author: SHORTESS, Judge.

text:
    Donald REAM v. DEPARTMENT OF HEALTH AND HUMAN RESOURCES, OFFICE OF HUMAN DEVELOPMENT.
    Nos. 83 CA 1311, 83 CA 1312.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 28, 1984.
    Archie C. Tatford, Jr., New Orleans, for plaintiff-appellant.
    Robert R. Boland, Jr., George F. McGow-in, Baton Rouge, for defendant-appellee.
    Before EDWARDS, SHORTESS and SA-VOIE, JJ.
   SHORTESS, Judge.

This is an appeal by a classified employee from a summary dismissal of his appeal to the State Civil Service Commission (Commission) concerning his job classification and pay.

On February 28,1983, Donald Ream filed an appeal with the Commission concerning his job classification and salary. The facts involved in this appeal are set forth in the Commission’s opinion as follows:

Appellant is employed by the Department of Health and Human Resources as the Regional Administrator of the Orleans Region of the Office of Human Development and is serving with permanent status.
On February 28, 1983, appellant filed an appeal, in proper person, complaining of current and continuing discrimination by his agency in the application of the pay plan. Appellant’s complaint stems from title changes in the Office of Human Development which took place in April of 1981, retroactive to August 27, 1979. Appellant alleges that the Department of Health and Human Resources requested that all of the positions under his direct supervision or administrative authority, with the exception of clerical and paraprofessional positions, be title changed. His position was not title changed; however, a position in a lower classification than his and which he supervised (that incumbered by Brenda Bo-cage) was title changed to a position higher than his. Appellant alleges that he continued to supervise the higher position until January of 1981, when supervision was transferred to his own supervisor. Appellant further alleges that other positions in the agency at the state office level, which were formerly below his classification, were also title changed into a higher classification on the Social Work job ladder. Appellant alleges that his requests to the Department of Health and Human Resources have resulted in no relief. Appellant contends that his agency’s continued refusal to ask for a title change of his position retroactive to August 27, 1979, constitutes discrimination. As relief, appellant seeks equal treatment and also asks that he be title changed to a Social Work Supervisor III level, retroactive to August 27, 1979.
Appellant filed an appeal (Docket No. 2844) in May of 1981 complaining of similar issues; however, he alleges that his appeal is a new appeal based on current and continuing discrimination under Rules 13.10(e) and 13.11(d).
On April 19, 1983, counsel for the ap-pellee filed a Request for Summary Disposition on the grounds that the appeal was untimely filed in that appellant knew or was aware of the actions complained of as early as April or May of 1980; therefore, more than thirty calendar days have passed in contravention of Civil Service Rule 13.12(a)(2) and more than 365 calendar days have passed since the date on which the action complained of occurred, in contravention of Civil Service Rule 13.12(c). Appellee further alleges that the appeal is moot because the appeal filed as Docket No. 2844, containing the same or substantially the same issues and grounds complained of in the current appeal, was summarily dismissed on January 28, 1983, by the Commission. Finally, counsel argues that appellant failed to allege the charge of discrimination with sufficient specificity under Civil Service Rule 13.11(d).
A public hearing was held before the Commission in New Orleans on May 4, 1983, limited to a consideration of the Request for Summary Disposition.
CONCLUSIONS OF LAW
An examination of the appeal documents indicates that the Request for Summary Disposition is good and shall be granted. Appellant is appealing the fact that a title change for his position was not requested by the Department of Health and Human Resources in April 1981 and has not been requested since. He became aware of this exclusion at that time and indicated that he had been, in fact, attempting to get his title change handled without success. He therefore, had knowledge that he was not included in approximately May of 1981 and is woefully beyond the thirty days allowed by Civil Service rules to perfect an appeal on an incident that he learned about in May of 1981. In any event, this appeal is absolutely barred by Civil Service Rule 13.12(c), which reads as follows:
“(c) No appeal shall lie against any action following the expiration of three hundred sixty-five (365) calendar days from the date on which it occurred.”
Appellant argues that because the action is continuing, his appeal should be deemed timely. This argument is without merit. The consequences of any action are continuing until such time as the action is rescinded or reversed. Nonetheless, Civil Service Rule 13.12 requires that appeals be filed within a specified period of time after the employee became aware of the action complained of.
Additionally, this appeal is almost identical to appellant’s previous appeal (Docket No. 2844) in which an opinion was rendered on January 28, 1983.
The Request for Summary Disposition is granted and the appeal is dismissed.

