author: CUTRER, Judge.

text:
    STATE of Louisiana, DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT, Plaintiff-Appellant, v. Joseph R. MANUEL, et al., Defendants-Appellees.
    No. 83-691.
    Court of Appeal of Louisiana, Third Circuit.
    May 16, 1984.

      Bryan Miller, Baton Rouge, for plaintiff-appellant.
    Victor J. Versaggi, Patterson, for defendants-appellees.
    Before CUTRER, STOKER and KNOLL, JJ.
   CUTRER, Judge.

This is an expropriation action instituted by the State of Louisiana, through the Department of Transportation and Development (Department) under the provisions of Louisiana’s “quick-taking” statutes, LSA-R.S. 48:441 et seq. Named defendants in the expropriation petition were the owners of a tract of land lying within the city limits of Ville Platte, Louisiana, Joseph and Flossie Manuel, and the lessees of that land, Norris and Lola Mae Broussard (defendants), the owners of a frame building and improvements located on the land which served the Broussards as a Danny’s Fried Chicken Restaurant. The trial court rendered separate judgments in favor of the owners of the land and the lessees. This appeal only concerns the judgment pertaining to the Broussards, lessees.

On February 1, 1980, the Department expropriated for highway purposes a major portion of the land in question. The building and improvements owned by the Brous-sards were included in that expropriation. The Department deposited $13,667.00 as compensation for the taking of the Brous-sards’ improvements.

The trial judge rendered judgment in favor of the Broussards as follows:

1. Loss of franchise $ 3,000.00
2. Loss of building and equipment, signs, fence, concrete slabs, gravel, etc. 35,000.00
$38,000.00
Less the amount deposited 13,667.00
Total $24,333.00

Further, the Broussards were awarded attorney’s fees in the amount of 25% of $24,-333.00, and the Department was assessed costs and the payment of $700.00 in expert witness fees.

The Department devolutively appealed that judgment. The defendants have neither answered nor appealed. For the reasons to follow, we amend the trial court judgment by decreasing the award to the defendants.

FACTS

On February 1, 1980, the Department expropriated a tract of land in Ville Platte for the improvement of a state route— Highway 167. The land taken abutted Highway 167. The Department expropriated defendants’ building, equipment and other improvements.

The defendants had initially acquired a lease on the land in 1971 and had commenced their operation of a Danny’s in that same year. From 1971 to 1978, the land was leased under three different lease agreements of one, one and five years. However, when it was learned in 1978 of the Department’s impending expropriation, the lessors and the lessees (defendants) did not contract another written lease agreement. Therefore, from 1978 until the expropriation on February 1, 1980, the defendants operated their Danny’s on a month-to-month rental basis.

The building owned by the defendants was a one-story frame building on metal skids which had been prefabricated in Lake Charles in 1971 and moved to Ville Platte; its dimensions were 45 feet by 16 feet, a total of 720 square feet. Installed in the building during its construction was a large walk-in cooler. At some time prior to the expropriation, the defendants had replaced the entire flooring of the building with the exception of the area lying under the cooler, its weight preventing repairs under it. Broussard’s testimony indicated that the cooler’s immovable nature and the questionable condition of the flooring under it prevented the building’s removal from the land. A house mover, contracted by the Department and Broussard, refused to attempt the move when made aware of the circumstances. Expropriated with the building were two Danny’s exterior signs, the cooler and cooking equipment.

The trial court’s judgment included a lump sum award of $35,000.00. There is no indication of the values given to the listed items of loss of building, equipment, signs, fence, concrete slabs and gravel. The defendants’ witnesses were Howard Colgin (the founder of Danny’s) and Herbert J. Adams, Jr., (Broussard’s C.P.A.). Testifying on behalf of the Department were Dr. Roger Burford (an economist) and two real estate appraisers, Frank Greco and Stanley Tiger.

The testimony of Adams and, to a limited extent, that of Colgin, dealt with the value of the defendants’ operation as a going business, considering prospective profits of the business. It is undisputed that this business was operating on a month-to-month lease. A value placed on the business that includes future profits would be very speculative and thus is disallowed. Furthermore, the trial court seems to limit the award to the value of physical assets which he listed. We must determine whether the trial court was clearly wrong in his award for the items he listed. The Department challenges the trial court’s award of $3,000.00 to the defendants for loss of their franchise and the lump sum award of $35,000.00 for the physical assets expropriated.

ISSUES

The issues on appeal are:

(1) Whether the trial judge was clearly wrong in his finding that the defendants/appellees established by a reasonable preponderance of the evidence that they, in fact, lost their Danny’s franchise rights in Ville Platte; and
(2) Whether the trial court was clearly wrong in his finding that the defendants were entitled to $35,000.00 for the loss of their business assets.

LOSS OF FRANCHISE

Testimony from Broussard and Col-gin established the following: a Danny’s franchise had been purchased by Brous-sard from Colgin for $3,000.00. The franchise authorized the defendants to operate such an establishment anywhere within Ville Platte. The defendants failed to present any evidence that the Department’s actions had precluded them from exercising their franchise rights in another area of Ville Platte. The only evidence even adverting to this issue was Broussard’s statement that he was considering buying another tract of land in Ville Platte but, before he could act, a competitor had purchased the land. He did not state that a suitable location could not be found otherwise.

The evidence fails to establish that the defendants suffered a loss of franchise for the operation of an establishment in Ville Platte. The award of $3,000.00 for the loss of a franchise must be disallowed.

VALUATION OF THE PHYSICAL ASSETS EXPROPRIATED

The defendants, as the owners of the building, equipment and related improvements, are entitled to be “compensated to the full extent of [their] loss.” LSA-Const.1974, Art. I, § 4; LSA-R.S. 48:453. Their rights to this compensation are no less because of their status as lessees. State, Dept. of Highways v. Illinois Central R. Co., 256 So.2d 819 (La.App. 2nd Cir.1972), writ den., 260 La. 1136, 258 So.2d 381 (1972). Nor does the Department in the instant case contest the defendants’ right of recovery. Rather, it is the amount awarded that is at issue.

Due to the different nature of the items to be considered, we shall address them separately:

A. The Building

The building expropriated by the Department contained 720 square feet and was nine years old at the time of its taking.

The defendants contend that they should be entitled to the new replacement cost of the building on the date of its taking without a deduction for depreciation. For their proposition, defendants cite the decision of the Louisiana Supreme Court in State through Dept. of Highways v. Constant, 369 So.2d 699 (La.1979). The Department counters with the argument that depreciation should be considered in determining the defendants’ just compensation.

We find the defendant’s attempted reliance upon Constant, supra, to be unpersuasive. That case involved the expropriation of property owned and used by marina operators as a loading and parking area. Although the parent tract of land constituting the major marina operations remained intact, the court found that the tract taken would substantially destroy the marina business unless the loading and parking areas were replaced. Relying upon Art. I, § 4 of the Louisiana Constitution of 1974, which replaced Art. I, § 2 of the Louisiana Constitution of 1921, which change broadened the owners’ compensation rights in expropriation cases, the court held that the owners were entitled to the replacement costs of the expropriated areas without a deduction for depreciation.

The court’s holding in Constant was strictly premised “[ujnder the circumstances and the nature of the property taken....” More important is the following statement by the majority in Constant:

“We do not, by these rulings, announce any general principle that replacement cost is always the most appropriate measure of awarding a landowner compensation for the taking of a physical asset used in his business, nor that the depreciation of the former asset should never be considered.
“[.LJikewise, in the usual situation the depreciated value of the asset taken will have some lessening effect on the award to the landowner, since he may be fully compensated by the actual pecuniary value of the asset taken. For instance, the full compensation constitutionally provided does 'not require that the owner receive a new building to replace a dilapidated one which is expropriated.

Also, see Monroe Redevelopment v. Succession of Kusin, 398 So.2d 1159 (La.App. 2nd Cir.1981), writ den., 405 So.2d 530 (La. 1981). We conclude that, under the circumstances presented, we shall allow depreciation in placing a value upon the building.

The expert appraisers called by the Department provided the only evidence of the replacement cost of the building taken. Greco’s estimate of the replacement cost of the building was $16,934.00. Tiger estimated the cost as of 1978 as being $17,-179.00 which was adjusted upward by 18.5% to $20,357.00 for a 1980 value. We accept the estimate of $20,357.00 as being the more appropriate replacement cost of the building.

We must now determine the depreciation factor. Both Tiger and Greco felt that the building should be depreciated by 50% even though the building had been well maintained. This depreciation rate seems to be too high as we examine their testimony concerning the life expectancy of the building. Greco stated that he felt the building had a remaining life expectancy of fifteen years beginning in 1980. The building was nine years old at that time. Tiger felt that the remaining life expectancy of the building was six years.

We find that Greco’s estimate of life expectancy is more accurate than that of Tiger. As we take the total life, nine years, before the taking plus fifteen years after the taking, we have a twenty-four year life span. Therefore, we reach a depreciation factor of 37.5% (9 24).

Decreasing the accepted replacement cost of $20,357.00 by 37.5% depreciation, or $7,634.00, leaves a remaining value of $12,-723.00. We hold that the defendants were properly entitled to $12,723.00 for the value of the building.

B. Other Improvements and Equipment

In dealing with these items (cooking equipment, .cooler, sink, concrete, gravel and fence) we have determined that it would be inappropriate to make a depreciation deduction, because the Department has failed to show that depreciation should be deducted. The Department witnesses failed to show any basis for depreciation, 1.e., the condition of the improvements and equipment, life expectancy, etc. To allow depreciation under these circumstances would be speculative. Therefore, no depreciation will be allowed on these items. See State, Through Dept. of Highways v. Champagne, 371 So.2d 626 (La.App. 1st Cir.1979), rev’d in part on other grounds, 379 So.2d 1069, on remand, 391 So.2d 1234.

The Department expropriated two signs used in the business. Greco gave a depreciated estimate of $1,200.00 for both signs; Tiger appraised their replacement cost at $2,489.00 (including the 18.5% upward adjustment factor). Colgin testified that the signs would have cost $3,029.00 on February 1, 1980. This witness was well acquainted with the costs of the signs since he was in the business on a large scale. We accept Colgin’s estimate of $3,029.00 as being the correct replacement value of the signs.

