author: STOKER, Judge.

text:
    FAUSTINA PIPE LINE COMPANY, Plaintiff-Appellant, v. Harry Warren BERNARD, et al., Defendants-Appellees.
    No. 83-920.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 10, 1984.
    Rehearing Denied Nov. 26, 1984.
    Writs Denied Jan. 25,1985.

      Elizabeth Jane Hastings and Michael Mangham, Lafayette, Earl H. Willis, St. Martinville, for plaintiff-appellant.
    S. Gerald Simon, New Iberia, for defendants-appellees.
    Before FORET, STOKER and KNOLL, JJ.
   STOKER, Judge.

Faustina Pipe Line Company (Faustina), plaintiff in this expropriation suit, appeals complaining of the amounts awarded to Dr. and Mrs. Harry Bernard for just compensation, expert fees, and attorney’s fees. For reasons set out below, we amend the judgment of the trial court.

FACTS

In this proceeding, Faustina seeks to establish a permanent right-of-way for a pipeline across property located in St. Martin Parish containing approximately 19 acres. The permanent right-of-way is to be 30 feet in width constituting a taking of .36 acres of the subject property. Faustina also requests taking of a temporary work space adjacent to the permanent right-of-way 60 feet in width or .69 acres of the subject property. The property was leased to Ulysse Gonsoulin & Sons, Inc., and was planted in sugar cane at the time of the taking.

After failing to reach an agreement with Dr. Bernard regarding the terms of the taking, Faustina filed this suit for expropriation naming as defendants Dr. Bernard, his wife, Helen Lindstrom Bernard, and the lessee, Ulysse Gonsoulin & Sons. At trial the parties stipulated as to the location, necessity, and other details regarding the proposed pipeline and stipulated that the landowners’ share of the crop damage would be $546.65. An agreement was also reached with the lessee as to its share of the crop damage.

Although no dilatory exception of prematurity was filed, the issue of whether Faustina had negotiated with Mrs. Bernard was raised and considered by the trial court. After the trial court held that the property was community and there had been no negotiations with Mrs. Bernard, Faustina dismissed her as a defendant, and filed a separate suit against her apparently after conducting unsuccessful negotiations. The second suit against Mrs. Bernard was consolidated with the initial proceeding for trial. The trial court found' the value of the property subject to the permanent right-of-way to be $4,320 and the value of the property subject to temporary use to be $993.60. Dr. and Mrs. Bernard were each awarded half of the total amount of damages including the stipulated crop damage of $546.65. The trial court also awarded the Bernards $2,400 for payment of their expert’s fee and $3,900 for attorney’s fees.

Faustina alleges that the trial court erred in the following respects:

1. The trial court incorrectly found the subject property to be community,
2. The trial court awarded an excessive amount for just compensation,
3. The trial court awarded an excessive amount for the expert’s fee, and
4.The trial court awarded an excessive amount for an attorney’s fee.

STATUS OF THE PROPERTY

On appeal Faustina claims that it should be reimbursed for the cost of filing a separate suit against Mrs. Bernard as a result of the trial court’s finding that the property was community and she should have been a party to the negotiations. A reimbursement of costs is the only relief sought with regard to this issue. As previously noted, no dilatory exception of prematurity was filed on behalf of Mrs. Bernard; however, the issue of whether Faustina negotiated in good faith with her was heard by the trial court without objection by Fausti-na. We will consider the matter on appeal as if an exception had been properly filed.

Faustina takes the position on appeal that the subject property was the separate property of Dr. Bernard; thus, it was not required to conduct negotiations with Mrs. Bernard. In response, the Bernards claim that Faustina judicially admitted that the property was community. Alternatively, the Bernards assert that the property is in fact community property and that, in any event, Mrs. Bernard has some interest in the property.

In its initial petition, Faustina made the following statement:

“Defendants herein,
Harry Warren Bernard and his wife, Helen Lindstrom Bernard, both residents and domiciliaries of Iberia Parish, Louisiana,
are the present record owners of the following described immovable property situated in St. Martin Parish, Louisiana:”

Defendant asserts that this pleading amounts to a judicial confession under LSA-C.C. art. 2291 of the fact that the property is community, and Faustina may not now claim that the property is Dr. Bernard’s separate property. Faustina argues that the pleading is not a judicial confession that the property is community, but merely recognizes that Mrs. Bernard may have some interest in the property. For example, the fruits and income derived from the property are a part of the community.

We are of the opinion that Fausti-na’s pleadings in its initial petition name Mrs. Bernard as a landowner. This position is supported by statements in the petition other than that quoted above which refer to Dr. and Mrs. Bernard as landowners. Once such a judicial confession has been made, the party making the admission may not later take a contrary position. Succession of Vice, 385 So.2d 554 (La.App. 3rd Cir.1980), writ denied, 392 So.2d 1066 (La.1980). We express no opinion on the actual character of the property, and question whether title in property can be established by the judicial confession in a petition.

Considering the admissions made by Faustina in its pleadings and the manner in which this matter was brought before the trial court for consideration, we do not find it inequitable that Faustina should be cast for costs in the trial court. See LSA-C. C.P. arts. 1920 and 2164. Its request for relief as to this issue is denied.

VALUE OF THE PROPERTY

The subject property is roughly rectangular in shape and contains approximately 19 acres. It is fronted on its south end by the Lady of the Lake Road for a distance of about 536 feet. Its eastern border fronts on a parish gravel road for a distance of approximately 1,600 feet. The proposed right-of-way will cross the property in an east-west fashion approximately 1,000 feet from the Lady of the Lake frontage. The proposed pipeline will be immediately adjacent to a currently existing Dow Chemical Company easement. We include in this opinion the following graphic depiction of the property for illustrative purposes only. It is not drawn to scale.

The primary dispute in determining the proper amount to be awarded as just compensation in this case concerns the highest and best use of the property. The trial court accepted the opinion of defendant’s expert, Mr. Sam Kennedy, and found that the highest and best use was for residential development. Plaintiff’s experts, Mr. Gene Cope and Mr. J. Harold Lambert, agreed that approximately three acres fronting on the asphalt Lady of the Lake Road has as its highest and best use residential development, but both experts found that the remaining 16 acres is agricultural. We find that the trial court was clearly wrong in determining that the highest and best use of the entire property was for residential development.

Highest and best use has been defined as “the most favorable employment to which the property is adaptable and may reasonably be put in the not too distant future.” State, Department of Highways v. Rapier, 164 So.2d 280 (La.1964); Louisiana Resources Company v. Langlinais, 383 So.2d 1356 (La.App. 3rd Cir.1980). With regard to potential use of property, the court in Rapier made the following statement:

“Potential residential subdivision or industrial use, to serve as the basis of establishing market value in an expropriation proceeding must be shown to be reasonably prospective, as distinguished from remotely prospective, to remove such potential use or classification from the realm of guesswork, speculation and conjecture. If such potential future use is shown within the reasonably near future, the owner is entitled to compensation on the basis of such use notwithstanding the property is not being utilized for such use at the time of taking.”

This position was also adopted by the court in Langlinais. In Langlinais the court also considered demand to be an important factor in determining potential use.

In the present case, the property use has apparently always been agricultural. Mr. Kennedy stated that Dr. Bernard had never expressed any intention to him to develop or sell the property as residential lots, and Dr. Bernard did not testify as to any such intention. Mr. Kennedy testified further that he “found the property to be of rural home site type property with interim use as agricultural.” His opinion was influenced by the amount of frontage the property has along the parish gravel road. As to highest and best use, Mr. Kennedy made the following observations:

“Now, when we define highest and best use as residential, I don’t think that we have to have an immediate market for real estate. Most real estate is a reasonably long term investment... So, I believe that a prudent owner would hold this property to its highest and best use which is by definition that greatest net return from the land, and hold it for residential until the cycle of real estate begins again.”

In accordance with his determination that the highest and best use of the property is residential Mr. Kennedy considered comparables of 1¼ to IV2 acre lots. By using these comparables, Mr. Kennedy determined that the value of the property was $12,000 per acre, and the permanent right-of-way would cause a 100% loss of the property taken. He determined the value of the property subject to the permanent right-of-way to be $4,320 (.36 aeres X $12,000). The property subject to temporary use for an estimated period of one year at a rental rate of 12% was found by Mr. Kennedy to have a value of $993.60 (.69 acres X $12,000 X .12).

We are of the opinion that Mr. Kennedy’s determination of highest and best use was based on the ultimate potential use of the property rather than its use in the “not too distant future.” See Dixie Electric Membership Corporation v. Riddle, 277 So.2d 476 (La.App. 1st Cir.1973). Mr. Kennedy’s testimony along with that of Mr. Cope and Mr. Lambert establishes that there is an abundant supply of property in the general area of the subject property which is available for homesites. Some of the available property is in developed subdivisions and some of it is more in the nature of rural homesites. Much of this property has been for sale for more than a year.

Both Mr. Cope and Mr. Lambert found there would very little demand for more homesite property with its frontage on a gravel road, and each made his appraisal in accordance with this opinion. Mr. Lambert determined that the property fronting on Lady of the Lake road has a value of $10,000 per acre and the remaining 16 acres has a value of $4,000 per acre. He used a composite value of $6,500 per acre in determining the value of the property taken. Mr. Lambert considered that the owner would retain a 20% use of the property taken. The trial judge agreed that this would be the case if the highest and best use of that property is agricultural. Mr. Kennedy determined the value of the property subject to the permanent right-of-way to be $1,872 (.36 acres X $6,500 X .80), and the value of the property subject to temporary use to be $538.20 (.69 x $6,500 x .12).

Mr. Cope’s valuation is very similar to that of Mr. Lambert with the following exceptions. Mr. Cope determined that the remaining 16 acres has a value of $6,000 per acre, and he used that figure in his calculations. He also determined that the land has a 15% rental value. Accordingly, Mr. Cope found the value of the land subject to the permanent right-of-way to be $1,728 (.36 acres X $6,000 x .80), and the value of the land subject to temporary use to be $621 (.69 acres x $6,000 X .15).

In determining the value of the remaining 16 acres Mr. Lambert relied on compa-rables ranging from 4.0422 to 87.133 acres. Mr. Cope’s comparables ranged from 6.73 to 31.98 acres. The approach used by both of these experts appears to us to be sound. In fact, Mr. Kennedy testified that absent the factor of the gravel road frontage, he would have used the same method. We will give defendants the benefit of the highest figures used by Mr. Lambert and Mr. Cope to determine the compensation to which they are entitled.