This court, in Ream v. Department of Health and Human Resources Office of Human Development, Docket No. 83 CM 1191, in an opinion not designated for publication, dismissed appellant’s earlier appeal on the grounds that it was untimely. Both the earlier appeal and instant appeal stem from the same allegations of discrimination relative to job classification and pay.

The instant appeal alleged essentially the same facts as alleged in the earlier appeal but in greater detail, and it contended that same was based on concurrent and continuing discrimination. Appellant further contended in this appeal that the agency’s refusal to seek a title change for his position retroactive to August 27, 1979, constituted discrimination. He further requested that his job title be changed to Social Work Supervisor III retroactive to that date.

On April 19, 1983, the agency filed a request for summary dismissal on the grounds that the appeal was not filed timely and that it was moot because of the action taken in the earlier appeal, and that appellant failed to allege the charge of discrimination with sufficient specificity. A hearing was held before the Commission on May 4, 1983, limited to the request for summary disposition. On August 5, 1983, the Commission granted the request for summary disposition and dismissed the appeal. The Commission found that appellant had knowledge of the pertinent facts in May, 1981, and that his appeal was not filed within 365 calendar days provided for by Civil Service Rule 13.12(c).

We find that the Commission’s ruling as quoted hereinabove correctly sets forth the facts and the law applicable to this case. It's decision is affirmed at appellant’s costs.

AFFIRMED.


source: Caselaw Access Project

author: JOHN S. COVINGTON, Judge Pro Tern.

license: Public Domain

text:
    Paul J. METZLER v. RISING T RACING STABLES and Robert Harvey. Paul J. METZLER v. RISING T RACING STABLES and Robert Harvey. RISING T STABLES, INC. v. Mr. & Mrs. Paul J. METZLER.
    Nos. 83 CA 1363 to 83 CA 1365.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 28, 1984.

      Paul Metzler, in pro. per.
    William V. Courtney, Covington, for defendants, appellees in Nos. 83 CA 1363 and 83 CA 1364 and for plaintiffs-appellees in No. 83 CA 1365.
    Before GROVER L. COVINGTON, C.J., and LOTTINGER and JOHN S. COVING-TON , JJ.

       Judge John S. Covington of the 19th Judicial District Court has been duly elected to this court; that term begins on January 1, 1985. In the interim, the Supreme Court has appointed him to this court pro tempore.

   JOHN S. COVINGTON, Judge Pro Tern.

This litigation involves three consolidated suits relating to a predial lease of an eight acre horse farm in St. Tammany Parish. Paul J. Metzler (Metzler), owner-lessor, filed a petition for writ of injunction (Docket # CA-83-1363 of this Court) on August-24, 1981; a temporary restraining order was issued August 26, 1981 and a show cause hearing set for October 13, 1981 on the requested preliminary injunction. Rising T Racing Stables, Inc. (Rising T) and Robert Harvey (Harvey), defendants-lessees, on September 2, 1981, filed a petition for a concursus in the suit for injunction and deposited the rent for August and September, 1981, amounting to $1,110, into the Registry of the Court.

On September 16, 1981 Metzler filed a rule to evict tenant (Docket # CA 83 1364 of this Court). On October 9, 1981 Rising T and Harvey filed a peremptory exception to the rule, scheduled for October 13, 1981. Defendants in the eviction suit also filed an answer to rule to evict on October 12, 1981.

On October 7, 1981, Rising T. and Harvey filed its own petition for injunction to prevent eviction until deposit returned in Metzler’s initial suit for injunction and the rule to show cause was also scheduled for hearing on October 13, 1981.

On October 13, 1981 Rising T filed suit against Metzler for damages based on breach of contract; Metzler reconvened, also seeking damages for breach of contract. (Docket # CA 83 1365 of this Court).