Included in the trial court judgment was the word “fence.” We can find no admissible evidence in the record pertaining to the value of a fence. Introduced into evidence over the Department’s objection was D-5, a document signed by Colgin, but prepared by another individual, which referred to a cyclone fence. The Department correctly objected to this evidence; it is clearly inadmissible hearsay. There be--ing no evidence of the value of a fence lost by defendants, any award by the trial judge for the loss of this item, if there were in fact such an award, was clearly wrong.

The trial court also made an award for the loss of concrete slabs and gravel. The only witness providing evidence of these values, which related to the defendants’ lost driveway and parking lot, was Greco. He estimated the value of these items as being $820.00. ' The Department does not challenge this award. This amount will be awarded.

The evidence indicates that the equipment expropriated, and for which the trial judge rendered an award, consisted of the large walk-in cooler, a triple stainless steel sink and three chicken fryers and pots.

The cooler was constructed of aluminum, stainless steel and had a galvanized steel floor. Greco and Tiger estimated its value at $1,000.00 and $1,896.00 respéctively. Colgin placed its replacement cost as of 1980 at $5,200.00. For the same reasons enunciated in our acceptance of Colgin’s figures pertaining to the signs, we accept this value for the cooler of $5,200.00. ■

Likewise, we accept Colgin’s appraisal of $4,500.00 for the three fryers, including the extensive installation and duct work involved, over the lesser figures of $1,600.00 and $800.00 provided by Tiger and Greco, respectively.

Only Tiger and Greco estimated the value of the triple stainless steel sink. The former’s replacement estimate was $652.00; the latter’s depreciated cost was $300.00. We shall award $652.00.

In conclusion, we find the following awards to be supported by the record:

Building $12,723.00
Signs 3,029.00
Concrete and gravel 820.00
Cooler 5,200.00
Sink 652.00
Fryers 4,500.00
$26,924.00
Amount tendered by the Department into the Registry 13,667.00
Amount due defendants $13,257.00

Pursuant to LSA-R.S. 48:453, the trial court awarded defendants attorney’s fees in the amount of 25% of $24,333.00 (the difference between the initial award and the amount tendered by the Department). We reduce the award for attorney’s fees to 25% of $13,257.00, or $3,314.00.

For the above reasons the judgment of the trial court is amended so as to reduce the award to defendants to $26,924.00, subject to credit to the Department for the amount deposited into the court’s registry. The award for attorney’s fees is reduced to $3,314.00. As amended, the judgment is affirmed. The State of Louisiana, Department of Transportation and Development, is cast with all costs at the trial level, fixed in the amount of $2,331.00. Costs of this appeal shall be paid by the defendants-ap-pellees, Norris and Lola Mae Broussard.

AMENDED AND AFFIRMED.

      . Danny’s Fried Chicken is a franchise name. It’s founder, Howard Colgin, testified at trial that approximately 68 franchises had been sold.

      . All of Tiger’s estimates include the 18.5⅜ cost index increase, which he calculated on the total of all the items. For the reader’s convenience, we have calculated each item individually.


source: Caselaw Access Project

author: SHORTESS, Judge. PER CURIAM.

license: Public Domain

text:
    Robert L. WASHINGTON v. BUFFALO MILLS LUMBER COMPANY, INC.
    No. 83 CA 0652.
    Court of Appeal of Louisiana, First Circuit.
    May 30, 1984.
    Rehearing Denied June 29, 1984.

      Joseph H. Simpson, Amite, for plaintiff-appellant.
    George M. Pierson, Baton Rouge, for defendant-appellee.
    Before SHORTESS, LANIER, CRAIN, JJ.
   SHORTESS, Judge.

Robert L. Washington’s (plaintiff) employment by Buffalo Mills Lumber Company, Inc. (defendant) was terminated on September 15, 1982. He had been employed stacking lumber in defendant’s lumber yard. Defendant deducted the sums of $22.00 and $15.00 from plaintiff’s payroll check for the pay period ending September 11, 1982. It claimed these amounts were paid for plaintiff’s non-work-related medical bills. Plaintiff received his final check at defendant’s offices on September 17. Unhappy with the deductions, he held the check and called Chester Pritchett, defendant’s general manager, on September 23. Pritchett told plaintiff that he would “look into” the matter with Conway Guiteau, Jr., defendant’s president, who was responsible for the deductions. The testimony and exhibits at trial revealed that in the two months plaintiff worked for defendant he sustained two injuries during working hours. The first, on August 4, occurred when a load of lumber fell on plaintiff’s foot. Plaintiff was seen by Dr. R.E. Golds-by who sent him to Hood Memorial Hospital where he was x-rayed. The hospital billed defendant $22.00, and Goldsby sent a bill for $15.00. These amounts were paid by defendant.

The second incident occurred when plaintiff complained of pain and muscle spasm in his back after stacking lumber on August 27. He was taken by a fellow worker, Ellis Harrell, to see Dr. Thomas C. Evans, who billed defendant for a $15.00 office visit which defendant paid.

Pritchett testified that he disputed whether the August 27 incident was work-related and therefore thought it appropriate to deduct the amount of Dr. Evans’ bill. However, Pritchett also testified that he mistakenly thought the $22.00 x-ray charge for the August 4 foot incident was incurred with the August 27 spasm incident. Therefore, he ordered the deduction of both the $15.00 and $22.00 amounts. Plaintiff informed Pritchett of these errors in a September 23 telephone conversation. Pritch-ett testified that immediately thereafter he issued plaintiff a check for $22.00 and put it at defendant’s guardhouse for plaintiff. At this time defendant also issued a $4.00 check to plaintiff for wages earned in the short time he worked on September 15, the day of his discharge. This check was also placed at the guardhouse. Both checks were dated September 24. Pritchett testified that he still disputed whether the $15.00 muscle spasm bill was work-related.

By September 28, plaintiff had not received the $22.00 check in the mail and instituted this suit for earned wages, penalty wages, and attorney fees under La.R.S. 23:631 and 632. Upon advice of its attorneys, defendant issued checks to plaintiff for $22.50 (sic) and $15.00. These checks were dated and mailed on October 1, 1982.

The trial court rendered judgment for plaintiff for $37.00 and awarded $300.00 attorney fees. In written reasons for judgment, it found defendant in violation of La.R.S. 23:631 for failing to pay the $22.00 and $15.00 within the required time and stated that “[t]he Court does not feel that defendant was guilty of any conduct that would warrant the assessment of penalties.”

Plaintiff has appealed alleging as error the failure of the trial court to award statutory penalty wages and asking for an increase in the attorney fees awards to at least $1,000.00.

Clearly, defendant did not comply with subsection A of La.R.S. 23:631, in that it did not “pay the amount then due under the terms of employment ... not later than three days following the date of discharge.” The issue to be resolved is whether or not there was a “dispute” as to the amount due plaintiff, as provided for in subsection B of La.R.S. 23:631. If it is determined that a bona fide dispute as to wages due existed at the time of the refusal or failure to pay, no penalties will be awarded. Becnel v. Answer, Inc., 428 So.2d 539 (La.App. 4th Cir.1983), application not considered,,- 433 So.2d 158 (La. 1983); Holmes v. Tradigrain, Inc., 411 So.2d 1132 (La.App. 4th Cir.1982), writ denied, 414 So.2d 1252 (La.1982). For the employee to recover, the employer must have been motivated by bad faith or must be found to have acted in an arbitrary or unreasonable manner. Becnel, 428 So.2d at 543; Pittman v. Eyrand, 290 So.2d 800 (La.App. 4th Cir.1974).

Defendant’s actions of withholding the $22.00 and $15.00 sums were clearly arbitrary and/or unreasonable. As noted earlier, Pritchett testified that the reason he withheld the $22.00 was his “mistaken” impression that the charge had arisen from the muscle spasm incident which he deemed non-work-related. Assuming for the sake of argument that the muscle spasm was not work-related, Pritchett’s inattentiveness and negligence in instructing his secretaries to make the deduction without first ascertaining which incident necessitated the x-rays is patently arbitrary and unreasonable. The employer’s negligence in failing to pay wages due his employee upon termination does not relieve him of the duty imposed by the statute. Becnel, 428 So.2d at 543; Holmes, 411 So.2d at 1134; Pace v. Parker Drilling Company & Subsidiaries, 382 So.2d 988 (La.App. 1st Cir.1980), writ denied, 383 So.2d 1016 (La. 1980).

Additionally, we find no support in the record for the deduction of the $15.00 bill from Dr. Evans. Plaintiff testified regarding that incident as follows:

Q What exactly happened to you with regard to that muscle spasm?
A Well, I was stacking lumber, we were stacking lumber. We stack a bundle and band it then we have to stack another bundle on top of it. As we were stacking the lumber stacking it and I told a couple of my friends that I had a pain in my back and my back was hurting. And I told them that I was going to the office and when I went to the office and I told Mr. Pritchett. And Mr. Conway was in the office too and he told me he said well Mr. Conway told him he said, well he said his back is hurting well let him go ahead on.
Q And you left work that day and went and saw Dr. Evans?
A Yes, sir.

This testimony was corroborated by that of Ellis Harrell, the co-worker who took plaintiff to Dr. Evans’ office that day. Compare the testimony of Chester Pritchett regarding the same incident:

Q You still dispute the muscle spasm as a job related injury?
A That is correct.
Q What is the basis of your dispute?
A His work record, his general attitude at work.
Q Could you elaborate?
A Well, his trip to Texas involving the death in a family I know that for a fact that they did have a death in the family. And that he had consulted our yard superintendent and was allowed a half day off from work to attend the funeral. And I doubt seriously he has never told us anything, never offered any explanation for his absences. He has been absent six times with two excused absences. And warned numerous times so I just feel like his general work record was very poor and had it not been that week it probably would have been the next week that he would have been terminated.

Pritchett also testified that no investigation of any kind was made of this incident:

Q ... Did you investigate the second incident?
A No, sir.
Q The muscle spasm?
A No, sir.
Q You made no investigation whatsoever?
A No, sir.
Q And on the $15.00 although you have some doubt in your mind as to how it occurred you paid him cheeks after that and you never made any type of investigation and you didn’t deduct it until you fired him, is that correct?
A In the $15.00 that is correct.

Based on the foregoing testimony, we conclude that defendant’s deductions were arbitrary and unreasonable and not made pursuant to bona fide disputes. Under the provisions of La.R.S. 23:632 defendant is liable for the penalty wages.

