, 1984.
    Rehearing Denied July 24, 1984.
    Writ Denied Oct. 26, 1984.

      Russ M. Herman, Steven J. Lane, Herman, Herman & Katz, New Orleans, for appellee.
    Philip R. Riegel, Jr., Parlongue & Riegel, New Orleans, for appellant.
    Before GULOTTA, BARRY and WILLIAMS, JJ.
   GULOTTA, Judge.

This is an appeal from a judgment awarding a mother $1,200.00 per month in post-divorce alimony and $450.00 per month for support of her 13 year old daughter. We reduce the alimony award to the sum of $730.00 per month, but otherwise affirm the judgment.

Both parents are professional artists. The father is a salaried university professor and earns additional income from the sale of his art work. The mother is self-employed in a studio at her home.

On September 30, 1980, the trial court ordered the father to pay $650.00 per month in alimony pendente lite and $450.00 per month in child support plus his daughter’s tuition and school lunch fees. On December 22, 1982, the court awarded the mother $1,800.00 per month permanent alimony and maintained the child support, tuition and lunch fees in the prior amounts. On the husband’s motion for a new trial, however, in a February 18, 1983 judgment, the court reduced the permanent alimony to $1,200.00 per month and the child support to $450.00 per month, without any provision for tuition or school lunches. From this February 18, judgment both parties have appealed.

Although not contesting the child support award, the father contends the mother has sufficient means for her support and is not entitled to alimony. Alternatively, he argues the alimony awarded is excessive. The mother, seeking an increase only in the child support award, contends that the father should bear the costs of tuition and school lunches in addition to the $450.00 per month awarded by the trial court.

PERMANENT ALIMONY

The evidence is not in serious dispute. In 1982, the father had a total gross income of approximately $46,050.00, comprised of $26,500.00 in salary as an associate professor of Fine Arts at the University of New Orleans, and $19,555.00 in proceeds from the sale of his paintings. His 1982 net income, however, was approximately $2,200.00 per month, consisting of approximately $1,600.00 in monthly take-home pay from the university and $600.00 in monthly net income from his art sales, after expenses and taxes. ' At the time of the hearing, in December, 1982, he had $5,000.00 in accounts receivable, approximately $6,000.00 in savings, and two vehicles valued at $7,500.00.

The 39 year old mother has a Master of Fine Arts Degree, and has been self-employed as a professional artist since the separation in 1980. During 1982, she received approximately $10,000.00 in income from art sales, resulting in a net profit of approximately $6,000.00 after expenses. Her savings in a money market fund produced an additional $40.00 to $70.00 per month in interest income in 1982. At the time of the December, 1982 hearing, her balance in the fund was $6,500.00. She owned a house appraised at $118,000.00 and subject to an outstanding $50,000.00 mortgage. In addition to an automobile valued at $8,300.00, with an outstanding loan in the same amount, she expected to receive approximately $4,000.00 from a pending contract to sell two paintings.

The daughter’s tuition at a private school amounts to $3,500.00 per year, plus $500.00 in lunch and school related expenses. The mother listed living expenses of $2,000.00 per month for herself, and $489.00 per month for her daughter, excluding tuition, lunch money and housing.

According to the mother, she has not made enough money from her art work to support herself, and has been dependent upon alimony during the two year separation. She further stated that she has depleted her savings to pay living expenses.

The mother intends to continue her profession as a full-time, self-employed artist, and has not sought employment in other fields. Although she had taught secondary school before receiving her graduate degree, and had applied for a teaching position at the New Orleans Academy of Fine Arts, she did not pursue it because of a difference in educational philosophy with her prospective employer.

We reject the father’s contention that the mother has failed to show insufficient means for entitlement to post-divorce alimony. According to the father, his college educated ex-wife has the capacity to be self-supportive and is capable of more lucrative gainful employment. He argues that she has “considerable marketable skills”, and that his payment of post-divorce alimony effectively requires him to “subsidize” her art career. We disagree.

The claimant spouse’s earning capacity is one factor to be considered in determining the entitlement and amount of alimony after divorce. LSA-C.C. Art. 160; Vorisek v. Vorisek, 423 So.2d 758 (La.App. 4th Cir.1982). Nonetheless, while earning capacity is a consideration, it does not necessarily follow that the spouse should be required to take immediate employment of any nature immediately following a separation and divorce. Difficulty in finding employment suitable for the spouse’s age, training and ability is also a proper consideration. Geter v. Geter, 404 So.2d 1283 (La.App. 2nd Cir.1981).