Before the rule in CA 83 1363, Metzler’s injunction suit, could be heard improvements made on the farm by Rising T were actually removed from the leased premises, thus the rule was dismissed. Before Metz-ler’s rule to evict and Rising T’s rule for injunction to prevent eviction (in CA 83 1364 and CA 83 1363 respectively) could be heard, Rising T vacated the leased premises on June 18, 1982.

On December 22, 1981 Judges John W. Greene and James Strain granted Metzler’s motion for consolidation of the three separate law suits. The suits were tried before Judge Greene on two separate days, namely November 3, 1982 and January 5, 1983.

The trial judge took the matter under advisement and on April 28, 1983 he rendered detailed Reasons for Judgment. He concluded that the eviction suit was rendered moot by Rising T and Harvey having vacated the leased premises on June 18, 1982 and Metzler’s suit seeking an injunction prohibiting the removal of improvements consisting of additions and structures had been dismissed on Metzler’s motion without prejudice.

The court’s Reasons for Judgment were addressed to the suit for breach of contract initiated by Rising T and Harvey and Metz-ler’s reconventional demand, the Court stating “the issues in this suit [Docket # CA 83 1365] are still viable.” Bracketed material supplied.

One judgment was rendered in the three consolidated cases and signed on May 12, 1983. The court granted judgment in favor of Rising T against Paul Metzler and Mary Ann Metzler in the amount of $28,231.33 in the main demand and granted judgment in favor of Paul Metzler and Mary Ann Metz-ler against Rising T and Robert Harvey jointly and in solido in the amount of $10,-957.41 in their reconventional demand. The judgment further ordered that funds deposited by Rising T and Harvey into the Registry of the Court be released to Rising T and credited against the $28,231.33 awarded Rising T .

Metzler timely filed an application for new trial. It was denied and Metzler filed a timely application for suspensive appeal. Rising T and Harvey neither appealed the May 12, 1983 judgment nor answered Metz-ler’s appeal.

JUDGMENT

Of the $28,321.33 awarded Rising T and Harvey, $24,655.33 represented loans to Metzler by Rising T and Harvey, $2,500 represented interest payments made to Metzler to pay interest on his Production Credit Association (PCA) second mortgage loan, and $1,056 represented the deposit posted with the real estate agency in connection with the Agreement to Purchase or Sell and withdrawn by Metzler with Rising T’s and Harvey’s permission. Of the $10,-957.41 awarded Metzler, $85 was for labor costs expended in reconstructing a fence, $764 was for estimated cost of repairs to the dwelling house, $754.61 was to replace carpet, mirrors, and a stove broken or ruined, and $133.80 was for cleaning carpets and repairing the trash compactor. The Court did not allow anything for the dismantled and removed improvements consisting of a pole barn, wooden fences, and a horse walker placed on the leased premises by Rising T and Harvey. Rising T’s demand to be reimbursed the costs of constructing a road and excavating a stock pond and cultivating raw acreage to make it pasture land was denied.

Court costs were assessed against plaintiffs and defendants equally.

FACTS

Testimony and documentary evidence established that Rising T made a formal offer on April 21, 1980 to purchase Metzler’s eight acres and improvements on or before June 1,1981 for $119,000 provided Rising T could secure a mortgage loan “at a rate of interest not to exceed 14% per annum, interest and principal payable over a period of not less than 25 years” and provided further that “purchaser will pay discount points not to exceed 2% percent of the mortgage approved for the purchase of subject property.” The agreement to Purchase or Sell, accepted by Metzler on April 21, 1980 called for “occupancy/possession as leasee (sic) 5/1/80, as owner 6/1/81” and referred to “attached lease” on the same line of the Agreement to Purchase or Sell. The attached document was styled “Lease for Use with Agreement or Option to Purchase” and provided the term of the lease to be from May 1, 1980 through May 31, 1980; the monthly rental of $500, payable in advance on the first of each month, was fixed for the duration of the lease. The Agreement to Purchase or Sell contained the handwritten stipulation that the purchaser “be allowed to make improvements to property.” The lease provided that “any additions made to the property by the Lessee shall become the property of Lessor at the termination of this lease unless the property is purchased by the Lessee.”