We find that defendants should be awarded the amount of $1,872 (.36 X $6,500 x .80) for the property subject to the permanent right-of-way. The award for the property subject to temporary use should be $672.75 (.69 x $6,500 X .15).

EXPERT’S FEE

The trial court awarded the Bernards $2,400 for the expert fee charged by Mr. Kennedy. The basis of the charge explained by Mr. Kennedy is that he charged $500 per day for three days of appraisal work and one day for pretrial conference and viewing the property and $400 for the one day of trial. Plaintiff argues that the expert’s fee is excessive and constitutes an abuse of the trial court’s discretion. We agree that the fee should be reduced.

Plaintiff points out that even if the fee is not an abuse of discretion, it should still be reduced to an amount not to exceed $1,900. The basis of this argument is that the one day of pretrial conference for which Mr. Kennedy charged $500 is noncompensable. State, Department of Highways v. Manning, 322 So.2d 362 (La. App. 2d Cir.1975). We agree. Defendants argue that Mr. Kennedy spent the day with their attorney while viewing the property, the neighborhood, and the comparables he used. It appears that the time spent by Mr. Kennedy that day was more in the nature of a pretrial conference even though it was done while viewing property. We conclude that the charge for that day should not be included in the award.

In considering whether the remaining $1,900 of Mr. Kennedy’s fee is reasonable, we are guided by the factors considered by the court in State, Department of Highways v. Gordy, 322 So.2d 418 (La.App. 3rd Cir.1975), writ refused, 326 So.2d 370 (La. 1976). In that case the court observed:

“In determining whether the fee allowed an appraiser and taxed as costs in an expropriation suit is reasonable, we think consideration must be given to the question of whether the preparatory work done by the appraiser was reasonably necessary, whether it actually tended to show the value of the property taken or severance damages, and whether the conclusions he reached based on that preparatory work were of some usefulness in determining the award which should be made. We also believe that consideration must be given to the value of the property being taken and the amount of severance damages sustained by the landowner. An appraisal fee greatly in excess of all of the awards made is not reasonable and should be reduced.”

In the present case, while the work done by Mr. Kennedy was necessary, it was found by this court of appeal to be of little use in determining the amount of compensation which should be awarded. Mr. Kennedy’s observations of the market in the area were of some assistance in reaching a determination in this matter. In view of the amount of compensation to be awarded in this matter, we find an expert fee of $1,500 for Mr. Kennedy to be reasonable.

ATTORNEY’S FEE

The trial court awarded the Bernards $3,900 for payment of his attorney’s fee. The statute under which attorney’s fees are claimed is LSA-R.S. 19:8(A). It provides in pertinent part, “If the highest amount offered is less than the compensation awarded, the court may award reasonable attorney fees.”

We have determined that the defendants are entitled to compensation in the amount of $2,544.75. Plaintiff made an offer of $2,689 to the defendants prior to trial. (We do not consider the crop damage in this connection because the amount stipulated to was the same as that offered.) Because the compensation awarded is less than that offered, we find that attorney’s fees may not be awarded. We are aware that the terms of the taking were not agreed upon at the time of the offer; however, this situation is not covered by the statute. It is well settled that attorney’s fees are not recoverable unless specifically provided for by statute.

CONCLUSION

The compensation due defendants by Faustina includes $1,872 for the permanent right-of-way, $672.75 for the temporary work space, and $546.65 for stipulated crop damage for a total compensation award of $3,091.40. Each defendant will be awarded one-half of the total amount, or $1,545.70.

For the forégoing reasons, the judgment in favor of defendant, Dr. Harry Warren Bernard, and against Faustina Pipe Line Company for just compensation is reduced from $2,929.32 to $1,545.70. The judgment against Faustina Pipe Line Company ordering it to pay the expert fee of Mr. Sam Kennedy is reduced from $2,400 to $1,500.

The judgment against Faustina Pipe Line Company ordering it to pay attorney’s fees in the amount of $3,900 is reversed. In all other respects, the judgment of the trial court is affirmed. Costs of this appeal are assessed to defendants-appellees.

AFFIRMED IN PART, AMENDED IN PART AND AFFIRMED AS AMENDED, AND REVERSED IN PART.

      . A separate suit was filed against Mrs. Bernard and a separate opinion is being rendered this date in that matter. Faustina Pipe Line Company v. Bernard, 458 So.2d 987 (La.App. 3rd Cir. 1984).

      . The trial court awarded Dr. and Mrs. Bernard $2,929.32 each; however, the correct amount should be $2,930.13 (one-half of $4,320 f $993.60 + $546.65).


source: Caselaw Access Project

license: Public Domain

text:
    FAUSTINA PIPE LINE COMPANY, Plaintiff-Appellant, v. Helen Lindstrom BERNARD, Defendant-Appellee.
    No. 83-921.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 10, 1984.
    Rehearing Denied Nov. 26, 1984.
    Writs Denied Jan. 25,1985.
    Elizabeth Jane Hastings and Michael Mangham, Lafayette, Earl H. Willis, St. Martinville, for plaintiff-appellant.
    S. Gerald Simon, New Iberia, for defendant-appellee.
    Before FORET, STOKER, and KNOLL, JJ.
   STOKER, Judge.

For the reasons set out in Fausti-na Pipe Line Company v. Bernard, 458 So.2d 981 (La.App. 3rd Cir.1984), the judgment in favor of defendant, Helen Lind-strom Bernard, and against Faustina Pipe Line Company for just compensation is reduced from $2,929.32 to $1,545.70. The judgment against Faustina Pipe Line Company ordering it to pay the expert fee of Mr. Sam Kennedy is reduced from $2,400 to $1,500, it being understood that the total fee fixed for Mr. Sam Kennedy in this and the case with which it is consolidated is $1,500 and a payment thereof will satisfy both judgments in this respect.

The judgment against Faustina Pipe Line Company ordering it to pay attorney’s fees in the amount of $3,900 is reversed. In all other respects, the judgment of the trial court is affirmed. Costs of this appeal are assessed to defendants-appellees.

AFFIRMED IN PART, AMENDED IN PART AND AFFIRMED AS AMENDED, AND REVERSED IN PART.


author: MARVIN, Judge.

text:
    Glen D. SANDERS, Plaintiff-Appellant, v. MID-SOUTH TRUCKING, INC., Defendant-Appellant.
    No. 16537-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 31, 1984.
    Writ Denied Dec. 7, 1984.
    William Henry Sanders, Jena, for plaintiff-appellant.
    Lunn, Irion, Johnson, Salley & Carlisle by Frank M. Walker, Jr., Shreveport, for defendant-appellant.
    Before HALL, MARVIN and SEXTON, JJ.
   MARVIN, Judge.

In this worker’s compensation action, the employer appeals a judgment awarding benefits for total and permanent disability, contending that the claimant did not sustain an “accident”- within the meaning of the law and that if claimant’s disability from complications arising after surgery to correct a peptic ulcer is legally related to an admitted accident the employee sustained in 1978, the claims have prescribed. LRS 23:1031, 1209.

The claimant also appeals, contending that the trial court erred in allowing the employer to offset workers’ compensation benefits by the disability benefits that the claimant is eligible to receive under the social security law. 42 U.S.C.A. § 423, LRS 23:1225.

The thrust of claimant’s case is that pain from on-the-job back injuries dating from 1978 and the mental and physical strain of his job as a truck driver thereafter caused his ulcer to become aggravated and to require surgical correction on March 3, 1982. About six or seven weeks later, claimant’s liver abscessed and caused him to become critically ill and eventually disabled.

Following the lead of each counsel who couched their respective argument in terms of whether claimant suffered personal injury by accident within the meaning of LRS 23:1021, 1031, the trial judge declared that he must find claimant disabled under the holding of Parks v. Insurance Company of North America, 340 So.2d 276 (La.1976); and McCoy v. Kroger Company, 431 So.2d 824 (La.App. 2d Cir.1983).

Parks and McCoy are among the many cases liberally interpreting the statutory definition of accident, but which, on careful analysis, hold that a claimant’s burden, of proving an accident may be greatly relaxed only where he meets his burden of proving the causal connection between the job activity and the disabling injury or disease. Malone-Johnson, §§ 213-220. Malone-Johnson cautions that

“Such cases should not be regarded as dispensing with the requirement that the claimant establish some causal link between the employment and the disabling event. There are still instances of proper denial of compensation where this burden is not discharged by the plaintiff.” § 215, p. 442.

That authority also observes that even though the trend of the many cases involving a claimant who is particularly susceptible to disability because of a pre-existing disease or condition is to favor coverage under the act, “it still must be established that the accident played some causal role in aggravating that condition_ [Compensation is properly denied when it does not appear that some work incident did in fact render the pre-existing condition worse.” § 232, p. 495. See also Malone-Johnson, § 261, as supplemented 1984.

Our review of the many eases, all of which are either or both cited and discussed in Malone-Johnson, leads us to generally conclude that the burden of proof of a claimant in a worker’s compensation case, who is predisposed to a disabling injury or disease, may be met in two ways: If the claimant suffers an incident or accident in the traditional sense where there is a symptomatic failure of a bodily organ or member, he is entitled to the conditional presumption that

“[His] disability is presumed to have resulted from an accident, if before the accident the injured person was in good health, but commencing with the accident the symptoms of the disabling condition appear and continuously manifest themselves afterward, provided that the medical evidence shows that there is a reasonable possibility of causal connection between the accident and the disability.” § 232, p. 492. See also Robertson v. Scanio Produce, 449 So.2d 459 (La.1984).

In this first situation, the occurrence of the incident or accident considerably relaxes the claimant’s burden of proving the causal connection between the accident and the disability. If the claimant, in a second situation, is not able to point to a single incident or accident in the traditional sense, but is able to show more probably than not that repeated trauma and strain peculiar to his job caused his disability, this showing considerably relaxes the claimant’s burden of proving an accident in the traditional sense. See also Larson, The Law of Workmen’s Compensation, § 13.11.

This claimant urges that he succeeds in both ways. Not agreeing, we reverse and render judgment rejecting claimant’s demands. In the first instance, if the disability be traced to the slip and fall accident or incident on or before February 9, 1978, his claims arising out of that accident have prescribed. LRS 23:1209. In the second instance, and as we shall demonstrate, even viewing the evidence most favorably toward him, claimant has not borne his burden of proving that repeated trauma and strain peculiar to his job caused his disability.