La.R.S. 23:632 provides that the penalty wages shall be the lesser of (1) ninety days wages at the employee’s daily rate of pay, or (2) full wages from the time of employee’s demand for payment to the time the employer shall pay or tender the amount of unpaid wages due the employee. Plaintiff testified that he normally worked a five-day week, from 7:30 a.m. to 5:00 p.m. and sometimes half a day on Saturdays. Plaintiff’s time card for the pay period ending September 11, 1982, is consistent with his testimony. The time card also showed three lunch breaks which averaged between 45 minutes to an hour. We find that a reasonable calculation of plaintiff’s penalty wages is on an 8-hour day, 5 days a week scale. We note from the exhibits that plaintiff’s rate of pay was $3.35 an hour and that the proper time period for the calculation under the statute is from plaintiff’s demand, September 23, to tender of the arbitrarily disputed amount. Tender of the last disputed amount occurred on October 1 when defendant mailed to plaintiff a check for the $15.00 deduction. Therefore, the penalty wages in this case for 6 days, 8 hours a day, at $3.35 an hour, amounts to $160.80. The worker’s usual holidays of Saturday, September 25, and Sunday, September 26, 1982, are excluded in computation of the penalty wages. See Soday v. Mall Snacks, Inc., 374 So.2d 138 (La.App. 1st Cir.1979); Seal v. Marco’s, Inc., 343 So.2d 749 (La.App. 3rd Cir.1977); Carr v. Pelican Remodelers, Inc., 250 So.2d 220 (La.App. 4th Cir.1971), writ refused, 259 La. 807, 253 So.2d 66 (1971). But see Carey v. Orleans Ins. Co., 337 So.2d 317 (La.App. 4th Cir.1976) (daily rate calculated on a five-day work week basis used to compute an award based on the entire 24-day period from August 25 to September 19, 1972).

Plaintiff urges that he is entitled to receive an increase in attorney fees from the $300.00 awarded by the trial court. We note that La.R.S. 23:632 awards reasonable attorney fees “in the event a well-founded suit for any unpaid wages whatsoever be filed by the laborer or employee after three days shall have elapsed from time of making the first demand following discharge or resignation.” (Emphasis added) It is undisputed that plaintiff’s first demand was communicated to defendant through a telephone call on Thursday, September 23, 1982. This suit was filed on Tuesday, September 28, 1982. La.R.S. 1:55(E) states that “all Saturdays and Sundays, shall be considered as legal holidays for the purposes of Article 5059 of the Louisiana Code of Civil Procedure.” That code article, furthermore, directs us to compute the time period prescribed by the statute by not including “the date of the act, event, or default after which the period begins to run.” Further, legal holidays are to be excluded from the computation when the period is less than seven days. Following these rules, only Friday, September 24 and Monday, September 27, 1982, elapsed before suit was filed on Tuesday, September 28. Construing the penal statute of La.R.S. 23:632 strictly as we must, we find that plaintiff sued too soon to entitle him to an attorney fees award. The award of attorney fees made in the trial court is reversed.

For the foregoing reasons, judgment is rendered herein in favor of plaintiff and against defendant for $160.80 in penalty wages, with interest at the legal rate from date of judicial demand until paid. All costs are taxed to defendant.

AFFIRMED AS AMENDED.

ON APPLICATION FOR REHEARING

PER CURIAM.

Appellant has called our attention to the fact that appellee did not appeal or answer his appeal, so the trial court’s award of $300.00 in attorney fees to appellant was a final judgment. This contention is correct and unfortunately we overlooked that fact. The $300.00 awarded at the trial level had become final and our decision reversing it was erroneous. Accordingly, that award is reinstated. In all other respects, we adhere to our original opinion.

Accordingly, our original judgment is amended to the following extent: judgment is rendered herein in favor of plaintiff and against defendant for $160.80 in penalty wages and $300.00 in attorney fees, with interest at the legal rate'from date of judicial demand until paid. All costs are taxed to defendant.

      . Pritchett later admitted that it was his decision to make the deductions, not Guiteau's. This testimony corroborated Guiteau's professed ignorance of the entire transaction.

      . In its trial brief, plaintiff acknowledged that the two checks dated October 1 for $22.50 and $15.00 had been received and negotiated by him. The trial court judgment should have reflected this fact.

      . September 23 is excluded as per La.C.C.P. art. 5059.

      . See Magee v. Engineered Mechanical Services, Inc., 415 So.2d 277 (La.App. 1st Cir. 1982), writ denied, 420 So.2d 455 (La. 1982).


author: SHORTESS, Judge.

text:
    Ms. Rubayah Abdul MALEK, etc. v. Seyed Nasrollah YEKANI-FARD, etc.
    No. 83 CA 0725.
    Court of Appeal of Louisiana, First Circuit.
    May 30, 1984.

      Richard C. Cadwallader, Baton Rouge, for plaintiff-appellant Ms. Rubayah Abdul Malek, as Next Friend on Behalf and in the Interest of a Conceived, Unborn and Unnamed Infant.
    Benn Hamilton, Baton Rouge, for minor child Sharifah Suhaila Yekani-Fard.
    Joe E. Thompson, Baton Rouge, for defendant-appellee Seyed Nasrollah Yekani-Fard.
    Before SHORTESS, LANIER and CRAIN, JJ.
   SHORTESS, Judge.

Rubayah Abdul Malek (plaintiff) filed suit on behalf of herself and her unborn child seeking to establish paternal filiation and to obtain support from Seyed Narol-lah Yekani-Fard (defendant) who was alleged to be the father of the child. The petition further alleged that defendant was a foreign student from Iran who was enrolled at Southern University and that plaintiff had reason to believe that defendant planned to permanently leave the State of Louisiana and to remove all of his assets from the jurisdiction of the court. Contending that irreparable injury would result to the child if defendant removed all of his assets from the jurisdiction of the court, plaintiff requested that injunctive relief be granted. Temporary restraining orders were issued enjoining (1) defendant from removing his property from the Parish of East Baton Rouge, (2) City National Bank from disbursing any funds to defendant, (3) Southern University from delivering any funds, transcripts or other property to defendant, and (4) defendant from harassing plaintiff.

Defendant filed the dilatory exception of prematurity and the peremptory exceptions of no right and no cause of action asserting that the unborn child lacked standing and that plaintiff was the legal wife of another man. The trial court sustained the exception of prematurity and dismissed the suit “for the reason that the child has not been born.” The judgment specified that the temporary restraining orders were to remain in effect pending action on the writ application. This court denied the writ stating that “[t]he ruling of the trial court is correct. The stay order issued by the trial court shall remain in effect until March 16, 1982, in order to allow the parties to apply to the Louisiana Supreme Court for writs, if they so desire.” The Supreme Court granted the writ and reversed. The court stated that “[sjince unborn children are regarded by the law as already born in property matters undertaken for their benefit, the trial court erred in sustaining the exception of prematurity.” Malek v. Yekani-Fard, 422 So.2d 1151, 1154 (La.1982). The court further stated that plaintiffs “marital status is irrelevant except for any weight it may have at trial in proving or disproving filiation.” Malek, 422 So.2d at 1154. The case was remanded for further proceedings. On remand, a hearing was conducted on the issue of whether or not a preliminary injunction should issue. The trial court found that it had “no power, right, jurisdiction or authority to issue a preliminary injunction, or conservatory writ or order to freeze funds of the defendant, Seyed Nas-rollah (sic) Yekani-Fard, in the hands of the City National Bank of Baton Rouge.” In oral reasons for judgment the trial judge stated that “I believe that this Court’s jurisdiction is limited to community funds, community property” and that “[ujnder the Laws of the State of Louisiana, these persons were not legally married nor were they putatively married. Therefore, the injunction is denied.” The temporary restraining order which restrained defendant from harrassing plaintiff was continued in full force and effect. Plaintiff appealed that portion of the judgment which vacated the temporary restraining order issued to City National Bank and which refused to grant a preliminary injunction due to an asserted lack of jurisdiction. The appeal order signed by the Family Court provided that “a stay order is hereby issued suspending the effect of the portion of the Judgment of April 13, 1983, which recalled, vacated and terminated the temporary restraining order issued to the City National Bank of Baton Rouge until such a time as the appeal herein has been decided by the Court of Appeal, First Circuit, State of Louisiana.”

The record reveals that the following events occurred on the following dates:

(1) On May 14, 1981, a marriage license was issued which authorized a marriage between plaintiff and Jack Dwayne Folds;

(2) On May 28, 1981, a contract of marriage was signed in the Islamic Center of New Orleans between plaintiff and defendant;

(3) On June 4, 1981, plaintiff and Folds were married in Baton Rouge by a City Court judge;

(4) On April 10, 1982, plaintiff gave birth to a child whose name appears on the birth certificate to be Sharifah Suhaila Yekani-Fard; and

(5) On March 29, 1983, a judgment was signed which stated that the child was not the child of Folds and which granted a divorce between plaintiff and Folds.

Defendant testified that he married plaintiff at the Islamic Center in New Orleans but that he only intended to be married to her for two weeks. He stated that he never applied for a marriage license nor did he take a blood test.

Plaintiff testified that she had a Masters Degree in Agronomy from Louisiana State University, that she called the Clerk of Court’s Office and learned of the necessary requisites for a valid marriage, that she obtained a marriage license to marry Folds, that two weeks later she married defendant, and that she later married Folds. She stated that she made all of the necessary arrangements for her marriage to Folds. She said that she was aware of the fact that she needed a marriage license and a blood test in order to be validly married under the laws of this State. She admitted that she did not obtain a marriage license to marry defendant. She stated that she and defendant had discussed the situation and decided not to get married under the laws of this State so that she could marry Folds and thereby obtain a “green card” which would enable her to work in the State.

Plaintiff says that the trial court erred in refusing to grant a preliminary injunction on the grounds that its jurisdiction to issue injunctive relief was limited to community property.

Louisiana Civil Code article 90 provides that:

As the law considers marriage in no other view than that of a civil contract, it sanctions all those marriages where the parties, at the time of making them, were:
1) Willing to contract;
2) Able to contract;
3) Did contract pursuant to the forms and solemnities prescribed by law.
(Emphasis added.)