By letter dated May 15, 1981, Rising T and Harvey informed Metzler that “since I have been unable to obtain financing under the terms of the contract, the sale will not be possible” and that “I am agreeable to continue to lease this property” on the basis of a stated preference of “a month to month renewable lease.”

Between May 15, 1981 and around the first of June, 1981 Metzler and Harvey met with Production Credit Association’s (PCA) manager and an agreement was reached that if Metzler paid $5,000 to PCA every three months until the quarterly payments on the PCA second mortgage totaled $40,-000 PCA would refrain from foreclosing. Harvey agreed to fund the quarterly payments of $5,000 each and continued to pay Metzler’s interest payments on the PCA mortgage in addition to the monthly rental and insurance. Interest payments by Harvey totaled $2,500.

TRIAL COURT

The trial judge, after reciting the narrative of facts set out above observed in his Written Reasons for Judgment that:

“There is a dispute concerning the classification of these payments. The record establishes that these interest payments made by plaintiff [Rising T] were not intended to be added rent. These interest payments were made by plaintiff in an attempt to alleviate defendants’ [Metzlers’j financial predicament and were intended by plaintiff to be applied to the purchase price.” P. 4.

The Judge also found as a fact that Metzler admitted in his testimony that he owed Rising T and Harvey $24,675.33, loaned in anticipation of purchasing the subject property. The lower court also found as a fact that on August 24, 1981 Metzler notified Harvey to vacate the premises but the request was not honored so on November 5, 1981 Metzler informed Rising T and Mr. and Mrs. Harvey that the monthly rental would be raised to $1,000 per month effective December 1,1981. After the August rental cheek was returned to Metzler with the notation “insufficient funds” Rising T and Harvey paid the rental into the Registry of the Court at the rate which had been paid through July 1, 1981, i.e., $500 plus $55 for insurance.

The fact finder then concluded:
“Testimony establishes that both Mr. Harvey and Mr. Metzler understood clearly that this lease, after termination of the primary period, would be on a month to month basis. ... Accordingly, there was no reconduction of this predial lease.
“Therefore, this Court finds that Mr. Metzler had the authority to raise the rent to $1,000 per month effective December 1, 1981. Since Mr. Harvey and Rising T ... vacated the leased premises on June 18, 1982, the amount of rent owed by the plaintiffs must be calculated at $1,000 per month from December 1, 1981 through July 1, 1982. Plaintiffs must be given credit for the amounts paid into the Registry of the Court to be applied against that amount of rent owed.” P. 6.

ASSIGNMENTS OF ERROR

Metzler, defendant-appellant, assigns as errors committed by the trial court its conclusions that: (1) the monthly rental for the period of December 1, 1981 through July 1, 1982 was $1,000 rather than $1,055 as defendant-appellant contends, (2) Metzler, who unsuccessfully sought an injunction prohibiting Rising T and Harvey from dismantling and removing improvements placed on the acreage with his permission, was not entitled to their value because the May 1, 1980 through May 31, 1981 lease, renewed on a month to month basis, authorized lessees’ dismantling and removal before the termination of the lease; (3) interest payments made by Harvey to Metzler were loans rather than additional rental, and (4) Harvey was entitled to a return of the $1,056 deposit as a separate item of damages because that amount was included in the $24,675.33 the court found had been loaned to Metzler by Harvey.

ISSUES

1. Was the lease of the acreage recon-ducted for a term of an additional year?

2. Did Rising T and Harvey have the right to dismantle and remove the barn, fences, and horse walker installed on the acreage with the lessor’s permission?

RECONDUCTION

The judge reasoned that the leased acreage was a farm and the lease was a predial lease governed by C.C. arts 2676 and 2688. Quoting from Ashton Realty Company v. Prowell, 165 La. 328, 115 So. 579 (1928) and relying further on Regan v. Carr, 343 So.2d 1125 (La.App. 3rd Cir.1977) and Eames v. Goodwin, 337 So.2d 909 (La.App. 3rd Cir.1976), and applying the principles stated in the codal authority and jurisprudence cited, he concluded “there was no reconduction of this predial lease.” We hold that his analysis of the facts and his application of the legal principles applicable to those facts are amply supported by the record.