FACTS

Claimant, who was 56 years old at the time of the trial, worked for Mid-South as a truck driver from 1974 until he was disabled in 1982. He drove tractor-trailer rigs hauling sand and gravel approximately 60 hours a week when work was available.

Claimant said he suffered a slipped lumbar disc in 1954 but that this injury had healed completely before he went to work for Mid-South in 1974. He testified that on February 9, 1978, he slipped on ice and fell and hurt his back while working. He told his witness, Dr. McCutcheon, that this accident occurred February 9, 1977. He reported the accident to his employer but stated that he was not injured in the fall. He explained that he did not report an injury because he was afraid of losing his job. Mid-South’s records show that the slip and fall occurred January 30, 1978.

Claimant also made repeated complaints to doctors and to co-workers about stomach problems and ulcers for more than a decade before he began work for Mid-South. His co-workers at Mid-South denied that claimant complained to them about back problems. He saw a Dr. Gallagher in the 1950’s complaining of “pain and burning” in his stomach. He complained to his daughter about his stomach problems. He testified that the pain in his stomach worsened about six months after he slipped and fell on the ice and hurt his back. He said he began drinking daily a half-pint to a pint of whiskey mixed with milk and taking over-the-counter drugs to ease his stomach and back pain beginning in 1978. Sometime after 1978 he said he hurt his back again while driving a cement mixer for a short while and when raising or lowering the hood of one of Mid-South’s trucks. He also said that he hurt his back in 1982 while helping change a tire on a Mid-South truck a few weeks before he went into the hospital. The witnesses who changed the tire and whom claimant named and said he told about hurting his back squarely denied that claimant said anything about hurting his back. The only significant accidents involving claimant in the employer’s records concerned a shoulder injury on August 13,1976, and the slip and fall on ice on January 30, 1978.

On February 25, 1982, claimant told Mid-South employees that he needed some vacation time to allow him to enter the hospital for his stomach problems. He did not complain of any back problems or work-related difficulty.

On March 2, 1982, Dr. Wallace Brown, a Shreveport surgeon, caused claimant to be admitted to the hospital for treatment of “peptic ulcer disease.” The written history Dr. Brown obtained from claimant is summarized:

“patient states that he has had ulcer problems off and on since the 50’s. He has bled, he has been on multiple diets; he has had nausea and vomiting and has been hospitalized and treated by many physicians many times. And at this point, he is ready to have surgery and ... anxious to ... correct his problem.”

After surgical correction of his ulcer, Dr. Brown released claimant to return to work. Claimant worked April 15 and 16, 1982. On Monday, April 19, 1982, claimant drove a Mid-South truck to a wheel alignment establishment. While awaiting work to be done on the truck, claimant experienced stomach problems and was driven home by his wife. On April 21, 1982, Dr. Brown hospitalized claimant, noting “abdominal complaints for two or three days.”

Claimant became critically ill because of a liver abscess during this hospitalization. He suffered a collapsed lung, renal failure, heart failure, and was comatose for several days. He was in intensive care for several days and remained in the hospital until July 17, 1982. Claimant has a paralysis, characterized by his physicians as “foot drop” and walks only with leg braces. Claimant also suffered some brain damage and deterioration of memory. Claimant is totally and permanently disabled.

The doctors are not certain about the medical cause of claimant’s paralysis or brain damage. Dr. McCutchen, a Houston neurologist and lawyer who testified for claimant by deposition, opined that the paralysis could have resulted either from the medication claimant took during his hospital stay, from a metabolic dysfunction arising from claimant’s illness, or “most likely” from claimant’s previous disc injury (“in 1977”) which, combined with his prolonged hospital stay, affected the nerves in the lower spinal canal, the cauda equina, and caused the paralysis.

In Dr. McCutchen’s view, the paralysis was more probably a result of back injury than a metabolic or toxic source because of the location and isolation of the paralysis. The doctor explained that he would expect a metabolic or pharmacological paralysis to affect the hands and/or other areas of the body and would not be limited to foot drop.

In Dr. Brown’s opinion, claimant’s paralysis resulted from multiple system failures caused by the infection in claimant’s liver. Dr. Brown thought that “leakage” around the area of the surgery (the liver abscess) arose from either a “new” ulceration or more probably from claimant’s chronic ingestion of alcohol. Dr. Brown said that claimant did not demonstrate any paralysis after the ulcer surgery and before claimant’s readmission and second surgery.

Dr. Osborne, defendant’s medical expert in the fields of pain rehabilitation, stress, and stress management also testified. Dr. Osborne noted that claimant’s medical history was inconsistent with a disc injury because a person with claimant’s personality would be expected to complain to his peers. There is substantial evidence that plaintiff repeatedly complained for about 30 years about his stomach but not about his back. Dr. Osborne stated that intermittent back pain is consistent with mechanical or muscular back injury, but is not consistent with a disc injury where pain is constant. Dr. Osborne finally opined that claimant’s back injury was not a disc injury.

Also testifying by deposition was Dr. Kottle, an internist with the subspecialty of nephrology (the study of renal failure and electrolyte imbalances). Dr. Kottle thought it unlikely that claimant’s infection developed from surgery because of the localized nature of the abscess. He opined that the abscess could have been seeded from mouth abscesses or vice versa, could have developed from leakage, or from aspiration.

Dr. McCutcheon saw claimant one time on February 21, 1983. He said that claimant told him of a lumbar disc injury in 1954 with numbness in his leg, lasting for several years, and of the slip and fall on ice on February 9, 1977, and of continued back pain thereafter. He opined that claimant’s ulcer was caused by stress from the continued back pain and from fear that claimant would losé his job. Dr. McCutcheon concluded that claimant’s paralysis “may very well be due to spinal stenosis in association with lumbar discopathy ... [and that] toxic and metabolic etiology would also have to be considered [as a cause] in view of [claimant’s] prolonged hospitalization, drug therapy and hypermotility of the gastrointestinal tract.” Dr. McCutcheon stated that the only “sudden incident” causing a back injury related to him by claimant was the slip and fall on ice.

Dr. Brown concluded that the abdominal or liver abscess for which claimant was readmitted to the hospital in 1982 was not related in any way to claimant’s employment. Dr. Brown opined that claimant’s abscess “very probably may have redeveloped [from] some type of ulceration ... we felt that was probably due to — not to work, but to alcohol.”

Dr. Osborne concluded that the “possible explanations” for claimant’s disability include these possibilities: one possibility was that claimant was a “stress prone ... a stressful individual ... probably alcoholic ... [who] could have created his own ulcer.” Another possibility, which was thought inconsistent with claimant’s medical history, was “if [claimant] did have a back problem, with his personality trait, he would over-utilize over-the-counter drugs and ... alcohol and probably create most of his own problems.” Dr. Osborne said it would be “speculation” to deduce that claimant’s paralysis resulted from the infection, from the drugs administered to treat the infection, or from claimant’s laying flat on his back for a prolonged period of time. Dr. Osborne explained that claimant’s disability possibly could have been caused by any of these things and that the most probable cause has not been diagnosed.

At this juncture, we note that claimant, characterized as a stress prone, neurotic individual who consumed daily at least eight ounces of whiskey from 1978 until his hospitalization in 1982, had a wife about 28 years his junior, who was younger than his daughter, and had a son who was in the penitentiary. Claimant’s argument (taken from his brief to the lower court) is that his “catastrophy,” caused by (1) his ulcer, (2) his neurosis, (3) his constant driving and straining at work, constituted personal injury within the meaning of the statute, even though there was no final “giving way” or “climactic breakdown ...” He asserts that the probability is that the prolonged hospitalization was the last cumulative fact that caused the paralysis and disability. Even if this assertion be accepted, claimant has not shown, other than by speculation, that his prolonged hospitalization was causally connected to repeated trauma and stress peculiar to his job as a truck driver. The law requires that a worker’s compensation claimant prove his case by more than speculation.

CONCLUSION

If claimant proved personal injury by accident from the January 30, 1978, slip and fall, any claims for disability resulting from that accident have prescribed. LRS 23:1209. This action was not instituted until February 14, 1983.

Claimant has not borne his burden of proving that either or both mental and physical strain peculiar to his job caused his disabling paralysis.

The trial court erred in finding Parks and McCoy controlling because the causal connection between the job related strain, physical and mental, after January 30, 1978, is at best tenuous and was not proved by claimant.

With this result, we need not consider claimant’s contention in his appeal that the trial court erred in applying LRS 23:1225.

DECREE

The judgment appealed is reversed and judgment is hereby rendered rejecting claimant’s demands at claimant’s cost.

REVERSED AND RENDERED.

SEXTON, J., concurs.

      . The trial judge in McCoy is the trial judge in this case.

      . Malone-Johnson, § 213, p. 426.


author: NORRIS, Judge.

text:
    William SWINDLE, Plaintiff-Appellee, v. HAUGHTON WOOD COMPANY, INC., et al., Defendants-Appellants.
    No. 16542-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 31, 1984.

      James D. Hall, Bossier City, for plaintiff-appellee.
    Loridans, Beresko & Loridans by Alfred R. Beresko, Bossier City, for defendants-appellants.
    Rountree, Hicks & Cox by Dale G. Cox, Shreveport, for third party defendant.
    Before JASPER E. JONES, SEXTON and NORRIS, JJ.
   NORRIS, Judge.

Haughton Wood Co., Inc., Margaret Pursley, D.J. Pursley and John Gardner, original defendants and third party plaintiffs in this action for damages appeal the trial court’s granting of a summary judgment in favor of third party defendant, Western Preferred Casualty Company. For the reasons hereinafter expressed we reverse and remand.

Plaintiff, William Swindle, filed suit in Bossier Parish for damages against appellants claiming they “and/or their agents and/or employees” violated a timber deed by harvesting hardwood trees from plaintiff’s property. Plaintiff alleges that in May of 1981 his ancestor in title, Mrs. Martha Lowery Swindle, granted a timber deed to defendant, Haughton Wood Co., Inc., which gave it the right to cut all pine timber seven inches and above on a tract of land owned by her in Bossier Parish, that in October of 1981 a large number of hardwood trees were being cut by the defendants through their agents or employees, in violation of the timber deed, that he notified Mrs. Margaret Pursley of the Haugh-ton Wood Co., Inc. to cease any further operations until the matter could be resolved, but that despite this notification the defendants continued to remove timber from the property.