Although the failure to follow every formal requirement for a valid marriage does not necessarily invalidate it, the record in the instant case reveals that no attempt was made to follow any of the forms or solemnities prescribed by law. The trial judge found that no marriage license was obtained, no blood test was made, and the celebrant did not have a license to perform marriages. He concluded that no legal marriage existed. The record supports his factual findings, and we agree with his conclusion because “[s]uch marriages only are recognized by law as are contracted between a man and a woman and solemnized according to the rules which the law prescribes.” (Emphasis added.) La. C.C. art. 88.

La.C.C. art. 117 provides that “[t]he marriage, which has been declared null, produces nevertheless its civil effects as it relates to the parties and their children, if it has been contracted in good faith.” Good faith in the context of the putative marriage doctrine is defined as an honest and reasonable belief that the marriage was valid and that no legal impediment to it existed. Hart v. Hart, 427 So.2d 1341 (La.App. 2nd Cir.1983), writ denied, 433 So.2d 152 (La.1983). Good faith is a factual question, and the finding of the trial judge is entitled to great weight. Hart, 427 So.2d at 1344. The testimony of plaintiff clearly indicates that she was not in good faith. She admitted that she was aware of the formal requisites to a valid marriage and yet she did not comply with any of them. The trial judge correctly found that no putative marriage existed, that no legal marriage existed, and thus that no community property was involved.

The question then becomes whether or not the Family Court for the Parish of East Baton Rouge has jurisdiction to issue in-junctive relief in this case notwithstanding the fact that community property was not involved.

La.R.S. 13:1401 provides in pertinent part that:

■ There is hereby established the family court for the parish of East Baton Rouge, which shall be a court of record with exclusive jurisdiction in the following proceedings:
(7) All actions for divorce, separation from bed and board, annulment of marriages, establishment or disavowal of the paternity of children, alimony and support, custody and visitation of children, as well as of all matters incidental to any of the foregoing proceedings, including but not restricted to the issuance of conservatory writs for the protection of community property....
(Emphasis added.)

We find that the jurisdiction conferred upon the Family Court by La.R.S. 13:1401 encompasses the authority to issue injunctive relief in actions for the establishment of the paternity of children. The Family Court clearly has jurisdiction over actions to establish the paternity of children. Furthermore, the court has jurisdiction over all matters incidental to said actions. Injunctive relief designed to preserve property necessary for support of the child once paternity is established is incidental to the paternity and support action. The statute states that jurisdiction is not restricted to conservatory writs for the protection of community property. We also note that when the Supreme Court found that the suit was not premature, it stated that “[i]n addition, if the suit was premature when filed, it must be dismissed and refiled. The dismissal would cancel plaintiff’s injunctive relief.” Malek, 422 So.2d at 1152 n. 3. A reasonable inference from this language is that the Supreme Court believed that the Family Court had jurisdiction. For all of the foregoing reasons, we find that the court had jurisdiction.

Because the trial judge was primarily concerned with whether or not the property was community property, questions and answers were restricted to this issue at the trial of the rule. Also, since a hearing was not conducted on the filiation claim, we will remand the case for this purpose.

A preliminary injunction may issue only upon a prima facie showing, either by ordinary proof or by verified petition or affidavits, that the plaintiff will prevail on the merits and that irreparable injury or loss will result without the preliminary injunction. General Motors Acceptance Corp. v. Daniels, 377 So.2d 346 (La.1979). Irreparable injury is considered to be the loss sustained by an injured party which cannot be adequately compensated in money damages or for which such damages cannot be measured by a pecuniary standard. Terrebonne Parish Police Jury v. Matherne, 405 So.2d 314 (La.1981), cert. denied, 456 U.S. 972, 102 S.Ct. 2234, 72 L.Ed.2d 845 (1982).

In the instant case, plaintiff is seeking a money judgment for the support of her child as well as a judgment establishing filiation. Plaintiff has neither alleged nor proven that she could not be adequately compensated in money damages. For this reason, we do not think that injunctive relief is appropriate in this case. The district court ruling denying the injunction is correct (although not for the reasons given by it) and is affirmed.

Although plaintiff has not requested a writ of attachment, it is mentioned in her brief. We think that a writ of attachment as set forth in La.C.C.P. art. 3541 may be appropriate in this case and that La.C.C.P. art. 3541(4) is particularly applicable. Under the broad equitable powers granted to appellate courts by La.C.C.P. art. 2164, we will afford plaintiff an opportunity to amend her petition to request a writ of attachment. The stay order granted by the trial judge shall remain in effect for ten days to give plaintiff time to seek a writ of attachment.

REVERSED IN PART, AFFIRMED IN PART AND REMANDED.

      . Defendant's name was incorrectly spelled in the caption of this suit.


author: SAVOIE, Judge. .

text:
    Griffin M. OBY, Through his Provisional Curator, Mrs. Betty Scott GEORGE v. Lloyd P. CHAMPAGNE.
    No. 83 CA 0757.
    Court of Appeal of Louisiana, First Circuit.
    May 30, 1984.

      Stephen Irving, Baton Rouge, for plaintiff-appellee.
    Ralph Brewer, Baton Rouge, for defendant-appellant.
    Before COVINGTON, COLE and SA-VOIE, JJ.
   SAVOIE, Judge. .

Defendant, Lloyd P. Champagne, appeals from a judgment in favor of plaintiff, Griffin M. Oby, on a promissory note.

On December 4, 1972, Champagne purchased a tract of land from Griffin M. Oby for $97,500.00. For a portion of the price, a promissory note in the amount of $34,-612.50 payable December 4, 1974, was executed on that date representing the balance owed to Griffin M. Oby.

Subsequently, Griffin M. Oby became feeble-minded and interdiction proceedings were instituted against him on January 3, 1974. Mrs. Betty Scott George was approved by the court as provisional curator subject to her providing bond. Letters of provisional curatorship were issued to Mrs. George after she complied with the requisites of law.

About January 2, 1975, Champagne tendered two checks totalling $26,477.85 as payment in full for the note. The checks were not accepted and were eventually returned.

On February 19, 1975, a suit was filed on behalf of Griffin M. Oby through his provisional curator, Mrs. George, against Lloyd P. Champagne for $13,865.24, together with interest and attorney fees, as the balance due on the promissory note. Champagne filed an answer asserting that the tract had been represented to him as containing 3.54 acres with the sale price being $27,500.00 per acre; and that as the tract actually contained only 3.14 acres, a difference of $11,000.00, there was a failure or partial failure of consideration. Champagne further asserted that $26,477.85 had been paid and, thus, the debt was fully paid and extinguished. A request for admissions was filed with the answer, but was never answered by plaintiff.

Plaintiff filed a supplemental and amending petition on November 2, 1977, alleging that the principal amount of the note, $34,-612.50, was still due. An answer was filed on October 9, 1979, denying the allegations of the amended petition.

Griffin M. Oby died on November 29, 1977. Succession proceedings were instituted November 22, 1978. One of his daughters, Yvonne Oby, was subsequently named administratrix.

Champagne tendered another check in the amount of $26,477.85 on September 11, 1978, unconditionally. This check was accepted.

On February 14,1983, a motion to substitute plaintiff was filed with the court. The motion requested that Miss Yvonne Oby, as succession administratrix, be substituted as plaintiff in the stead of Mrs. George. The court granted the request.

After trial on the merits, judgment was rendered in favor of Griffin M. Oby, through his provisional curator, Betty Scott George, and against Lloyd P. Champagne in the amount of $34,612.50 with interest at the rate of 7.5% from December 4, 1972, together with attorney’s fees at 10% on both principal and interest, subject to a credit in the amount of $26,477.85 paid September 11, 1978. From this judgment,, defendant, Champagne, appeals.

On appeal, defendant raises six (6) assignments of error:

“1. The trial court erred in failing to sustain Champagne’s exception of no right of action or want of interest in the plaintiff to institute and prosecute this civil action.

“2. The trial court erred in failing to hold that plaintiff had admitted the truth of the matters of fact set forth in Champagne’s request directed to plaintiff for failure of plaintiff to respond for more than seven (7) years after the request was made by Champagne to the plaintiff.

“3. The trial court erred in failing to find there had been a lack or failure of consideration in the giving of the promissory note representing a portion of the sale price for the tract of land purchased by Champagne from the plaintiff on account of its diminution in size.

“4. The trial court erred in failing to give credit to Champagne on the debt owed the plaintiff for the payment of $26,477.85 on January 2, 1975 rather than on September 11, 1978.

“5. The trial court erred in failing to give Champagne credit for an additional sum of $649.22 Champagne paid in plaintiff’s behalf for the balance owing on a sewer assessment encumbering the tract of land Champagne purchased from plaintiff.

“6. The trial court erred in failing to permit Champagne to file an amended and supplemental answer following trial after evidence was introduced at trial without objection concerning the payment of the $649.22 sewer assessment.”

I.

On the day of trial, defendant filed an exception of no right of action which was overruled by the trial court. Defendant argued that Mrs. George had no right as the original plaintiff to file this suit in her capacity as provisional curator of Griffin M. Oby, but, in any event, her authority expired when Oby died on November 29, 1977. Defendant also argued that Yvonne Oby had no right as substituted plaintiff to pursue the suit in her capacity as adminis-tratrix of the Griffin M. Oby succession. The basis for the exception is that neither Mrs. George nor Miss Oby had ever received court authorization to institute the suit.

The trial judge noted in his written reasons that no judgment of interdiction had been obtained and that Mrs. George had no court authorization when she originally filed this suit in 1975. Oby was declared an interdict in September, 1977. The amended and supplemental petition was filed by Mrs. George on November 4, 1977, more than thirty days after Oby was declared an interdict on September 23, 1977, at which time a curator should' have been appointed pursuant to C.C.P. 4550. Further, the succession record makes no mention of the court granting the administra-trix authority to institute suit on the promissory note. The trial judge ruled that both Mrs. George, as provisional curator, and Miss Oby, as administratrix, did have a right to institute the suit even though neither had received court authorization to do so.

The purpose of the peremptory exception of no right of action is to provide a threshold device for terminating a suit brought by a plaintiff who has no legal interest to do so. Allstate Credit Plan Houma, Inc. v. Weidenbacher, 234 So.2d 774 (La.App. 1st Cir.1970). Thus, the question is whether either Mrs. George or Miss Oby had a right or interest to institute and prosecute this suit.