This court in 1963 clarified the confusion created by earlier case law by holding that a reconducted lease is a new lease, not an extended one, a distinction which is of the utmost importance here because if there had been merely an extension of the original lease, lessees would have been clearly entitled to undisturbed possession for the year commencing June 1, 1981 and ending May 31,1982 (Sharpe v. Jenkins, 150 So.2d 353 [La.App. 1st Cir.1963]) without any increase in the $500 monthly rental for that year. Dinkins v. Broussard, 190 So.2d 496 (La.App. 1st Cir.1966); C.C. art. 2688.

The extra $55 per month which Metzler, the appellant, would have us award as additional rental for the period December 1, 1981 through July 1, 1982 is not supported by the record. From the inception of the lease, Rising T and Harvey verbally obligated themselves to pay Metz-ler an additional sum, first $40 per month and later $55 per month, so that Metzler could pay the insurance premium on the dwelling and appurtenant structures. A new lease, on a month to month basis, came into being on June 1, 1981; Metzler did not establish to the satisfaction of the trial court, nor does he convince us, that the new lease, only verbal, obligated Rising T and Harvey to continue paying the sum representing insurance premiums. Accordingly, Metzler’s first assignment of error is without merit.

IMPROVEMENTS BY LESSEE

The district court denied Metzler’s claim that he was entitled to the value of the pole barn, fences, and horse walker constructed on the acreage by Rising T and Harvey, reasoning that “there was no prohibition in the lease against plaintiffs demolishing any improvements they constructed on the leased premises” and “the evidence ... does not establish when these improvements were removed from the leased premises by plaintiffs”. Because Metzler did not satisfy the legal requirement of proving that the enumerated “improvements which were constructed by plaintiffs were on the leased premises at the termination of this lease” the stipulation in the lease that “any additions made to the property by the Lessee shall become the property of the Lessor at the termination of this lease unless the property is purchased by the Lessee” never became operative. Therefore, Rising T and Harvey were the owners of the improvements and the law permitted them to remove their improvements before they vacated the leased premises of their own volition on June 18, 1981 unless removal of the improvements caused substantial damage to themselves or to the immovable to which they were attached. C.C. arts. 465, 466, 493, and 495; National Companies v. Bridgewater, 398 So.2d 29 (La.App. 4th Cir.1981); Simmons v. Board of Commissioners for the Port of New Orleans, 442 So.2d 836 (La.App. 4th Cir.1983); and Pendleton v. Shell Oil Co., 408 So.2d 1341, (La.1982).

In Pendleton, supra, the lease of plaintiff’s land, contained a provision that improvements constructed by Shell “shall become Lessor’s property at the termination of this lease.” Reasoning that the termination of the old lease by mutual agreement and the entering into a new lease between the same parties continued in Shell the ownership of the old service station constructed by Shell during the term of the old lease, the Supreme Court concluded that “inasmuch as Shell owned the building with a right to make any alterations and without any prohibition against demolishing it, coupled with an unlimited right to use the property for any lawful purpose, we do not consider that Shell breached the lease by demolishing the old service station...” 408 So.2d 1341, 1343.

The predial lease between Metzler, owner-lessor, and Rising T and Harvey, lessees, terminated on May 31, 1981. A new lease, on a month to month basis, took the place of the lapsed lease. Pendleton, supra, Simmons, supra, and C.C. arts. 2726, 465, 466, 493, and 495 are the legal authority, taken in combination and with the original thirteen month written lease, for Rising T’s and Harvey’s having dismantled and removed the pole bar, fences, and horse walker. Accordingly, Metzler-appellant’s second assignment of error is without merit.

INTEREST PAYMENTS

Our analysis of the record in this matter fails to disclose error in the holding that five monthly interest payments on Metzler’s PCA second mortgage loan constituted a loan rather than additional rental. The record as a whole supports the trial court’s finding on that point. Therefore, Metzler-appellant’s third assignment of error is without merit.

SECURITY DEPOSIT

The district court did not award to Rising T and Harvey the $1,056 deposit, made in conjunction with the Agreement to Purchase or Sell, but once. The record does not support Metzler-appellant’s argument that the deposit was awarded as an item of damages more than once.