The original defendants filed a dilatory exception of vagueness and lack of procedural capacity. Also, an answer was filed on behalf of the original defendants by an attorney for Western Preferred Casualty Company which attorney later withdrew claiming that his company’s insurance policy did not provide coverage for this incident.

Plaintiff then supplemented and amended his original petition to satisfy the objections raised by defendants in their exception and also therein alleged that the Purs-leys were the owners and operators of Haughton Wood Co., Inc. and that their agents and/or employees, specifically Gardner, cut and removed the hardwood timber from plaintiff’s property at the request of these three defendants and pursuant to their instructions. Appellants answered denying these allegations. They further responded that they only cut pine timber seven inches and above and that unknown persons, not connected with Haughton Wood or any of the defendants, had been observed cutting hardwood trees from the property for use as firewood. Appellants also filed a third party action against Western Preferred Casualty Company alleging that Haughton Wood Co., Inc., was insured by a policy of liability insurance issued by Western Preferred Casualty Company alleging that Haughton Wood Co., Inc., was insured by a policy of liability insurance issued by Western Preferred covering any and all acts for which it might be found liable as a result of plaintiffs suit. Appellants claim that if they should be found liable to plaintiff for any amount whatsoever, then they are entitled to full indemnification from Western Preferred.

Western Preferred answered the third party petition and subsequently filed a motion for summary judgment based on the premise that plaintiff’s petition alleged an intentional act for which its policy excluded coverage. In opposition to the motion, appellants filed an affidavit executed by Margaret Pursley stating that as secretary-treasurer of Haughton Wood Co., Inc., she was authorized to execute timber deeds for the corporation and to obtain services of persons to cut timber and that, in said capacity, she entered into an agreement with John Gardner to harvest all pine timber seven inches and above from the Swindle property. The affidavit further stated that she never authorized John Gardner to cut any hardwood timber from the Swindle property and that she never personally visited the Swindle property while harvesting operations were taking place.

The lower court granted the motion for summary judgment based upon its finding that the original plaintiff’s petition alleged an intentional act on behalf of the defendants and that the policy of insurance issued by Western Preferred Casualty excluded coverage for intentional acts. Judgment was rendered dismissing appellants’ third party demand for indemnification with prejudice. It is from that ruling this appeal was taken.

The issue on appeal is did the mover carry its burden of showing that there was no genuine issue of material fact and was mover entitled to summary judgment as a matter of law.

La.C.C.P. art. 966 provides:

A. The plaintiff or defendant in the principal or any incidental action, with or without supporting affidavits, may move for a summary judgment in his favor for all or part of the relief for which he has prayed. The plaintiff’s motion may be made at any time after the answer has been filed. The defendant’s motion may be made at any time.
B. The motion for summary judgment shall be served at least ten days before the time specified for the hearing. The adverse party may serve opposing affidavits prior to the date of the hearing. The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.
C. A summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages.

The jurisprudence of this state has been consistent in its interpretation of this article. A motion for summary judgment should be granted if, and only if, the pleadings, depositions, answers to interrogatories, admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law. Bartlett v. Calhoun, 430 So.2d 1358 (La.App. 3d Cir.1983); Jones v. Prudential Ins. Co. of America, 415 So.2d 223 (La.App. 2d Cir.1982); Jewell v. Thompson, 386 So.2d 689 (La.App. 3d Cir. 1980), writ denied 393 So.2d 746, and others. The burden of proof in a motion for summary judgment is on the mover to establish that there are no genuine issues of material fact. This burden is a great one. Only when reasonable minds must inevitably concur is a summary judgment warranted and any doubt should be resolved in favor of a trial on the merits. Sanders v. Hercules Sheet Metal, Inc., 385 So.2d 772 (La.1980); Jones v. Prudential Ins. Co. of America, supra; Tipton v. Lewis, 403 So.2d 806 (La.App. 2d Cir.1981).

In short, a summary judgment is no substitute for a trial on the merits. Hebert v. Vice, 413 So.2d 342 (La.App. 3d Cir. 1982); Millet v. Johnson, 381 So.2d 1293 (La.App. 4th Cir.1980).

A fact is material if its existence or nonexistence may be essential to plaintiff’s cause of action under the applicable theory of recovery. Facts are “material” if they potentially insure or preclude recovery, affect the litigants’ ultimate success or determine the outcome of a legal dispute. Sanders v. City of Blanchard, 438 So.2d 714 (La.App. 2d Cir.1983). Therefore, the question of whether any damages which occurred were the result of an intentional act on the part of Haughton Wood Company, Inc. or the Pursleys is a material fact, as it will preclude or insure recovery under provisions of the insurance policy.

The policy provisions pertinent to this controversy provide in essence:

(a) That the company will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of property damage caused by an occurrence;
(b) An occurrence means an accident which results in property damage neither expected nor intended from the standpoint of the insured; and
(c)The term insured includes Haughton Wood Co., Inc., its executive officers, directors or stock holders acting within the scope of their duties.

Almost identical language was considered in McBride v. Lyles, 303 So.2d 795 (La:App. 3d Cir.1974). The plaintiff in McBride sued for personal injuries sustained in a fight with several minors. The defendant insurer denied coverage under homeowner policies issued to two of the defendant-fathers, contending that the policies excluded coverage for intentional injuries inflicted by persons defined as insureds thereunder. The policy provision relied upon by the insurer excluded coverage of “bodily injury or property damage which is neither expected nor intended from the standpoint of the insured.” The court noted that the language of this exclusion “dealt with a narrow area of damages or injuries ‘expected or intended from the standpoint of the Insured’ only not any expected or intended damages or injuries.” (Emphasis added). It then concluded:

No person can insure against his own intentional acts. Public policy forbids it. Balizar v. Williams, [254 So.2d 470], supra. But public policy does not forbid one to insure against the intentional acts of another for which he may be vicariously liable.
... The fathers are the insureds for purposes of this analysis. The injuries suffered by the plaintiff were not intended or expected from the standpoint of the insureds. Therefore the exclusion does not apply ...

See also, White v. LeGendre, 359 So.2d 652 (La.App. 1st Cir.1978); Baltzar v. Williams, 254 So.2d 470 (La.App. 3d Cir.1971).

Plaintiff’s cause of action alleges that Haughton Wood Co., Inc. and the Pursleys instructed their agents and/or employees, specifically Gardner, to cut hardwood timber from the subject tract in violation of the terms of the timber deed. Appellants’ answer and the affidavit in opposition to third party defendant’s motion for summary judgment puts squarely at issue the material fact of whether Haughton Wood Co., Inc. and the Pursleys authorized or intended such action, if committed at all, by Gardner or any of their agents or employees. Third party defendant, Western Preferred, offered no evidence in support of its motion for summary judgment other than a copy of the insurance policy and an affidavit certifying to its correctness. It attempts to rely solely on the allegations of plaintiff’s petition to show that the damage complained of was expected or intended from the standpoint of the insured and ignores the other pleadings and affidavit in opposition to its motion contrary to the admonition of La.C.C.P. art. 966. See also, Jones v. Prudential Ins. Co. of America, supra.

When we look to the “occurrence” complained of from the standpoint of the insureds in the instant case and consider all the pleadings and the affidavit on file, we find a genuine issue of material fact as to whether or not the insureds intended or expected the damage plaintiff complains of. The determination of this crucial factual issue deserves a trial on the merits and cannot be solely governed by the allegations of plaintiff’s petition.

The appellee cites Thibodeaux v. Western World Insurance Company, 391 So.2d 24 (La.App. 3d Cir.1980); Bacon v. Diamond Motors, Inc., 424 So.2d 1155 (La. App. 1st Cir.1982); Young Oil Company of Louisiana, Inc. v. Durbin, 412 So.2d 620 (La.App. 2d Cir.1982), in support of the ruling by the trial court. However, these cases are clearly distinguishable from the instant situation. In Thibodeaux the court found no coverage only after a full trial on the merits which revealed an intentional trespass has occurred. In Bacon, insurance coverage for faulty repairs was denied by summary judgment because such repairs clearly fell within a specific exclusionary clause of the policy. Young stands for the proposition that an insurer’s duty to defend a suit is predicated on the allegations of the plaintiff’s petition. The insurer's duty to defend is not at issue here. The issue is indemnification.

We conclude that mover has failed to carry its burden of proof to show that there exists no genuine issue of material fact and that it was entitled to summary judgment as a matter of law. Accordingly, we reverse the granting of summary judgment in favor of Western Preferred Casualty Company and remand to the trial court for further proceedings consistent with this opinion. Costs of this appeal are assessed against appellee.

REVERSED AND REMANDED.


author: CUTRER, Judge.

text:
    STATE of Louisiana, Plaintiff-Appellee, v. Murphy LAMB, Defendant-Appellant.
    No. CR83-618.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 7, 1984.

      Pat F. Willis, Jr., Atty. At Law, Opelou-sas, for defendant-appellant.
    Morgan J. Goudeau, III, Dist. Atty., Opelousas, for plaintiff-appellee.
    Before DOMENGEAUX, CUTRER and LABORDE, JJ.
   CUTRER, Judge.

On May 15, 1982, the defendant, Murphy Lamb, was arrested and charged with second degree murder, a violation of LSA-R.S. 14:30.1. On May 25, 1982, a grand jury returned a true bill charging defendant with second degree murder. The defendant entered a plea of not guilty and was later tried and convicted of the charge by a jury of twelve persons. The defendant filed a motion for a new trial; a hearing was held and the motion was denied. Defendant then waived all delays in sentencing and was sentenced to life imprisonment at hard labor without benefit of parole, probation or suspension of sentence. Defendant appeals his conviction alleging two assignments of error.

FACTS

During the early morning hours of May 15, 1982, defendant, the victim and several of their friends and relatives were visiting various drinking establishments in the area of Opelousas, Louisiana, known as “The Hill.” It appears that defendant and the victim, Lionel Zachary, were both dating the same girl, Sophie, who had informed Zachary that she was pregnant with the defendant’s child. Defendant claims that he had been warned that Zachary was out to get him because of Sophie’s condition.