The Louisiana Code of Civil Procedure, Art. 4549, provides that the provisional curator shall continue to serve until his appointment is terminated by the court or until a curator has been appointed. Neither has occurred in this case.

A similar situation arose in Leveige v. Greenhouse, 194 So.2d 475 (La.App.3rd Cir.1967), where the court stated that under the Code articles, the provisional curator has not only the right, but the duty, to institute suit to preserve the interdict’s property. The court concluded that although the provisional curator should have had court authorization to file suit, she did have the capacity to institute the suit and prosecute it to its conclusion. Accordingly, we find that Mrs. George had the right to institute suit on the note.

Likewise, Miss Oby was the proper legal representative of the succession with the attendant duty to protect the property and rights of the estate. Therefore, she, too, had a right to be involved as plaintiff in the suit.

Having concluded that both the provisional curator and the succession ad-ministratrix had a right or interest in the suit, the appropriate exception is one of want of authority. This objection must be raised through a dilatory exception prior to answer or judgment of default, or else it is waived. Bordelon v. Safeway Insurance Company, 380 So.2d 1379 (La.App. 3rd Cir. 1980). In this case, the objection was not raised until after the trial had commenced. Therefore, the exception has been waived.

II.

The next issue raised by appellant is whether the trial court erred in failing to hold that plaintiff, by failing to respond for more than seven years after the request was filed, had admitted the matters of fact set forth in Champagne’s request for admissions.

The request for admissions was filed concurrently with defendant’s original answer on April 3, 1975. No formal answers to the request for admissions were filed into the record. Plaintiff did, however, deliver to defendant some time before trial, an answer in which he denied defendant’s allegation that the sale was by price per acre.

The Supreme Court, in Voisin v. Luke, 249 La. 796, 191 So.2d 503 (1966), stated that the basic design of the Code of Civil Procedure is to insure justice to all parties as expeditiously as possible. The purpose of the request for admissions is to eliminate the necessity of proving uncon-troverted facts. This rule may not be applied to a controverted legal issue lying at the heart of a case.

A basic issue in this case is whether this was a sale by price per acre or a sale per aversionem. (R.C.C. articles 2491, et seq.). The trial court found it to be a sale per aversionem based upon the evidence introduced at trial. All testimony exclusive of Champagne, himself, but including that of Champagne’s real estate agent, was that a price had been offered for the tract as bounded, and not on a price per acre basis. In addition, Champagne had the tract surveyed several months before the sale which showed the tract contained 3.14 acres rather than 3.54 acres, and this survey was referred to in the act of sale. We agree with the trial court that this was clearly a sale per aversionem.

To hold that plaintiffs failure to timely answer the request for admissions equates to an admission that the sale was not per aversionem would result in a judgment contrary to the facts of the case. This is not the purpose of the rule regarding admissions and will not be applied in such a manner.

III.

Appellant contends that the trial court erred in failing to find that there was a lack or failure of consideration because the tract contained 3.14 acres rather than 3.54. We find, as did the trial court, that the sale was per aversionem and, thus, the actual acreage is irrelevant. This assignment is without merit.

IV.

Appellant questions the trial court giving credit for the payment of $26,477.85 on September 11, 1978, rather than January 2, 1975. The trial court found that the checks of December 21, 1974, and January 2, 1975, totalling $26,477.85, were tendered as payment in full but were not accepted by plaintiff. On September 11, 1978, another check in the amount of $26,477.85 was tendered to plaintiff unconditionally and was accepted. Plaintiff refused to accept the first cheeks for fear of compromising the claim for the full amount. Had Champagne tendered the first checks unconditionally, credit would have been given at that point. The trial court properly gave credit for the unconditional tender of September 11, 1978.

V. AND VI.

Finally, appellant contends that the trial court erred in failing to give credit for the payment of the sewer assessment and for failing to permit the filing of an amended and supplemental answer concerning the payment of the sewer assessment.

A party who wishes to introduce evidence riot within the issues made by the pleadings must move that the pleadings be amended before the issue-raising evidence can be admitted over objection. Guidry v. Rubin, 425 So.2d 366 (La.App. 3rd Cir. 1982). Timely objection coupled with the failure to move for an amendment of the pleadings is fatal to an issue not raised by the pleadings. Gar Real Estate & Insurance Agency v. Mitchell, 380 So.2d 108 (La.App. 1st Cir.1979).

Appellant asserts that no objection was made at the time the evidence was introduced but the record indicates that a timely objection was made and sustained by the trial court. Since the pleadings were not amended before the evidence was attempted to be admitted, the trial court properly refused to consider a credit for the sewer assessment.

We note that on February 14,1983, the trial court ordered that Miss Yvonne Oby, administratrix of the Succession of Griffin M. Oby, be substituted as party plaintiff. Therefore, judgment should have been rendered in favor of Miss Yvonne Oby, administratrix in the Succession of Griffin M. Oby. We so amend the judgment. In all other respects, the judgment of the trial court is affirmed. Defendant-appellee, Lloyd P. Champagne, is to pay all costs.

AMENDED AND, AS AMENDED, AFFIRMED.


author: MARVIN, Judge.

text:
    STATE of Louisiana, Appellee, v. Bradford M. WALKER, Appellant.
    Nos. 16,202-KA & 16,203-KA
    (consolidated).
    Court of Appeal of Louisiana, Second Circuit.
    June 6, 1984.
    Davenport, Files & Kelly by Lavalle B. Salomon, Monroe, for appellant.
    William J. Guste, Jr., Atty. Gen., Baton Rouge, Johnny Parkerson, Dist. Atty., Geary Aycock, Asst. Dist. Atty., Monroe, for appellee.
    Before PRICE, MARVIN, and JASPER E. JONES, JJ.
   MARVIN, Judge.

Defendant appeals his conviction by a jury of DWI second offense, contending that the evidence was insufficient to prove the charge beyond a reasonable doubt and to the. exclusion of other reasonable hypotheses of innocence. LRS 14:98, 15:438. We affirm.

For about a, mile the arresting officer pursued and then stopped the defendant who was driving 73 mph in a 55 mph zone about 8:30 p.m. on July 9, 1983. The officer noticed that defendant’s automobile was weaving slightly on the paved portion of the highway. He also noticed that defendant smelled of alcohol when he got out of his automobile and he was thereafter “swaying” and “unsteady” on his feet, as the officer described it. A field sobriety test was administered and defendant had difficulty balancing himself, touching his nose, and walking heel to toe. Defendant’s speech was described as “slurred” and he was abusive and uncooperative, especially when he was booked. The booking officer corroborated the arresting officer as to defendant’s odor, profanity, and belligerence. Another officer who had known defendant for about 10 years, testified that defendant did not have a speech impediment.

Defendant’s employer, who saw him about two hours after the initial stop and when the defendant was released on bail, testified that he had known defendant for about 10 years and that defendant did not appear intoxicated after his release on the night in question.

Defendant correctly states that the issue is whether the state has fulfilled its burden under Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 and LRS 15:438. There is direct evidence that defendant’s breath smelled of alcohol. There is direct evidence relating to his driving, his demeanor, and his actions after he was stopped and got out of his car. The ultimate question concerns whether these circumstances constitute legally sufficient proof that defendant was driving under the influence of alcohol to the exclusion of other reasonable hypotheses.

“When a case involves circumstantial evidence, and the jury reasonably rejects the hypothesis of innocence presented by the defendant’s own testimony, that hypothesis falls, and the defendant is guilty unless there is another hypothesis which raises a reasonable doubt. An evaluation of the reasonableness of other hypotheses of innocence provides a helpful methodology for determining the existence of a reasonable doubt. As we have recognized in such cases as State v. Wright, 445 So.2d 1198 (La.1983) (No. 82-KA-2012), State v. Graham, 422 So.2d 123 (La.1982), and State v. Sutton, 436 So.2d 471 (La.1983), the court does not determine whether another possible hypothesis has been suggested by defendant which could explain the events in an exculpatory fashion. Rather, the reviewing court evaluates the evidence in the light most favorable to the prosecution and determines whether the alternative hypothesis is sufficiently reasonable that a rational juror could not ‘have found proof of guilt beyond a reasonable doubt’. Jackson v. Virginia, above.” State v. Captville, 448 So.2d 676 (La. 1984).

Defendant argues that “conditions [that] ... are usually associated with alcohol [as described by the state’s witnesses] ... may be normal to this individual due to physical problems or other disabilities [and that] only a combination of some abnormal influence due to alcohol ingestion can yield a definite conclusion as to alcohol influence.” Defendant’s argument concludes that “common sense and experience dictate that many individuals can pass the field sobriety test while-intoxicated and vice versa [and that] ... as this appellant was presumed innocent ... physical defects [which were not ruled out by the state] ... could well explain [appellant’s] non-perfect performance of the [field sobriety] tests ...”

We agree that the state had the burden of proof, but find that the state fulfilled its burden of proving that defendant was driving under the influence by the testimony detailed and summarized above. LRS 14:98, 15:432, 438. The state was not required to prove its case to a “definite conclusion,” to the exclusion of any other possible hypothesis, but only beyond a reasonable doubt and to the exclusion of any other reasonable hypothesis.

Certainly it is possible to hypothesize that some physical problem, defect, or disability could affect defendant’s or anyone’s ability to drive or to perform the field sobriety test. This defendant exhibited no apparent physical problem. The officer, who had known defendant for about 10 years, testified that defendant did not have a speech impediment. Defendant’s employer did not suggest that defendant had any disability that would affect his driving or performance of the sobriety test. Under these circumstances, and viewing the record most favorably towards support of the jury verdict, we determine that the alternative hypothesis of the defendant is not sufficiently reasonable to cause us to conclude that a rational juror could not have found proof beyond a reasonable doubt. Captville, supra, and cases cited therein.

Defendant’s conviction is AFFIRMED.

      . The DWI charge was consolidated in the trial court with a speeding charge. Only the DWI conviction is appealed.


author: HALL, Judge.

text:
    Sam A. GILLIAM, Plaintiff-Appellee, v. Lewis H. WILLIAMS, Defendant-Appellant.
    No. 16303-CA.
    Court of Appeal of Louisiana, Second Circuit.
    June 6, 1984.