FINDINGS OF FACT BY TRIAL COURT

Unless the trier of fact, whether trial judge or jury, is manifestly erroneous in its factual findings significant to the outcome of the suit, appellate courts should not disturb them. This principle is especially true when the trier of fact has had the opportunity to observe and evaluate the credibility of the witnesses as he did in this case. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978); Canter v. Koehring Company, 283 So.2d 716 (1973). We do not disturb the factual findings and conclusions of law because they clearly are not manifestly erroneous.

All costs of this appeal are cast against appellants Metzler.

AFFIRMED.

      . Although the Reasons for Judgment refer to plural plaintiffs and defendants, the judgment refers to only one plaintiff, Rising T. Rising T and Harvey were made "defendants-in-recon-vention" by appellant. As Harvey was not a defendant in the main demand, this designation is erroneous. However, the third party defendant, Harvey, has made no objection and filed an answer to the "reconventional demand.” Under our doctrine of fact pleading and considering the subsequent actions of Harvey, he is properly treated as a defendant.

       The date May 31, 1980 is designated on the face of the lease as the termination date; the documentary evidence and testimony supports the lower court’s finding that the lease term was May 1, 1980 through May 31, 1981.


text:
    A.W. HAMMONS, et al. v. PARISH OF EAST BATON ROUGE, DEPT. OF PUBLIC WORKS, PERMIT DIVISION and Board of Adjustments.
    No. 83 CA 1389.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 28, 1984.

      Joel Dickinson, Baton Rouge, for plaintiffs-appellants.
    A. Foster Sanders, III, Baton Rouge, for defendant-appellee.
    Before GROVER L. COVINGTON, C.J., and LOTTINGER and JOHN S. COVING-TON , JJ.

       Judge John S. Covington of the 19th Judicial District Court has been duly elected to this court; that term begins on January 1, 1985. In the interim, the Supreme Court has appointed him to this court pro tempore.

   JOHN S. COVINGTON, Judge Pro Tern.

Plaintiffs, four individuals purportedly constituting a committee representing a majority of the residents of a Baton Rouge subdivision, appeal the trial court’s denial of their petition for a preliminary injunction. They sued to enjoin the Board of Adjustment of the City-Parish of East Baton Rouge (Board) from continuing to issue permits allowing the placement of trailers, or mobile homes, on lots in plaintiffs’ subdivision, on the grounds that pre-existing subdivision building restrictions prohibit such placement.

The broad issue is whether the trial court abused its discretion in denying plaintiffs’ request for a preliminary injunction.

We affirm.

In his Reasons for Judgment, the trial judge referred to a section of the Code of Ordinances for the City of Baton Rouge and the Parish of East Baton Rouge in making conclusions regarding the Board’s authority and responsibility when issuing permits as alleged. In brief on appeal, the Board also cites the ordinance in support of its arguments.

We are unable to consider the ordinance on review as it was never introduced into evidence, nor was any proof made that it has been filed with the Clerk of Court. We cannot take judicial cognizance of the ordinance cited. LSA-R.S. 13:3712(B); Patin v. Industrial Enterprises, Inc., 421 So.2d 362 (La.App. 1st Cir.1982), writ denied 423 So.2d 1166 (1982); Hudson v. City of Baton Rouge, 372 So.2d 1240 (La.App. 1st Cir.1979). However, we do not find reference to the ordinance necessary to resolution of this case.

It is undisputed that pre-existing restrictions affecting the subdivision in question prohibit the use of trailers as residences on subdivision property, for which purpose the Board, on occasion, allegedly grants permits to individual landowners. Plaintiffs seek to enjoin the Board from issuing any such permits in the future.

Landowners whose property benefits from valid building restrictions are entitled to enjoy those rights without interference from others, and may bring injunctive proceedings for their protection and enforcement against any violator or attempted violator. Salerno v. De Lucca, 211 La. 659, 30 So.2d 678 (1947); Camelot Citizens Association v. Stevens, 329 So.2d 847 (La.App. 1st Cir.1976), writ denied 333 So.2d 242 (La.1976); A.N. Yiannopoulos, Civil Law Predial Servitudes, § 194. Plaintiffs argue that injunctive relief is proper under these circumstances because the Board, in granting permits as alleged, ‘violates’ the subdivision restrictions.