During the course of the evening, Zachary and defendant became involved in a fight. From that point on, hostilities escalated between the two men. Apparently, as defendant tried to drive away from “The Hill,” Zachary would block his path at every turn. Finally, defendant approached Zachary’s car, where he was seated behind the steering wheel, stood beside and slightly behind Zachary, and fired one shot into Zachary’s shoulder area. The shot pierced Zachary’s lungs and lodged near the heart, triggering a tamponade which resulted in the victim’s death.

Shortly thereafter, defendant turned himself in to local authorities and gave a complete statement recounting the events of that night and the shooting of Zachary.

ASSIGNMENT OF ERROR NUMBER 1

Through this assignment the defendant-argues that the trial court erred in denying the motion for a new trial since the verdict was contrary to the law and the evidence and the verdict does an injustice to the defendant.

The defendant was charged with second degree murder, a violation of LSA-R.S. 14:30.1, which reads as follows:

“Second degree murder is the killing of a human being:
(1) When the offender has a specific intent to kill or to inflict great bodily harm; or”

Thus, the State was required to prove beyond a reasonable doubt that the defendant in fact killed Zachary and that he acted with the specific intent to kill or inflict great bodily harm. The record is replete with testimony that the defendant did kill Zachary. Even the defendant, both in his written statement and on the witness stand, admitted that he pointed a loaded gun at Zachary and pulled the trigger, firing one fatal shot into the victim. The expert and lay testimony leaves no doubt that the defendant killed Zachary. As to intent, it is clear from the testimony of numerous witnesses, and the defendant himself, that the jury could infer specific intent from defendant’s actions. The defendant willingly walked over to Zachary’s car, stood beside and slightly behind Zachary, pointed his gun at Zachary’s back, and fired one shot, killing him.

These facts alone were enough for the jury to conclude that the defendant intended to at least inflict great bodily harm. For, “although intent is a question of fact, it need not be proven as a fact; instead, it may be inferred from circumstances of transactions and actions of the accused.” State v. Fuller, 414 So.2d 306 (La.1982); State v. McDermitt, 406 So.2d 195 (La.1981); In Interest of Franklin, 399 So.2d 671 (La.App. 1st Cir.1981); LSA-R.S. 15:445. Additionally, specific intent is an ultimate legal conclusion to be resolved by the factfinder. State v. Graham, 420 So.2d 1126 (La.1982). The jury could easily infer, from the circumstances presented to it, that defendant acted with the specific intent to do great bodily harm. Discharging a firearm aimed directly at the victim is indicative of intending to do great bodily harm. Viewing the evidence in the light most favorable to the prosecution, it is evident that the jury could reasonably have concluded that defendant acted with the requisite intent. See: State v. Huizar, 414 So.2d 741 (La.1982).

Defendant contends that the evidence of the previous fight, continued harrassment, and the fact that defendant thought the victim was armed and reaching for a gun, all indicate that he acted in self-defense. It is well settled that:

“In a homicide prosecution where the defendant claims self-defense, the state must prove beyond a reasonable doubt that the homicide was feloniously committed and was not perpetrated, in self-defense.” (Citations omitted.)

State v. Edwards, 420 So.2d 663 (La.1982).

The record clearly establishes that the defendant did not act in self-defense. The testimony at trial does not indicate that defendant was in immediate danger from the victim. The fight had ended long before this confrontation. The two men left in their automobiles. Defendant got out of his car and voluntarily walked over to the victim’s car, gun in hand. As he approached the victim he thought he saw him reach downward for a weapon and, thus, defendant fired one shot into the victim’s back. No weapon was found on or near the victim and witnesses testified that the victim was not armed. In addition, the jury could consider the strong possibility of retreat in this case. Thus, the facts are inconsistent with self-defense and indeed strongly tend to prove otherwise.

There was more than enough evidence upon which the jury could base its verdict of guilty as charged. For the reasons stated above, this assignment is without merit. ASSIGNMENT OF ERROR NUMBER 2

Through this assignment, the defendant argues that the trial court erred in polling the jury in accordance with LSA-C. Cr.P. art. 812(2), which provides:

“(2) The procedures for the written polling of the jury shall require that the clerk hand to each juror a separate piece of paper containing the name of the juror and the words ‘Is this your verdict?’ Each juror shall write on the slip of paper the words ‘Yes’ or ‘No’ along with his signature.”

The defendant asserts that the technical requirements of art. 812(2) may not have been followed. But defendant made no contemporaneous objection at trial to the procedure used to poll the jury. Thus, the trial court was not afforded an opportunity to comply with the technical requirements of art. 812(2). Because the defendant failed to make a contemporaneous objection to the polling procedure used, the procedure cannot now be reviewed.

“In his brief, defendant contends that the court improperly polled the jury by a system in which each juror wrote his verdict and name on a separate piece of paper. ⅜ * *
“The minutes do not reflect the procedure used.
“Louisiana Code of Criminal Procedure Article 841 prohibits us from reviewing the correctness of this procedure since the record does not reflect that the defendant voiced a contemporaneous objection to the polling. State v. Sosa, 328 So.2d 889 (La.1976), and cases cited therein.”

State v. Gardette, 352 So.2d 212 (La.1975). See also, State v. Mouton, 319 So.2d 331 (La.1975).

This assignment is without merit.

For these reasons, the conviction and sentence are affirmed.

AFFIRMED.


author: DOMENGEAUX, Judge.

text:
    STATE of Louisiana v. Ivy Lee DEAN.
    No. CR83-902.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 7, 1984.
    U. Gene Thibodeaux, Newman, Thibo-deaux & Marshall, Lake Charles, for defendant-appellant.
    Leonard Knapp, Jr., Dist. Atty., Larry Regan, Asst. Dist. Atty., Lake Charles, for plaintiff-appellee.
    Before DOMENGEAUX, CUTRER and LABORDE, JJ.
   DOMENGEAUX, Judge.

The defendant, Ivy Lee Dean, was charged by Bill of Information on November 22, 1982, with possession of a controlled dangerous substance, pentazocine, a violation of La.R.S. 40:967 C.

On June 22, 1983, following a trial by jury, the defendant was found guilty as charged by a unanimous verdict. On July 12, 1983, the defendant made a motion for a new trial which was denied, and the defendant waived any further delay in sentencing.

The trial judge committed defendant to the Department of Corrections to serve four years in a State penal institution.

Defendant appeals his conviction and sentence alleging four assignments of error. However, as he has failed to brief any of those assignments of error, they are considered abandoned. State v. Dewey, 408 So.2d 1255 (La.1982), and State v. Carlisle, 315 So.2d 675 (La. 1975). We are therefore limited in this appeal to a consideration of those errors discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence, i.e., patent errors. La.C.Cr.P. Art. 920(2).

We have conducted a careful examination of the record before us pursuant to the provisions of La.C.Cr.P. Art. 920, and finding no errors patent on the record, we hereby affirm the conviction.

AFFIRMED.


text:
    STATE of Louisiana, Plaintiff-Appellee, v. Jerry Lee HAMPTON, Defendant-Appellant.
    No. CR83-946.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 7, 1984.
    George Higgins, Pineville, for defendant-appellant.
    Edward Roberts, Asst. Dist. Atty., Alexandria, for plaintiff-appellee.
    Before DOMENGEAUX, CUTRER and LABORDE, JJ.
   CUTRER, Judge.

The defendant, Jerry Lee Hampton, was charged by a grand jury indictment with the crime of second degree murder, a violation of LSA-R.S. 14:30.1. On June 16, 1983, after trial by a jury of twelve, defendant was found guilty as charged. On August 1, 1983, defendant was sentenced to serve life imprisonment without benefit of parole, probation or suspension of sentence. Defendant appeals his conviction.

The defendant did not file any assignments of error as required by LSA-C.Cr.P. art. 844, nor has a brief been filed. Therefore, this court is limited to a review of the record for errors that are discoverable by a mere inspection of the pleadings. State v. Thibodeaux, 448 So.2d 879 (La. App. 3rd Cir.1984); LSA-C.Cr.P. art. 920(2). Accordingly, we have conducted a careful examination of the record before us pursuant to the provisions of LSA-C.Cr.P. art. 920.

There appear to have been no errors committed by the trial court which are patent on the record.

For these reasons the conviction and sentence are affirmed.

AFFIRMED.


author: YELVERTON, Judge.

text:
    STATE of Louisiana, Plaintiff-Appellee, v. Clarence LAWRENCE, Jr., Defendant-Appellant.
    No. CR83-950.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 7, 1984.
    Julius W. Grubbs, Jr., Lafayette, for defendant-appellant.
    Michelle Jackson, Asst. Dist. Atty., Lafayette, for plaintiff-appellee.
    Before GUIDRY, STOKER and YEL-VERTON, JJ.
   YELVERTON, Judge.

Defendant, Clarence Lawrence, Jr., charged with the crime of attempted aggravated rape (La.R.S. 14:27 and 14:42), was convicted by a jury and sentenced by the court to 21 years at hard labor; he appeals this conviction.

No assignments of error were perfected as required by LSA-C.Cr.P. art. 844, nor has a brief been filed. Therefore, this court is limited to a review of the record for errors that are discoverable by a mere inspection of the pleadings. C.Cr.P. art. 920; State v. Thibodeaux, 448 So.2d 879 (La.App. 3rd Cir.1984). We have reviewed the record and find no error.

Accordingly, the conviction and sentence are affirmed.

AFFIRMED.


text:
    Ronald HABETZ, Plaintiff-Appellant, v. LOUISIANA FARM BUREAU MUTUAL INSURANCE COMPANY, Defendant-Appellee.
    No. 83-978.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 7, 1984.
    Miller, Miller & Craton, Michael B. Miller, Crowley, for plaintiff-appellant.
    Edwards, Stefanski & Barousse, Russell Zaunbrecher, Crowley, for defendant-appel-lee.
    Before GUIDRY, STOKER and YEL-VERTON, JJ.
   YELVERTON, Judge.

Ronald Habetz appeals a summary judgment which held, as a matter of law, that on October 2, 1978, a date when appellant was involved in an automobile accident, there was no automobile liability insurance policy in existence issued to him by Louisiana Farm Bureau Mutual Insurance Company, the appellee. We affirm.

The stipulated facts show that on March 7, 1978, Habetz purchased from this insurance company a policy of automobile liability insurance for a six-month period until September 7, 1978. Before September 7, 1978, the insurer notified Habetz that the premium would be due on that date. Ha-betz did not pay the premium.

On October 2, 1978, he was involved in an accident, and on October 6,1978, he paid his premium and the policy was reissued for another six-month period with the effective date of October 6, 1978.