      Love, Rigby, Dehan, Love & McDaniel by Truly W. McDaniel, Shreveport, for defendant-appellant.
    Doyle & Jenkins by Kerwin W. Doyle, Shreveport, for plaintiff-appellee.
    Before HALL, FRED W. JONES, Jr., and SEXTON, JJ.
   HALL, Judge.

The plaintiff, Sam A. Gilliam, sued the defendant, Lewis H. Williams, for damages sustained when the defendant hit the plaintiff on his head and hand with a clipboard at the close of a hearing to determine the defendant’s entitlement to unemployment benefits. After trial, at which the defendant was not represented by counsel, the district court awarded the plaintiff $10,000 for his pain and suffering and $2,949.20 for his medical expenses.

The defendant devolutively appealed assigning the following errors:

(1) The trial judge erred in concluding the plaintiff had proven his case by a preponderance of the evidence.
(2) The trial judge erred in not considering the mitigating circumstances present in this case which mandated a denial of the relief requested by the plaintiff.
(3) The trial judge erred in admitting incompetent medical evidence of the plaintiff’s injuries and of the causal connection between the defendant’s alleged actions and the plaintiff’s injuries.
(4) The trial judge erred in holding the defendant to the same or to a higher standard of competency and care in defending his case than if he had been represented by counsel.

The plaintiff answered the appeal praying for an increase in the amount of damages awarded. Finding neither manifest error nor abuse of discretion, we affirm the district court judgment.

The incident giving rise to this suit occurred at the close of a hearing concerning the defendant’s eligibility for unemployment compensation benefits. The plaintiff works for the defendant’s former employer and lodged certain allegations or complaints against the defendant which resulted in his discharge.

On the morning of February 14, 1983, the plaintiff arrived early at the location for the hearing and was conversing with one Bobby Morris, an employee of the Unemployment Compensation Control System, while waiting for the other participants in the hearing to arrive. Shortly after the plaintiff arrived and began conversing with Mr. Morris, the defendant came into the lobby or waiting area. During the period of time which elapsed while everyone was waiting for the hearing to start, the defendant initiated one or more verbal exchanges with the plaintiff. While it appears that both the plaintiff and the defendant may have exchanged gestures in addition to words, no physical conflict resulted and the hearing was commenced. There appears to have been no noteworthy exchange between the plaintiff and the defendant during the hearing.

At the close of the hearing, the defendant, who was dissatisfied with the manner in which the hearing had been conducted and the decision reached regarding his eligibility for benefits, gathered his materials and started to leave the room. Upon passing behind the plaintiff, the defendant stopped and struck the plaintiff in the right side of the head with a clipboard. The plaintiff, although momentarily stunned, instinctively placed his hands over his head to shield himself from any further blows. At that point, the defendant struck the plaintiff again with the clipboard hitting him in the left hand and injuring the middle finger of that hand. As the plaintiff rose from his chair, other individuals present at the hearing restrained both him and the defendant. Moments later, the defendant left the room.

Immediately after the incident, the plaintiff complained to those present at the hearing of possible injury to his finger and head where the defendant had struck him. Immediately upon leaving the hearing, the plaintiff sought and obtained medical care. Sufficiency of the Evidence

In Assignments of Error Nos. 1, 2, and 3, the defendant argues, in essence, that the plaintiff failed to carry his burden of proof. This contention is without merit.

In order to recover, the plaintiff must prove by a preponderance of the evidence that his damages resulted from an unprovoked attack by the defendant. Mor-neau v. American Oil Company, 272 So.2d 313 (La.1973); Hemsley v. Sims, 325 So.2d 877 (La.App.2d Cir.1976); Lavergne v. Hoffpauir, 306 So.2d 462 (La.App. 3d Cir.1975); Middleton v. Shaw, 271 So.2d 358 (La.App. 2d Cir.1972); Broussard v. Citizen, 44 So.2d 347 (La.App. 1st Cir. 1950). The plaintiff discharged this burden.

Assignments Nos. 1 and 3 challenge the sufficiency of the plaintiffs proof with respect to causation. In Assignment No. 1 the defendant contends the plaintiff failed to establish that the defendant in fact struck the plaintiffs hand with a clipboard. In Assignment No. 3 the defendant argues that the trial court erred in admitting hearsay evidence of the plaintiffs injuries over the defendant’s objection. The latter error, the defendant argues, was extremely grave because the incompetent evidence, the surgeon’s written report of the operation the plaintiff underwent and the surgical procedure employed, supplies the only medical evidence in the record describing the plaintiff’s injuries. The defendant contends the presentation of medical evidence or testimony establishing the plaintiff’s injury and its cause is an absolute prerequisite to recovery in an action for damages resulting from a battery. We find all these contentions meritless.

The cause in fact of an injury is a factual question and the trial court’s determination in that regard will not be disturbed or overturned on appeal unless it is clearly wrong or manifestly erroneous. Guilbeau v. Roger, 443 So.2d 773 (La.App. 3d Cir.1983). No such erroneous determination exists in this case.

The defendant testified he struck the plaintiff only once, and then to the right side of the plaintiff’s head with his open hand rather than a clipboard. The defendant denied that he struck more than one blow or that he struck the plaintiff’s left hand.

Conversely, the plaintiff testified that he thought he was struck more than twice and specifically remembered being struck on the middle finger of his left hand. The plaintiff also testified that he was momentarily stunned or dazed by the defendant’s first blow but instinctively placed his arms and hands over his head to shield himself from the defendant’s attack at which time his finger was struck.

Bobby Morris, the only apparently neutral or unbiased witness at trial, testified that he saw the defendant strike two blows with a clipboard and indicated the second blow struck the plaintiff’s finger.

Only the plaintiff, his wife, the defendant, and Mr. Morris testified at trial. None of the other participants in the unemployment hearing nor any of the individuals who rendered medical attention or treatment to the plaintiff testified. However, it appears these individuals were equally available to both sides and no inference adverse to the plaintiff should arise from the absence of their testimony.

The trial court concluded, as do we, that the plaintiff’s testimony, corroborated by that of Mr. Morris, is sufficient to establish by a preponderance of the evidence that the defendant struck the plaintiff’s finger with a clipboard. Accordingly, Assignment No. 1 is without merit.

At the time the operating report challenged in Assignment No. 3 was offered, the defendant objected to its admission on the ground that it had not been established that he in fact struck the plaintiff on the finger. The defendant’s concern was that the document would be used by the trial court to infer that the defendant’s actions caused the injury described in the report. As defendant’s appellate counsel points out, the report does not purport to give any causative explanation for the injury the surgery attempted to correct. After being assured by the trial court that the mere admission of the document did not automatically establish the defendant’s responsibility for the injury described, the defendant had no further objections to its admission. The report establishes the fact of an operation on the plaintiff’s finger, a fact which has never been contested. The report does not purport to establish the cause of the injury. Consequently, we find no prejudice in the document’s admission into evidence.

Moreover, even if the unrepresented defendant’s objection is construed to extend to the allegedly hearsay nature of the document, and if it is assumed that the document was improperly admitted and considered, there is other evidence in the record sufficient to establish that the defendant’s battery caused the injury to the plaintiff’s finger.

Initially, we note that the presentation of medical testimony relative to causation is not a prerequisite to recovery. Some matters of causation do not require medical or other expert testimony for their proper resolution. The question is whether or not the record contains sufficient, competent evidence to make a proper and sound determination of causation. See Caldwell v. Nance, 291 So.2d 461 (La.App. 2d Cir.1974). Consequently, merely because the operating report is removed from consideration as evidence does not necessarily defeat the plaintiff’s claim.

The record establishes that the defendant struck the plaintiff’s finger as the plaintiff attempted to shield himself from the defendant’s blow. Immediately after the incident, the plaintiff complained to those individuals present at the hearing of possible injury to his finger and head where the defendant had struck him. Immediately upon leaving the hearing, the plaintiff sought and obtained medical care, although it appears the exact nature of the injury to his finger was not immediately diagnosed. The record further reflects that no injury, deformity, or immobility existed in the plaintiff’s finger prior to this incident. The record also reflects that the problem with the plaintiff’s finger manifested itself the same day as the defendant’s battery of the plaintiff occurred. Based upon this evidence, we conclude that the trial court’s determination that the defendant’s actions were the cause in fact of the plaintiff’s injury is not clearly wrong or manifestly erroneous. Consequently, Assignment of Error No. 3 is without merit.

In Assignment of Error No. 2, the defendant raises the issue of provocation and contends the plaintiff failed to show the attack was unprovoked. Additionally, the defendant argues provocation as a mitigating factor, which, along with his alleged inability to pay the judgment rendered against him, is a basis for the reduction of the damage award rendered in this case. This latter contention is treated in the section of this opinion dealing with quantum.

The defendant cites a pattern of provocation by the plaintiff, beginning with the lodging of certain false allegations against the defendant with their former employer which ultimately resulted in the defendant’s dismissal, and culminating in certain provocative words and gestures employed by the plaintiff immediately prior to and during the course of the hearing at which the attack occurred, which, he argues, justifies his actions in striking the plaintiff. Consequently, the defendant contends that he is not liable to the plaintiff for any damages sustained as a result of the blows he struck.

With respect to the defendant’s allegation of a pattern of provocational conduct by the plaintiff on prior occasions, such matters are outside the record as developed in this case and cannot be considered by us. The testimony concerning provocation contained in the record deals only with what transpired immediately pri- or to and during the course of the hearing conducted concerning the defendant’s eligibility for unemployment benefits. Prior to the hearing, the plaintiff spoke to the defendant only in response to provocative words and actions by the defendant and in no way threatened the defendant. Additionally, while the plaintiff might have made some comments in response to questioning during the course of the hearing which the defendant might have found provocative in nature, those remarks are insufficient to justify the defendant’s actions. Morneau v. American Oil Company, supra. Furthermore, although the parties appear to have exchanged gestures as well as words prior to the hearing, no violence occurred at that point and the plaintiff’s actions in that regard provide no provocation for the defendant’s later attack. Consequently, there was no provocation by the plaintiff from the evidence developed at trial sufficient to justify the defendant’s actions in striking the plaintiff. Accordingly, Assignment of Error No. 2 is without merit in this regard.