The mother in the instant case has talent and training for a career as a professional artist. She is pursuing that career full-time through self-employment in her studio at home, which has afforde’d her some income, although presently insufficient, to meet the basic needs of herself and her daughter. Although the father argues that the mother possesses “marketable skills” entitling her to greater income, we cannot say her rejection of one employment opportunity in teaching art establishes lack of fulfillment of earning capacity to the extent of precluding her from receiving alimony.

Under these circumstances, we find no error in the judgment awarding after divorce alimony.

We do find merit, however, to the husband’s alternate contention that the amount of permanent alimony awarded is excessive.

LSA-C.C. Art. 160 provides that permanent periodic alimony shall not exceed one-third of the payor-spouse’s income. In evaluating “income” within the meaning of this codal article, the trial judge considers both gross and net income. Super v. Super, 397 So.2d 1084 (La.App. 4th Cir.1981), writ denied 399 So.2d 583 (La.1981). Although gross income may be the proper figure in some cases, the amount awarded is determined in light of all the circumstances of the particular record. Firstley v. Firstley, 427 So.2d 76 (La.App. 4th Cir.1983).

In the instant case, although alimony of $1,200.00 per month may not appear excessive in light of Mr. Johnson’s 1982 gross annual income of $46,000.00, the award greatly exceeds the one-third maximum allowed by LSA-C.C. Art. 160 when his net income of only $2,200.00 per month is considered. Significantly, he has no control over his payroll deductions from his gross salary at the university, and there is no showing that the expenses deducted from his gross art sales are unreasonable or padded. Under the circumstances, therefore, his net rather than gross income is the only meaningful figure to be considered in determining the alimony award.

Accordingly, considering Mr. Johnson’s net income of $2,200.00 per month, we conclude the trial court’s award of $1,200.00 per month in permanent alimony is excessive, and must be reduced to the sum of $730.00 per month.

CHILD SUPPORT

Turning now to the mother’s appeal of the $450.00 per month child support award, we find no error. The mother contends the trial judge erred in failing to include the cost of tuition and school lunches in addition to the monthly support obligation.

Although the judgment relieves the father from his pre-divorce obligation to pay the daughter’s tuition and lunch fees totaling approximately $4,000.00 per year, w.e find no abuse of the trial judge’s wide discretion in setting the child support. Bettencourtt v. Bettencourtt, 407 So.2d 804 (La.App. 4th Cir.1981); Liles v. Liles, 369 So.2d 479 (La.App. 4th Cir.1979). The daughter’s needs will continue to be met through the father’s support contribution, as well as the mother's income, which is supplemented by alimony. Under these circumstances, we find no basis for increasing the child support award.

DECREE

For the foregoing reasons, the judgment of February 18, 1983, insofar as it orders Richard Johnson to pay Patricia Whitty Johnson permanent alimony in the sum of $1,200.00 per month, is amended to provide that he pay her a reduced amount of permanent alimony in the sum of $730.00 per month, effective from the date this court’s judgment becomes final. In all other respects, the judgment appealed from is affirmed.

AMENDED AND AFFIRMED.

      . Although the mother stated her net income from art sales in 1982 was $4,239.98, she acknowledged that approximately $1,800.00 in professional expenses were duplicated on a list of her personal expenses and could be added to her net income, resulting in a total of $6,039.98 in net income during 1982.

      . The pending contract was valued at $8,100.00. The mother had already received a $1,200.00 advance and expected to earn 60% of the remaining balance.


text:
    VERSAILLES ARMS APARTMENTS v. Patricia WHEELER.
    No. CA-1532.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 6, 1984.
    Rehearing Denied July 24, 1984.
   ORDER

Defendant-appellant, Patricia Wheeler lived in the Versailles Arms Apartments, at 4952 Henri Drive pursuant to a written lease. On August 30, 1983, Ms. Wheeler was notified that her lease, which was to expire pursuant to its terms on September 30, 1983, was not to be extended and that she was to vacate the premises.

Following a Rule to Evict Occupant, a judgment was rendered on October 24, 1983 in favor of Versailles Arms Apartments ordering Ms. Wheeler to vacate her apartment at 4952 Henri Drive within twenty-four hours. From this judgment, she appeals.

In oral argument to this court both parties concede that appellant no longer occupies the leased premises. As in Lemann v. Kogos, 273 So.2d 63 (La.App. 4th Cir.1973), we find that the eviction judgment appealed from has been acquiesced in by appellant’s moving out.

Additionally, appellant’s claim of occupancy is based upon a written lease which by its terms expired on September 30,1983. Thus we cannot change the trial court’s judgment, as it would serve no purpose nor have any legal effect. See Elliott v. Di Mari Corporation, 411 So.2d 1088 (La.App. 4th Cir.1976).

Accordingly, the appeal is dismissed.