Habetz was at fault in the October 2 accident, and paid damages. He sued Louisiana Farm Bureau Mutual Insurance Company for recovery of his loss. The defendant denied coverage. Both parties filed motions for summary judgment. The trial court denied the plaintiffs motion but granted the defendant’s, and dismissed the suit, for the reason that there was no insurance policy in existence at the time of the loss. This is the judgment that plaintiff appeals.

The only issue is whether, there being no genuine issue of material fact in this case, the insurer was entitled to summary judgment as a matter of law. LSA-C.C.P. art. 966. A review of the record reveals that the summary judgment was proper.

Plaintiff argues that the defendant could not refuse to renew the policy, and that it was, therefore, effective on October 2, 1978, the date of his accident. We disagree. Both the contract between the parties and La.R.S. 22:636.1, dealing with cancellations of policies, reveal that the plaintiffs policy was not reissued until October 6, 1978, and that therefore, it was not in effect on October 2, 1978, the date of the accident.

The contract between the parties relating to renewal reads, in part, as follows:

“C. Renewal
If this policy is written for a policy period of less than one year, the Company agrees that it will not refuse to renew except as of the expiration of a policy period which coincides with the end of an ‘annual period’ commencing with its original effective date.
If the Company elects not to renew this policy, it shall mail to the insured named in item 3 of the declarations, at the address shown in this policy, written notice of such nonrenewal not less than twenty days prior to the expiration date; provided that, notwithstanding the failure of the Company to comply with the foregoing provisions of this paragraph, this policy shall terminate.
1. on such expiration date, if
(a) the named insured has failed to discharge when due any of his obligations in connection with the payment of premium for this policy or any installment thereof, whether payable directly to the Company or its agent or indirectly under any premium finance plan or extension of credit; or

The law applicable to the issue is Paragraph E of La.R.S. 22:636.1 which provides:

“E. No insurer shall fail to renew a policy unless it shall mail or deliver to the named insured, at the address shown in the policy, at least twenty days advance notice of its intention not to renew. This subsection shall not apply: (1) if the insurer has manifested its willingness to renew; or (2) in case of nonpayment of premium; provided that, notwithstanding the failure of an insurer to comply with this subsection, the policy shall terminate on the effective date of any other insurance policy with respect to any automobile designated in both policies.
“Renewal of a policy shall not constitute a waiver or estoppel with respect to grounds for cancellation which existed before the effective date of such renewal.”

The above quoted statutory provision was involved in a similar factual setting in Edwards v. York, 370 So.2d 641 (La.App. 4th Cir.1979), and the court decided that the insurer, having manifested its willingness to renew, was under no obligation to renew unless the insured accepted its offer by paying the premium.

So it is in our case. The insurer expressed its willingness to renew by sending plaintiff a premium notice. Since the plaintiff did not pay the necessary premium, defendant was under no obligation to renew the policy, and it expired on September 9, 1978. Therefore, the policy was not in effect on October 2, 1978, when the accident happened. The defendant was entitled to a summary judgment as a matter of law, and the suit against it was properly dismissed.

For the reasons assigned the judgment appealed from is affirmed. All costs are assessed against plaintiff-appellant, Ronald Habetz.

AFFIRMED.


text:
    Norris J. BROUSSARD, Plaintiff-Appellant, v. TOWN OF DELCAMBRE, et al., Defendants-Appellees.
    No. 83-1016.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 7, 1984.

      Anthony J. Fontana, of Theall & Fonta-na, Abeville, for plaintiff-appellant.
    Edwin S. Patout, New Iberia, David Sanders, Baton Rouge, for defendants-ap-pellees.
    Before GUIDRY, STOKER and YEL-VERTON, JJ.
   STOKER, Judge.

Plaintiff, Norris J. Broussard, brought this suit for declaratory judgment seeking to have the mayor’s court of the Town of Delcambre and LSA-R.S. 33:441.3 declared unconstitutional under the Louisiana and United States Constitutions. The trial court found both the mayor’s court and the statute in question to be constitutional and rendered judgment accordingly. We affirm.

As to the validity of the mayor’s court itself, plaintiff argues that it is unconstitutional simply because the mayor is untrained in the law and can not guarantee those appearing before him every right granted under the federal and state constitutions. This argument has been considered and rejected by the United States Supreme Court in North v. Russell, 427 U.S. 328, 96 S.Ct. 2709, 49 L.Ed.2d 534 (1976). In North the court held that no constitutional violations occur when an accused who is subject to possible imprisonment is tried before a non-lawyer judge when a later trial de novo is available. The requirement of a trial de novo is met in Louisiana by LSA-R.S. 13:1896 which provides that an appeal to district court in criminal cases from a mayor’s court is a trial de novo. For these reasons, it is clear that the mayor’s court in the Town of Del-cambre is clearly constitutional as established.

Under LSA-R.S. 33:441.3, the may- or of the Town of Delcambre is permitted to appoint a magistrate to sit in his stead as presiding official over the mayor’s court. The statute in question provides:

“The board of aldermen of the town of Delcambre, shall upon request of the mayor, appoint an attorney who shall be designated as court magistrate and who shall serve at the pleasure of the mayor and may from time to time be designated by the mayor to serve in his stead as the presiding official over the mayor’s court. Whenever the magistrate is so designated by the mayor to preside over the mayor’s court, he shall exercise the powers and authority of the mayor over said court. The magistrate shall serve at a salary fixed by and to be paid by the board of aldermen.”

Plaintiff argues that “... a state cannot, without violating the equal protection rights of its citizens, set up a court giving the Judge the unrestricted power to hear the cases that he in his own discretion decides to hear.” Plaintiff points out that the statute in question sets up a situation in which the mayor could use his power to help a friend or hurt an enemy; however, there is no claim or any evidence that his situation has occurred. The position of the mayor in this matter is no different from that of any other judge who might choose to abuse his discretion. There has been no showing that the equal protection rights of any citizens have been violated.

Plaintiff also argues that the statute allowing the mayor to appoint a magistrate to sit in his stead violates LSA-Const. of 1974, Art. 5, Sec. 22, which provides in part:

“(A) Election. Except as otherwise provided in this Section, all judges shall be elected. Election shall be at the regular congressional election.”

The remainder of Section 22 provides for the temporary appointment of judges to fill vacancies until an election can be held. Plaintiff admits that the mayor as an elected official fulfills the requirement of Section 22 but argues that the appointment of the magistrate violates the section. The mayors’ courts are provided for in Art. 5, Sec. 20 of the 1974 Constitution which reads:

“Mayors’ courts and justice of the peace courts existing on the effective date of this constitution are continued, subject to change by law.”

In order to give effect to plaintiff’s theory and argument, it would be necessary for us to extend the term “judge” as used in Section A of Article 5 of Section 22 of the Louisiana Constitution of 1974 to all officials who hear and rule in cases in courts of any nature authorized by law in this State. We think, however, that the term “court” as employed in the Constitution and laws of this' State is broader than the term “judge.” The Constitution itself speaks of mayors’ courts and justice of the peace courts as noted above. Insofar as we can determine, the term “judge” has never been applied to mayors who function in mayors’ courts or justices of the peace who function in justice of the peace courts. Although the terms “judge” and “court” are sometimes used interchangeably, it is clear that mayors and justices of the peace who hold court are, nevertheless, not judges.

It is a matter of general knowledge that certain judicial functions are performed in various judicial systems by officials referred to as commissioners, magistrates, referees, masters and so on. While distinctions among officers in the judicial system in this State may not be specifically provided for, it is our conclusion that the Louisiana Constitution requirement that “all judges be elected” was not meant to cover magistrates appointed to function in mayors’ courts under such authority as LSA-R.S. 33:441.3.

For the foregoing reasons the statutory provision setting up the position of court magistrate for the Town of Delcambre is not constitutionally invalid.

The judgment of the trial court upholding the constitutionality of the mayor’s court and LSA-R.S. 33:441.3 is affirmed. Costs of this appeal are assessed to plaintiff-appellant.

AFFIRMED.


author: KNOLL, Judge.

text:
    Roger D. BLOOD, Plaintiff-Appellant, v. STATE of Louisiana, DEPARTMENT OF WILDLIFE & FISHERIES, et al., Defendant-Appellee.
    No. 83-1017.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 7, 1984.
    Gary J. Ortego, Ville Platte, for plaintiff-appellant. '
    Fruge & Vidrine, Chris B. Fruge, Ville Platte, for defendant-appellee.
    Before FORET, DOUCET and KNOLL, JJ.
   KNOLL, Judge.

Roger D. Blood appeals from a judgment dismissing his claim for damages against the State of Louisiana, Department of Wildlife and Fisheries, and game warden, John Broussard, for malicious prosecution. The trial court found in favor of the State because probable cause did exist to charge Blood with taking illegal deer and hunting deer at night. Blood assigns as error that the trial court committed manifest error in its finding of probable cause for his arrest 2V2 months following the alleged game violations when he was not arrested nor ticketed on the night of the alleged incident, and, that no further evidence was gathered during that period of time. After a careful review of the record we affirm, finding probable cause did exist.

On November 19, 1981, Agent John Broussard received a phone call at approximately 6:20 p.m. complaining of someone firing shots in a field in the Lone Pine area. Agents Broussard and Roy Allen Vidrine responded to the phone call and commenced an investigation. Several persons informed the agents that they heard shots at approximately 6:10 p.m. On that particular day, legal shooting hours ended at 5:41 p.m. Blood, his brother, and his nephew were seen leaving the field that evening. Blood told the agents that he fired five shots at a buck that evening about 5:30 or 5:35 p.m. The next day two dead deer, a doe and a fawn, were found in the field. Both had been shot, apparently with a 30-06 rifle. Agent Broussard testified that on the night he questioned Blood, Blood said he had used a 30-06 rifle. At trial, however, Blood testified that he used a 243 rifle.

On February 26, 1982, Blood was charged with taking illegal deer in open season and hunting deer at night, violations of LSA-R.S. 56:123 E(l) and (2). The case was tried on April 2, 1982, and Blood was acquitted. The trial court found that the State had not proved Blood’s guilt beyond a reasonable doubt. After Blood’s acquittal, he filed this action against the State and Agent Broussard for malicious prosecution.