Competency in Self-Representation

In Assignment of Error No. 4, the defendant urges that the trial court erred in holding him to the same or to a higher standard of competency than would have been required of an attorney representing the defendant in this matter.

The record amply reflects appropriate concern on the part of the trial judge for the defendant’s disadvantaged position in representing himself. The trial judge was ever watchful and made repeated efforts to insure the defendant suffered no prejudice from representing himself and in fact received a fair trial. The trial judge neither allowed plaintiff’s counsel to take an unfair advantage of the defendant due to his inexperience and lack of expertise, nor allowed the defendant an unfair advantage to the prejudice of the plaintiff’s rights by a total disregard of procedure. Assignment No. 4 is without merit.

Quantum

The defendant, in Assignment of Error No. 2, seeks a reduction in general damages due to the alleged presence of mitigating factors in this case. The plaintiff answered the appeal praying for an increase in general damages. Finding no error or abuse of discretion in the award rendered, we reject both demands.

Mere words, even though designed to incite or irritate, cannot excuse a battery. However, provocation by words can be considered in mitigation of damages although rejected as justification for an unlawful act. Morneau v. American Oil Company, supra. As previously noted, the record reflects that the plaintiff spoke to the defendant only in response to provocative words and actions by the defendant and in no way threatened the defendant. The record contains no evidence of any provocative language uttered by the plaintiff sufficient to serve as mitigation of damages. While the record indicates that the parties may have exchanged gestures in their encounter prior to the start of the hearing, no physical violence erupted at that point. Their physical interaction prior to the defendant’s attack is not sufficiently provocative in nature and warrants no mitigation or reduction of damages. Consequently, the award rendered by the trial court cannot be reduced on this basis as the defendant contends.

Additionally, the record contains no evidence of the defendant’s alleged im-pecuniosity. Consequently, that factor cannot serve to mitigate or reduce the amount of damages awarded. Therefore, Assignment of Error No. 2 is without merit in this respect.

The injury sustained by this plaintiff, who is right-handed, has left the middle finger of his left hand somewhat deformed and with a degree of immobility. The exact extent of mobility loss is not established by the record. The plaintiff testified he has considerable trouble gripping objects and experiences pain when he bumps the finger or when the weather is cool. The trial judge noted an “obvious deformity” of the finger at the time of trial, mofe than eight months after the incident at the unemployment hearing and in spite of corrective surgery and physical therapy the plaintiff had undergone during the interim. The record does not establish what, if any, degree of permanent deformity and mobility loss the plaintiff will suffer. The record does establish that the plaintiff has routinely experienced pain in his finger since the time of the defendant’s battery, not only in connection with the physical therapy the plaintiff underwent but also in connection with his ordinary, daily activities. This injury also, according to the plaintiff’s testimony, deprived him of the ability to pursue his hobby of building ham radio sets because he can no longer handle the small components well enough with his injured hand to put the radio sets together. Additionally, the plaintiff indicated that he is now unable to perform the small repair or improvement jobs around his house that he once greatly enjoyed.

Despite the injury, however, the plaintiff is still able to competently perform the duties of his position at the Southern University campus in Shreveport. The plaintiff did testify, however, that the deformity of his hand makes him self-conscious and causes him embarrassment and humiliation in his interactions with others both on the job and socially.

We find the $10,000 general damage award reasonably compensates the plaintiff and is not an abuse of discretion. Accordingly, the general damage award will not be increased or reduced.

Decree

For the reasons assigned, the judgment of the district court is affirmed at defendant-appellant’s costs.

Affirmed.


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

text:
    John k. McAllister, Plaintiff-Appellee, v. Isaac RUFFIN, Jr. et al., Defendants-Appellants.
    No. 16307-CA.
    Court of Appeal of Louisiana, Second Circuit.
    June 6, 1984.
    Rehearing Denied July 6, 1984.

      Lunn, Irion, Switzer, Johnson & Salley by Frank M. Walker, Jr., Shreveport, for defendants-appellants.
    James E. Franklin, Jr., Shreveport, for plaintiff-appellee.
    Before HALL, FRED W. JONES, Jr. and SEXTON, JJ.
   FRED W. JONES, Jr., Judge.

Plaintiff sued the driver, owner and liability insurer of a refrigerated truck for damages resulting from injuries sustained when a pickup truck operated by plaintiff ran into the rear end of the refrigerated truck. Following a trial and judgment in favor of plaintiff, defendants appealed, contending that the trial court erred in (1) failing to find plaintiff was barred from recovery by his contributory negligence and, alternatively, (2) in awarding excessive damages.

For the reasons hereinafter explained, we reverse, finding that plaintiff was con-tributorily negligent.

At about 3:00 o’clock P.M. on July 7, 1980, McAllister, a 59 year old plumbing contractor, was driving his pickup truck west on East Texas Street in Bossier City. East Texas is a four-lane thoroughfare, with two lanes for eastbound traffic and two lanes for westbound traffic. McAllis-ter was driving in the outer or his far right hand lane. At a point approximately 180 feet west of railroad tracks which cross East Texas Street, McAllister ran into the rear of a refrigerated truck, driven by Isaac Ruffin, Jr., stopped in McAllister’s lane of traffic. The weather was clear, visibility was good, and the road surface was dry. This litigation ensued.

At the trial a witness to the accident, Billingley, testified that he was parked behind the refrigerated truck on a grocery store parking lot on the north side of East Texas Street. He observed the truck pull slowly out into the westbound traffic lane of East Texas Street, start west in the outer lane at a speed of from five to ten miles per hour, travel a few feet and slowly stop when the driver was hailed by someone standing across the street. At that time the refrigerated truck was struck in the rear by the McAllister vehicle.

Billingley’s wife, a passenger in his vehicle, testified by deposition, stating that she never heard McAllister sound his horn or apply his brakes.

McAllister testified that he was approaching the railroad tracks crossing East Texas Street at a speed of from 30 to 35 miles per hour when he noticed the refrigerated truck in the grocery store parking lot. He slowed to cross the tracks and then picked up speed again. At that time a white car traveling just ahead of him moved partially into his traffic lane and then swerved back into the inner lane [apparently to avoid the parked refrigerated truck]. McAllister stated that he then saw the stopped refrigerated truck ahead of him and ran into it. It was McAllister’s testimony that the truck had started backing up.

Ruffin admitted stopping his truck, but denied backing it up. Marshall, the friend who hailed Ruffin, also refuted the assertion that Ruffin was backing up.

In written reasons for judgment, the trial judge concluded that “the sudden stop of defendant’s vehicle was a dangerous maneuver and the sole cause of the accident.”

As a general rule, when a following vehicle collides with a preceding vehicle the following motorist is presumed to be negligent and must exculpate himself. Lindstrom v. Arnold, 421 So.2d 1178 (La.App. 2d Cir.1982).

There is, however, a sudden emergency doctrine which is available as a defense to the following driver who is proceeding carefully and prudently. Hebert v. Lefty’s Moving Service, 389 So.2d 855 (La. App. 4th Cir.1980).

We agree with the trial judge in this case that Ruffin was negligent in stopping his truck on the street. However, we find that the trial court erred in failing to consider whether McAllister, as the driver of the following vehicle, exculpated himself from contributory negligence. The fact is that McAllister practically admitted his contributory negligence. He saw the parked refrigerated truck in his lane of traffic and apparently made no effort whatever to avoid hitting it. There is no record evidence that McAllister either slowed his truck or tried to avail himself of the inner traffic lane. The driver of the white car traveling just ahead of McAllister must have observed the refrigerated truck and was able to avoid hitting it. If McAl-lister had been keeping a proper lookout there seems to be no reason why he could not have also averted a collision. Consequently, we conclude that plaintiff did not exculpate himself from negligence and that his contributory negligence bars his recovery.

For the reasons stated, we reverse the judgment of the trial court and render judgment in favor of defendants and against plaintiff, dismissing the latter’s suit, with costs of court both in the district court and on appeal assessed to plaintiff.


text:
    Beverly FERGESON et al., Plaintiffs-Appellants, v. Sherwood Bruce LOE, Defendant-Appellee.
    No. 16311-CA.
    Court of Appeal of Louisiana, Second Circuit.
    June 6, 1984.

      Brown, Williams & Tucker by Jack A. Williams, Shreveport, for plaintiffs-appellants.
    Smitherman, Lunn, Chastain & Hill by Richard S. Schmidt, Shreveport, for defendant-appellee.
    Before MARVIN, FRED W. JONES, Jr. and SEXTON, JJ.
   FRED W. JONES, Jr., Judge.

In this suit against the managing agent of a family corporation and partnership for damages for mismanagement, plaintiffs were simply awarded their portion of the remaining cash assets of the partnership. Plaintiffs appealed, contending the trial court erred in concluding the defendant was a reasonable and prudent administrator of the family business, in not awarding them damages, and in assessing them with one-half of the court costs.

For the reasons hereinafter set forth, we affirm.

For many years the Loe family operated a marine supply business in Shreveport under the corporate name of Loe Marine Supply Company, Incorporated. The founders of this corporation and owners of the stock in equal proportions were three Loe brothers and a Loe sister. These siblings were also the members of a family partnership, Loe Building Company, which owned property located on Stoner Street in Shreveport.

Edwin Loe, one of the founding brothers, died in 1968. His corporate stock in the marine supply business and interest in the partnership were inherited by his survivors [plaintiffs herein]. At that time one of the brothers, Sherwood B. Loe, who had been managing the partnership property, assumed daily operation of the corporate business also.

In the late 1970’s the corporate business began to decline. Therefore, the family members decided to expand into the retail boat distribution business. In order to finance the large amount of inventory needed, the directors of the corporation [these family members] borrowed money from a local bank. In order to secure these loans, the same individuals [as members of the family partnership] executed a collateral mortgage covering the Stoner Street property.

In January 1979 the building on the Stoner Street property was leased to Griffin Outboard Marine for $3,000 per month. As part of his managing duties Sherwood Loe collected the rentals, paid the taxes and insurance on the property, and disbursed the net profits to the partners.

The corporate venture into the boat distribution business proved unsuccessful and in late 1979 shareholders decided to liquidate the corporation. Sherwood Loe also managed this process.