This argument is without merit. It is well established that municipal zoning ordinances neither terminate nor supersede pre-existing building restrictions. Alfortish v. Wagner, 200 La. 198, 7 So.2d 708 (1942); Cabibi v. Jones, 391 So.2d 461 (La.App. 4th Cir.1980); Hargroder v. City of Eunice, 341 So.2d 463 (La.App. 3rd Cir.1977), writ denied 344 So.2d 378 (La.1977); 101(A) C.J.S., Zoning and Planning, § 114. While the Board may possess the legal authority to waive City-Parish zoning requirements, it clearly lacks the power to waive valid, pre-existing building restrictions. Thus, the actions of the Board complained of do not constitute violations of restrictions entitling plaintiffs to injunctive relief. The trial court correctly noted in his reasons for judgment that plaintiffs’ remedy lies not against the Board but against those individuals who, whether they have received permits waiving zoning restraints from the Board or not, in fact attempt to violate subdivision restrictions by using trailers as residences on subdivision property.

The issuance of a preliminary injunction addresses itself to the sound discretion of the trial court, although that discretion is reviewable if abused. Schwegmann Brothers Giant Supermarkets v. Louisiana Milk Commission, 290 So.2d 312 (La.1974). The applicant for a preliminary injunction has the burden of making a prima facie showing that he will prevail on the merits of the case-i.e., that he will be entitled to issuance of a permanent injunction. GMAC v. Daniels, 377 So.2d 346 (La.1979).

In the present case, the trial judge correctly ruled that the plaintiffs had failed to make a prima facie showing that they would prevail on the merits of the case. We find no error in his ruling denying plaintiffs’ request for a preliminary injunction.

Accordingly, for the reasons assigned, the judgment appealed from is affirmed at plaintiffs’ costs.

AFFIRMED.

      . Plaintiffs also petitioned the trial court to revoke permits allegedly issued previously by the Board to four named individuals, but that portion of their petition was dismissed when the court sustained defendants’ peremptory exception of non-joinder of an indispensable party.

      . Assuming, of course, that plaintiffs are able to prove the requisite standing, as well as the validity and continuing efficacy of the restrictions.


author: GROVER L. COVINGTON, Chief Judge.

text:
    N.R. BROUSSARD, et al. v. COMMISSION ON ETHICS FOR PUBLIC EMPLOYEES.
    No. CA 83 1393.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 28, 1984.

      Charles Sonnier, Abbeville, for plaintiffs-appellants.
    R. Gray Sexton and Peter G. Wright, Baton Rouge, for defendant-appellee.
    Before GROVER L. COVINGTON, C.J., and LOTTINGER and JOHN S. COVING-TON, JJ.

       Judge John S. Covington of the 19th Judicial District Court has been duly elected to this court; that term begins on January 1, 1985. In the interim, the Supreme Court has appointed him to this court pro tempore.

   GROVER L. COVINGTON, Chief Judge.

N.R. Broussard, Sr. and Broussard Brothers, Inc. have appealed from the decision of the Commission on' Ethics for Public Employees (the Ethics Commission) which held that N.R. Broussard, Sr. had violated Section 1111 C(2)(d) of the Code of Governmental Ethics and that Broussard Brothers, Inc. had violated Section 1113 B of the Code. In the decision, the Commission concluded that Mr. Broussard had not violated Section 1112 B(5) of the Code. No penalty was imposed on Mr. Broussard, but the maximum fine of $5,000 was imposed on Broussard Brothers, with all but $1000 of the fine suspended. The execution of the judgment was stayed pending this appeal. We affirm.

On June 21, 1982, the Commission on Ethics for Public Employees received a letter suggesting that N.R. Broussard, Sr., a member of the Abbeville Harbor and Terminal District Commission (the Harbor Commission) had participated at that Commission’s June 15, 1982 meeting in consideration of various bid proposals to do certain work for the Harbor Commission. This letter also suggested that one of the bidders on this contract, Swampland Enterprises, Inc., was in debt to Mr. Broussard. This correspondence did not meet the requirements for formal complaints contained in Section 1141 A(l) of the Code, and it was not treated as such by the Ethics Commission.