In order to prevail in a malicious prosecution action, the plaintiff must prove the following elements: (1) the commencement or continuance of an original criminal or civil judicial proceeding; (2) its legal causation by the present defendant in the original proceeding; (3) its bona fide termination in favor of the present plaintiff; (4) the absence of probable cause for such proceeding; (5) the presence of malice therein; and (6) damage conforming to legal standards resulting to plaintiff. Jones v. Soileau, 448 So.2d 1268 (La.1984); Hibernia National Bank of New Orleans v. Bolleter, 390 So.2d 842 (La.1980); Breda v. Attaway, 371 So.2d 1270 (La.App. 3rd Cir. 1979). The only element contested is the lack of probable cause.

The existence of probable cause in any case depends upon the particular facts of that case. Probable cause does not depend merely upon the actual state of the facts, but upon the defendant’s honest belief of the facts' in making the charge against the plaintiff. Culpepper v. Ballard, 344 So.2d 110 (La.App. 2nd Cir.1977); Bristow v. Messer, 336 So.2d 44 (La.App. 2nd Cir.1976).

Blood contends that there was no probable cause to arrest him on the night of the alleged incident or any time thereafter. Blood places much emphasis on the fact that he was not arrested until 2½ months later. Blood argues that both Agents .Broussard and Vidrine admitted at trial that there was not enough evidence or probable cause to arrest or ticket him or other hunters in his party on that evening; and further, that Agent Broussard stated that on the following day after more in the field investigation was done and the alleged deer were'found, no tickets or arrests were made; therefore, since he was not immediately arrested, there was .no probable cause to arrest him later. We disagree.

The record does not support Blood’s allegation. Agent Broussard testified that he did not arrest Blood immediately because he wanted to investigate further, obtain signed statements from the witnesses, prepare his report, and consult with the District Attorney. Moreover, a law enforcement officer is not required to arrest a suspect at the point at which probable cause for the arrest arises. State v. Coleman, 412 So.2d 532 (La.1982); Cardwell v. Lewis, 417 U.S. 583, 94 S.Ct. 2464, 41 L.Ed.2d 325 (1974). It is well settled that a suspect has no constitutional right to be arrested as soon as the officer has probable cause to do so. State v. Bailey, 410 So.2d 1123 (La.1982). In the immediate case it is clear that the agents were merely taking precautions to insure a thorough investigation and an accurate report.

During the first two days of the investigation, the agents received the following information from several persons: shots were fired after dark at approximately 6:10 p.m.; Blood was seen leaving the field a few minutes after the shooting; Blood uses a 30-06 rifle; Blood fired five shots at a buck that evening; and, two illegal deer were found shot, apparently with a 30-06 rifle, and dead in the same locale. Although this was sufficient evidence to support probable cause for the arrest of Blood, the agents felt they should investigate further since some of this information was inconsistent with Blood’s account of what transpired that evening. We find the agents’ further investigation of this offense reflects their good faith rather than malice.

Blood further contends that no additional evidence was gathered during the 2lk months following the incident. This allegation is unsupported by the record. Agent Broussard testified that it was during this period of time that he got signed statements from the witnesses and consulted with the District Attorney. He wanted to present the statements to the District Attorney and complete his report before making the arrest. In its reasons for judgment, the trial court stated:

“... Apparently because of the press of business, the investigation was continuing and charges were not filed until January ⅛, 1982. During the time of the investigation before charges were filed, the District Attorney, Mr. J. William Pucheu, was consulted by Lt. John Broussard wherein he was informed if he would get the names of the witnesses and statements that charges should be filed, Mr. Blood would be prosecuted.

The District Attorney testified that he had two sessions with Agent Broussard regarding this case. He did not evaluate the case nor make a determination as to probable cause until Agent Broussard presented the signed statements and his report. The report was not completed until some time in February.

For the foregoing reasons, we affirm the judgment of the trial court. All costs of this appeal are assessed to appellant, Roger D. Blood.

AFFIRMED.


author: DOUCET, Judge.

text:
    Newton L. COLLINS, Plaintiff-Appellee, v. Pearley L. COLLINS, Defendant-Appellant.
    No. 83-1019.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 7, 1984.

      Rivers & Beck, Robert L. Beck, Jr., Alexandria, for defendant-appellant.
    Robert L. Kennedy, Colfax, for plaintiff-appellee.
    Before FORET, DOUCET and KNOLL, JJ.
   DOUCET, Judge.

This is an appeal from an amended judgment of separation denying alimony pen-dente lite and finding mutual fault.

On January 19, 1983, after more than thirty years of marriage, Newton Collins filed a Petition for Separation based on cruel treatment. Pearley Collins answered and filed a Reconventional Demand alleging cruel treatment and abandonment, and seeking alimony pendente lite.

After a hearing Pearley Collins was granted alimony pendente lite in the amount of $400.00 per month. On motion of Newton Collins, this award was terminated on July 28, 1983. The trial judge in his reasons for judgment stated that Mr. Collins’ sole source of income was his Veterans’ benefits in the amount of $2,021.00 per month received due to his blindness, and held that federal law exempts these benefits from awards of alimony pendente lite.

At the trial on the merits, judgment was rendered granting a separation from bed and board to Newton Collins and finding mutual fault.' An amended judgment was signed on September 14, 1983, incorporating the court’s previous judgment denying alimony pendente lite.

Pearley Collins appeals the adverse rulings.

VETERANS BENEFITS

In his reasons for judgment the trial judge found that Mr. Collins had virtually no source of income other than his Veterans’ benefits. He stated that Veterans’ benefits are exempt from awards of alimony pendente lite by the language of the Statute. 38 U.S.C.A. § 3101(a) states with regard to Veterans’ benefits that:

“Payments of benefits due or to become due under any law administered by the Veterans’ Administration shall not be assignable except to the extent specifically authorized by law, and such payments made to, or on account of, a beneficiary shall be exempt from taxation, shall be exempt from the claim of creditors, and shall not be liable to attachment, levy, or seizure by or under any legal or equitable process whatever, either before or after receipt by the beneficiary.”

Based on this language the trial judge concluded that Mrs. Collins is not entitled to an award of alimony pendente lite and terminated the previous award. We disagree.

Under our law, marriage is a civil contract. La.C.C. Art. 86. Its legal effects and consequences are regulated by the laws of the State. La.C.C. Art. 87. One of the consequences of the contract of marriage is the duty to support which one spouse owes another. La.C.C. Art. 119; Hingle v. Hingle, 369 So.2d 271 (La.App. 4th Cir.1979). The legal effects and consequences continue until the marriage is dissolved by death or divorce. “Separation from bed and board does not dissolve the bond of matrimony, since the separated husband and wife are not at liberty to marry again; but it puts an end to their conjugal cohabitation, and to the common concerns, which existed between them.” La.C.C. Art. 136. The right to alimony pendente lite of a needy spouse springs from the duty of support which one spouse owes another until death or divorce ends the marriage. La.C.C. Art. 148; La.C.C. Art. 119; Arceneaux v. Arceneaux, 426 So.2d 745 (La.App. 3rd Cir.1983); O’Pry v. O’Pry, 425 So.2d 986 (La.App. 5th Cir. 1983); Hingle v. Hingle, supra. To deny the obligation to pay alimony pendente lite would be to deny the obligation of spouses to support one another during marriage.

Mr. Collins was obliged to, and did support Mrs. Collins out of his Veterans’ benefits during the time they lived together. His obligation to support her out of whatever income and assets are available to him continues until their marriage is dissolved by divorce.

An award of alimony pendente lite is not an “attachment, levy, or seizure” as contemplated in 38 U.S.C.A. § 3101(a).

“Article 148 alimony provides for judicial enforcement of the husband’s obligation to support her under Arts. 119 and 120. These obligations result from the marriage itself and are not a mere appendage to separation and divorce proceedings. Cortes v. Fleming, 307 So.2d 611 (La.1973), Small v. Small, 173 So.2d 854 (La.App. 4th Cir.1965). The obligations are not ‘debts’ due by the spouses but are simply recognized legal duties to be enforced by the court by means of an alimony order. ‘A right to receive or demand support (or money, in order to afford support) is something other and different than a right to receive and be paid a technical legal debt.’ State v. King, 49 La.Ann. 1503, 22 So. 887 (1897).” Gondrella v. Gondrella, 347 So.2d 938 (La.App. 4th Cir.1977).

The provisions of 38 U.S.C.A. § 3101(a) do not apply to awards of alimony pendente lite. The duty to pay alimony pendente lite does not arise as the result of the judicial process. An award of alimony pendente lite is the legal enforcement of a marital duty rather than a process for the collection of a debt. If no other income is available for the purpose, Mr. Collins must use his Veterans’ benefits for the support of Mrs. Collins when she “has not a sufficient income for maintenance pending suit”. La.C.C. Art. 148. The trial judge erred in discontinuing the previous award of alimony pendente lite.

MUTUAL FAULT

La.C.C. Art. 141 states that “A separation from bed and board shall be granted although both spouses are mutually at fault in causing the separation.” In order to grant a separation based on mutual fault, the trial court must find that the fault of each party would constitute an independent ground for separation under La.C.C. Art. 138. The fault of the parties need not be equal but the fault of each, taken separately, must be sufficient upon which to grant a separation. Harrington v. Campbell, 413 So.2d 297 (La.App. 3rd Cir.1982).

Appellant argues that the trial judge erred in finding mutual fault under the factual circumstances of 'this case. She further contends that the trial record does not show sufficient fault on her part to grant a separation on that basis alone.

Mr. Collins contends that Mrs. Collins was cold to him, showed no affection, was constantly picking fights and bickering, and refused to take him to places he needed to go.

Mrs. Collins and witnesses on her behalf, including her pastor and her daughter by Mr. Collins, testified that Mrs. Collins never raised her voice to Mr. Collins, never fought with him, took care of him, and took him wherever he needed to go. They further testified that Mr. Collins had cursed Mrs. Collins and picked fights with her. In addition, there was testimony to the effect that Mr. Collins was seeing another woman, Hattie Wyndham. Mr. Collins and Ms. Wyndham both testified that she took him places out of charity when his wife refused to do so. It was stated that the relationship went no further than friendship.

The trial judge, after hearing all the testimony, found mutual fault. In divorce and separation proceedings, the trial court’s factual findings on the issue of fault must be given substantial weight. These findings will not be overturned unless manifestly erroneous. Harrington, supra. Much discretion must be granted to the trial judge in evaluating the weight of the evidence and the credibility of the witnesses. Pearce v. Pearce, 348 So.2d 75 (La.1977).