In May 1980, because of lack of income from other sources, Sherwood Loe began applying the rental income from the partnership building on Stoner Street to payment of the loans secured by the collateral note and mortgage. In late 1980 the survivors of Edwin Loe objected to the use of their share of the rental income to pay the corporate debts. At that time Sherwood Loe refused to discontinue the practice, but later changed his mind and again remitted to the objectors their share of the rental income.

The bank which had made the corporate loans eventually found it necessary to foreclose on the partnership property covered by the collateral mortgage. However, because a written pledge agreement had not been obtained, the bank elected to purchase the interest of the survivors of Edwin Loe in the property.

In February 1982 those survivors filed this suit against Sherwood Loe to recover rental income, cash and directors’ fees allegedly withheld by the defendant, and attorney fees for defending the foreclosure suit.

In oral reasons for judgment the trial judge found that plaintiffs were aware that the rental income was being used to pay the loans secured by the collateral note and mortgage; that defendant was reasonable and prudent in spending partnership assets to repair the building in order to keep the tenant; and there was no evidence that defendant was anything but a prudent administrator in his management of the family affairs.

Plaintiffs argue on appeal that defendant misrepresented facts concerning the finances of the corporation which culminated in the loss of the partnership property in the foreclosure suit, thereby damaging them.

The trial court’s findings of fact have ample support in the record. The collateral note and mortgage were signed by all parties to the lawsuit and the note payable to the bank was listed in the corporation’s financial statement filed in the record. Therefore, plaintiffs’ argument that defendant misrepresented the financial condition of the corporation is without merit.

Considering the fact that all the parties desired to keep the partnership building, it was reasonable for defendant to pay the collateral note with rental income in order to prevent foreclosure on the building. Defendant’s use of rental income to make necessary repairs was also a reasonable effort to keep a tenant. Whatever loss plaintiffs may have suffered as a result of the foreclosure was not caused by the defendant. Under the circumstances defendant did everything possible to prevent foreclosure.

Since the defendant was not the cause of the foreclosure suit by the bank, the trial judge correctly found him not liable for attorney fees incurred therein.

The trial court did not abuse its discretion in assessing one-half of the court costs to each party.

For these reasons, the district court judgment is affirmed. Costs of appeal are assessed to plaintiffs.


author: SEXTON, Judge.

text:
    STATE of Louisiana v. Nicky D. TAYLOR. (In the Matter of David M. ALMOND).
    No. 16577-KW.
    Court of Appeal of Louisiana, Second Circuit.
    June 14, 1984.
    Cook, Yancey, King & Galloway by Sidney E. Cook, Edwin L. Blewer, Jr., Shreveport, for applicant.
    Before PRICE, FRED W. JONES and SEXTON, JJ.
   SEXTON, Judge.

Relator, Chief Deputy David M. Almond, was adjudged guilty of direct criminal contempt by Judge Gayle K. Hamilton on June 1, 1984. He was sentenced to serve forty-eight (48) hours in jail beginning 6:00 p.m. June 1, 1984. He immediately applied to this Court for supervisory relief and a stay of execution of sentence, and this Court stayed all proceedings in the District Court. We now grant the writ and make the relief peremptory.

During a recessed hearing on a motion to suppress in a first degree murder trial before Judge Hamilton in Shreveport, Louisiana, certain information was made available to the assistant district attorney handling the prosecution, A.M. Stroud, III, First Assistant District Attorney for Caddo Parish. According to the information he received, there was an indication that a deputy sheriff may have falsified his testimony at the hearing, that the fabrication may have been at the instruction of a superior officer, and that the rule of sequestration had been violated by the first deputy sheriff and perhaps by the second deputy. Upon receipt of this information, Mr. Stroud and District Attorney Paul J. Car-mouche summoned Chief Deputy Almond to their office on May 7, 1984. After a discussion of the matter with him, they requested Chief Deputy Almond, who himself was under the rule in this case, to initiate an internal investigation to ascertain the truthfulness of the allegations which had been made.

Thereafter, at the request of Chief Deputy Almond, an investigation by Sgt. Sherry Carter of the Caddo Parish Sheriffs Department, Internal Affairs Division, ensued. After completion of the investigation, the results were turned over to the assistant district attorney who disclosed to the court and counsel for Nicky D. Taylor, the defendant in the criminal proceeding, that erroneous testimony had been given concerning the circumstances surrounding the search of a vehicle found at Nicky D. Taylor’s residence, and that the rule of sequestration had been violated. As a result, Judge Hamilton ordered a hearing on May 14 to determine if violations of the rule of sequestration amounting to direct contempt of court had occurred.

At the conclusion of the evidentiary hearing of May 14, 1984, Judge Hamilton dismissed contempt charges against everyone except Chief Almond, and took that matter under advisement. On June 1, 1984, Judge Hamilton adjudged Chief Almond guilty of direct contempt and imposed the penalty previously indicated.

LSA-C.Cr.P. Art. 21 defines direct criminal contempt:

Art. 21. Direct contempt
A direct contempt of court is one committed in the immediate view and presence of the court and of which it has personal knowledge; or, a contumacious failure to comply with a subpoena, summons or order to appear in court, proof of service of which appears of record; or, a contumacious failure to comply with an order sequestering a witness.
A direct contempt includes, but is not limited to, any of the following acts:
(3) Contumacious violation of an order excluding, separating, or sequestering a witness;
(Emphasis ours.)

The term “contumacious” is not defined in the Louisiana jurisprudence other than by example. The Supreme Court has held that an attorney’s belligerent and persistent argument with the court was contumacious behavior. Kidd v. Caldwell, 371 So.2d 247 (La.1979). On the other hand, the Supreme Court has found an attorney’s statement in open court that “nobody wants to get to the truth” was improper and unwise, but was not contumacious. In re Masinter, 355 So.2d 1288 (La.1978).

In Black’s Law Dictionary, 298 (rev. 5th ed. 1979), “contumacious” conduct is defined as “wilfully stubborn and disobedient conduct.” Burton’s Legal Thesaurus, (1980), suggests that “contumacious” means stubbornly disobedient, stubbornly rebellious, openly defiant, or willfully disrespectful.

It is evident that for contempt to be contumacious, and thus be direct contempt, the offending conduct must be apparently rebellious, beligerent or in open defiance of the authority of the Court. The alleged offending act of Chief Deputy Almond occurred as a result of a specific request from the First Assistant District Attorney of Caddo Parish because of his concern that witnesses for the State (members of applicant’s department) had perjured themselves in a motion to suppress being held in a murder case. As an officer of the Court, Assistant District Attorney Stroud, considering the information at his disposal, had an obligation to determine if perjury had been committed by his witnesses in an ongoing trial. At Stroud’s request, Chief Almond ordered a member of his internal affairs division to conduct this investigation. Apparently, the investigator individually interviewed the witnesses from the Department who had testified at the trial. The investigation was expeditious and the true facts were brought to light.

This entire procedure was designed to, and did in fact, aid in the presentation of the truth. Such is the sole purpose of LSA-C.Cr.P. Art. 764, the authority for sequestration of witnesses in criminal cases. To that end, the article is designed to insure that a witness will testify concerning his own knowledge without being influenced by the testimony of prior witnesses, and to strengthen the role of cross-examination in developing the true facts. State v. Kimble, 407 So.2d 693 (La.1981).

Thus the conduct here complained of does not amount to direct contempt. Chief Deputy Almond, who was himself a witness, ordered an investigation by another deputy sheriff into the conduct of members of his own Department at the direction of the District Attorney and First Assistant District Attorney. This investigation was directed at the testimony of members of the Chief Deputy’s Department who had allegedly perjured themselves in an ongoing but recessed trial. In pursuing the matter, Chief Almond discussed the case with Mr. Stroud and Mr. Carmouche of the District Attorney’s Office. He also discussed it subsequently with Ed Blewer, counsel for the Sheriff’s office. Chief Almond’s discussions with the attorneys from the District Attorney’s Office is not a violation of the rule, as they were attorneys in the case. Likewise, his discussions with his own attorney cannot be said to be a violation. The record indicates that in delegating the investigation to Deputy Carter, who was not a witness in the case, Chief Almond spoke of the matter only in general terms. The only arguable violation of the Court’s order was Chief Almond’s instructions to the two deputies involved in the investigation to cooperate with Deputy Carter.

These actions are not openly defiant, belligerent or rebellious and thus do not rise to the level of contumacious behavior. Since these actions do not amount to contumacious conduct, direct contempt has not occurred. Parenthetically, we express serious doubt as to whether these circumstances even approach constructive contempt as per LSA-C.Cr.P. Art. 23. See Nelson v. Nelson, 421 So.2d 366 (La.App. 1st Cir.1982).

In fact, it appears that the trial judge did not find Chief Almond guilty of direct contempt, for in his oral reasons he stated:

The Court cannot honestly state that it has found you [Chief Deputy Almond] to be in contempt in the sense that you were the one going around, talking about the case, except in the investigation, internal investigation, of which I knew nothing. However, I had stated earlier that there can be no talking about this case or any other case, if there is to be any integrity of our judicial system. For this reason, the Court is going to find you in contempt, admitting that it is largely symbolic of those who are under you. You are the Captain of the Ship, as I said, and I think you and everyone in the Sheriff’s office must know that even if I stand alone, I feel the integrity of this Court must be preserved at whatever cost.

Thus, it does not appear that the trial court actually found that Chief Almond had himself violated the rule of sequestration. Nevertheless, we here hold specifically that the record does not show that the applicant committed a contumacious violation of the sequestration order and therefore he cannot be found to be in direct contempt of court.

For the reasons aforesaid, the writ is granted and made peremptory. The ruling of the trial court finding the applicant guilty of direct contempt is reversed and set aside, and the applicant is ordered discharged herein.

WRIT GRANTED AND MADE PEREMPTORY.


text:
    Melvin ARRINGTON, Jr. v. STATE of Mississippi.
    No. 54070.
    Supreme Court of Mississippi.
    Feb. 8, 1984.
    Rehearing Denied July 11, 1984.
    John H. Anderson, Hattiesburg, for appellant.
    Bill Allain, Atty. Gen., by Marvin L. White, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Jones County; James D. Hester, Judge.

Before PATTERSON, C.J., and PRATHER and ROBERTSON, JJ.

AFFIRMED.

WALKER and BROOM, P.JJ., ROY NOBLE LEE, BOWLING, HAWKINS and DAN M. LEE, JJ., concur.