In view of the unique position of the trial judge with regard to the testimony given, we cannot find that the factual findings made at the trial court level are manifestly erroneous.

For the above reasons we rule as follows:

The judgment of the trial court with regard to alimony pendente lite is reversed. The previous award of alimony in the amount of $400.00 per month is reinstated.

That portion of the judgment finding the parties mutually at fault is affirmed.

Each party shall bear his or her own costs of appeal.

REVERSED IN PART; AFFIRMED IN PART.


text:
    Raynor JUNEAU and Janice Juneau, Individually and on Behalf of Their Minor Child, Rushing Juneau, Plaintiffs-Appellees, v. The HARTFORD INSURANCE COMPANY, et al., Defendants-Appellants.
    No. 83-1048.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 7, 1984.
    Writ Denied Dec. 14,1984.

      H.B. Gist, Jr., and Charles Lacroix, Alexandria, for defendants-appellants.
    David Townsend, Bunkie, for plaintiffs-appellees.
    Frederick B. Alexius, Alexandria, for defendants-appellees.
    Before GUIDRY, CUTRER and YEL-VERTON, JJ.
   YELVERTON, Judge.

Plaintiffs, Raynor and Janice Juneau, individually and on behalf of their minor son, Rushing Jon Juneau, appeal a ruling maintaining an exception of prescription in a medical malpractice suit. Appellants sued Dr. Judith Buckley, a radiologist, Dr. Carl Jory, a general practitioner, and St. Francis Cabrini Hospital of Alexandria, for damages resulting from medical malpractice, arising out of the premature birth by Caesarean section of the baby Rushing Juneau on January 8, 1981. Jory and Cabrini filed exceptions of liberative prescription of one year, and the trial court maintained the exceptions, dismissing the suits against them. We affirm.

The prescription facts are not disputed, only the law applicable to those facts. Janice Juneau became pregnant in 1980. Her doctor, Carl Jory, thinking she might be due earlier than first thought, sent his patient to Cabrini Hospital where a sonogram test was made on January 6, 1981. This test, designed to determine the age of the fetus, was administered by hospital personnel, interpreted by Dr. Buckley, and acted upon by Dr. Jory, who took the baby by Caesarean section on January 8, because the test result indicated the baby was full term and ready to be born.

The baby boy was premature. He had resulting serious respiratory problems, and was a patient in the neonatal intensive care unit of Cabrini from the date of his birth until April 10, 1981.

These events were the basis of the later filed malpractice claims and suits. It was a factual finding of the trial court, not contested on appeal, that the Juneaus knew of the alleged malpractice by the time the baby was released from the hospital on April 10, 1981, and that this date started the running of prescription.

On January 7, 1982, the Juneaus filed a complaint under the Medical Malpractice Act, LSA-R.S. 40:1299.41-48, with the commissioner of insurance requesting a medical review panel to review the actions of the two doctors and the hospital. By letter dated four days later, January 11,1982, the commissioner advised the Juneaus’ attorney that Jory and Cabrini were not “qualified” under the act, but that Buckley was, and that a medical review panel was being formed to review her actions. This panel was formed on May 31, 1982, and reached its decision on September 29, 1982.

A suit against Buckley was filed on December 10, 1982. It was not until July 6, 1983, that plaintiffs filed suit against Jory and Cabrini, which was done by amending petition alleging these two defendants were solidary obligors with Buckley.

The suit against Buckley was timely filed under the provisions of the Medical Malpractice Act, R.S. 40:1299.47(A)(2), as amended by Act 791 of 1981, and nobody questions the timeliness of that suit. What is at issue is the timeliness of the addition of Jory and Cabrini, who were not subject to the Louisiana Malpractice Act, and who were not sued until more than one year had passed since prescription began to run.

On these facts the Juneaus contend that the trial judge was wrong in finding that their suit against Jory and Cabrini- had prescribed. Appellants argue that their amending suit naming these defendants as joint tort-feasors liable in solido places the case squarely under La.Civil Code art. 2097, which says:

“A suit brought against one of the debtors in solido interrupts prescription with regard to all.”

Thus, appellants rest on the simple argument that, their suit against Buckley having been timely filed, there was an interruption of prescription as to the other soli-dary obligors.

The trial judge held that the suit against Buckley did not save the others from prescription. He reasoned that this suit could not have had the effect of interrupting prescription that had already run on the claim against Jory and Cabrini, because prescription, once accrued, cannot be interrupted.

We agree with the trial court. The prescription applicable in medical malpractice cases is provided by LSA-R.S. 9:5628(A), as follows:

“A. No action for damages for injury or death against any physician, chiropractor, dentist, or hospital duly licensed under the laws of this state, whether based upon tort, or breach of contract, or otherwise, arising out of patient care shall be brought unless filed within one year from the date of the alleged act, omission or neglect, or within one year from the date of discovery of the alleged act, omission or neglect; provided, however, that even as to claims filed within one year from the date of such discovery, in all events such claims must be filed at the latest within a period of three years from the date of the alleged act, omission or neglect.”

Prescription began to run against Jory and Cabrini on April 10, 1981, the date of discovery of the alleged malpractice. One year later, April 10, 1982, prescription had accrued, unless something happened in the meantime to suspend or interrupt the running of it.

Two things happened during that year: On January 7, 1982, plaintiffs filed a claim against both doctors and the hospital asking for a medical review; and on January 11, 1982, plaintiffs were notified that Jory and Cabrini were not “qualified.” Neither of these events suspended or interrupted the accrual of prescription in favor of Jory and Cabrini.

The same prescription, of course, began to run on April 10, 1981, on the alleged malpractice of Dr. Buckley, but she was “qualified” under the Medical Malpractice Act; hence, under the Act, the running of prescription was suspended in her case until 90 days after an opinion was rendered by the medical review panel (September 29, 1982). R.S. 40:1299.47(A). The suit against her was filed within that 90 days.

The Medical Malpractice Act provisions in effect at the time of the alleged act of malpractice in the instant case, did not provide for the suspension of the prescription for “non-qualified” health care providers. In fact, the law expressly declared and the courts recognized that a patient’s remedy against a “non-qualified” health care provider would not be affected by the terms and provisions of the Medical Malpractice Act. R.S. 40:1299.41(D). Ferguson v. Lankford, 374 So.2d 1205 (La.1979); Everett v. Goldman, 359 So.2d 1256 (La. 1978). Thus, the Act did not suspend the running of prescription as to Jory and Cabrini.

The Medical Malpractice Law was amended by Acts 791 and 792 of 1981 to provide, in certain cases, for periods of suspension of prescription on claims against “non-qualified” health care providers. However, Act 791 also amended R.S. 40:1299.41(F) to read:

“F. The provisions of this Part do not apply to any act of malpractice which . occurred before September 1, 1975. The provisions of this Part that provide for the suspension and the running of prescription with respect to a health care provider who has not qualified under this Part, but against whom a claim has been filed under this Part, do not apply to any act of malpractice which occurred before September 1, 1981.”

Since the alleged act of malpractice occurred before September 1, 1981, and a claim was filed against both Jory and Cabrini, both “non-qualified” health care providers, under the provisions of the Act, the new suspension provisions do not apply to them. Even if these amendments should be deemed applicable, the period of suspension allowed would not have saved the claims from prescription, as prescription, in any event, would have run months before the suits against Jory and Cabrini were filed.

Appellants' argument that the timely suit against Dr. Buckley interrupted prescription with regard to her solidary obli-gors, is answered by the following language from Ferguson v. Lankford, supra, at p. 1208:

“It would seem to follow logically that, since ‘[ejvery act, which interrupts prescription with regard to one of the creditors in solido avails the other creditor [creditors]’, every interruption with regard to one of the solidary debtors would avail the creditor. The code does not so provide, nor does our jurisprudence. Suit against one debtor bound in solido will interrupt prescription as to the others (as will an acknowledgment). C.C. 2097; R.S. 9:5801. But if one of the acts, described in code or statutes as interrupting prescription running in favor of a debtor, does not occur, there is no interruption. Here there was no suit, in any court, and no acknowledgment.”

The court added:

“In order now to say that a claim, timely filed against health care providers, one ‘qualified’ and one not ‘qualified,’ interrupts prescription running in favor of both, it would be necessary to hold that a proceeding under the Medical Malpractice Act is equivalent to a suit. It is not.
“Suit against one solidary obligor will interrupt prescription as to all; filing a claim under the Medical Malpractice Act will not interrupt prescription against solidary obligors who are not ‘qualified’ under the act.”

That feature of the Medical Malpractice Act addressed in the above two paragraphs has not been changed since Ferguson v. Lankford. Filing a claim under the act will not interrupt prescription against solidary obligors who are not “qualified” under the act. Nothing happened to interrupt prescription before it accrued in favor of Jory and Cabrini. When prescription accrued, the civil obligation was extinguished (Civil Code art. 1758(3)). There was nothing left to interrupt by the later filing of the suit against Dr. Buckley.

The judgment of the trial court dismissing plaintiffs’ demands against Dr. Carl Jory and St. Francis Cabrini Hospital is affirmed, appellants to pay the costs of this appeal.

AFFIRMED. •


text:
    STATE of Louisiana, Plaintiff-Appellee, v. Edwin Troy ARDOIN, Defendant-Appellant.
    No. CR83-1149.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 7, 1984.
    Edward J. Lopez, Opelousas, for defendant-appellant.
    Morgan J. Goudeau, III, Donald Richard, Asst. Dist. Atty., Opelousas, for plaintiff-appellee.
    Before FORET, DOUCET and KNOLL, JJ.
   DOUCET, Judge.

The defendant, Edwin Troy Ardoin, was charged by bill of information with simple burglary, in violation of La.R.S. 14:62. On September 20, 1983, the defendant entered a plea of guilty to the charge of simple burglary. On October 21, 1983, the defendant was sentenced to serve a term of six years at hard labor. Defendant appeals urging in his one assignment of error that the sentence imposed is excessive.

Although defendant perfected one assignment of error into the record, the assignment of error has not been briefed, consequently, it is considered abandoned. State v. Joseph, 425 So.2d 1261 (La.1983). This case will only be reviewed for errors patent on the face of the record. In accord with the mandate of La.C.Cr.P. art. 920, we have inspected the face of the record for errors patent. We find no error. We affirm defendant’s conviction and sentence.

AFFIRMED.