Prior to referring this matter to a formal investigation, the Ethics Commission instructed its staff to conduct a “fact-finding” investigation, which it did. In addition to obtaining information relative to the allegations contained in the initial letter, the staff observed that equipment belonging to Broussard Brothers, Inc. (Broussard Brothers) was performing work on the Harbor Commission site. The staff received information that this equipment was on the site because Broussard Brothers was performing subcontract work for the contractor, Coastal Contractors, Inc.

Based on the “fact-finding” report, the Ethics Commission adopted a resolution directing its staff to formally investigate possible violations of the Ethics Code by N.R. Broussard, Sr. and/or Broussard Brothers, Inc., as follows:

(1) that Mr. N.R. Broussard, Sr. may have violated Section 1112 B(5) of the Code of Governmental Ethics (LSA-R.S. 42:1112 B(5)) by having participated in a June 15, 1982 meeting of the Abbeville Harbor and Terminal District Commission, at which meeting a bid submitted by Swampland Enterprises, which company leases property from Mr. N.R. Brous-sard, Sr. [through Broussard Brothers, Inc.,] and by virtue of said lease owes N.R. Broussard, Sr. a thing of economic value, was considered;
(2) that Mr. N.R. Broussard, Sr. or Broussard Brothers, Inc. may have violated Section 1113 B of the Code of Governmental Ethics (LSA-R.S. 42:1113 B) by having bid on and entered into in a subcontract under the supervision and jurisdiction of the Abbeville Harbor and Terminal District Commission, specifically, a subcontract between Broussard Brothers, Inc. and Coastal Contractors, Inc., to do river excavation in connection with a contract between the Abbeville Harbor and Terminal District Commission and Coastal Contractors, Inc.; and
(3) that Mr. N.R. Broussard, Sr. may be in violation of Section 1111 C(2)(d) of the Code of Governmental Ethics (LSA-R.S. 1111 C(2)(d)) in that he may have received a thing of economic value from Broussard Brothers, Inc. which, through the subcontract mentioned in Paragraph 2, had a contractual, business, and financial relationship with his agency, the Abbeville Harbor and Terminal District Commission.

By letter of December 7, 1982, counsel for Mr. Broussard requested that the Ethics Commission take no action with respect to this investigation until either he or Mr. Broussard could meet personally with the Commission, or its staff. As a result of this request, Mr. Broussard appeared at a Ethics Commission meeting in executive session on April 8, 1983.

At its May 13, 1983 meeting, the Ethics Commission scheduled a public hearing in order to determine whether N.R. Brous-sard, Sr. or Broussard Brothers had violated various provisions of the Ethics Code. The public hearing was held on July 25, 1983. On September 15, 1983, a written decision concerning this matter was published. In its opinion, the Ethics Commission concluded that Mr. Broussard had not violated the Ethics Code with respect to his participation in the Harbor Commission’s consideration of the Swampland Enterprises, Inc. bids. The Ethics Commission concluded, however, that Broussard Brothers had violated Section 1113 B of the Code by having subcontracted with Coastal Contractors, Inc. on a Harbor Commission project, and that Mr. Broussard had violated Section 1111 C(2)(d) of the Code by having received compensation for services he rendered to Broussard Brothers after it had entered into a contractual, business, and financial relationship with his agency, the Harbor Commission.

Counsel for the Broussards, the appellants, has made ten “Assignments of Error”, which can be summarized in five issues, as follows:

I.

Did the Commission Err in Refusing to Disclose To Appellants the Names of Persons Known to the Commission, But Unknown to Appellants, Who Had Information About the Alleged Violations of the Code of Ethics by Appellants?

Counsel for appellants requested all discoverable documents. The record discloses that the requested information was provided to appellants, including names of all persons shown to have been interviewed by the Ethics Commission relative to the matter.

However, during the course of their appearance before the Ethics Commission, the appellants further requested the particular correspondence which had led to the Commission’s involvement in this matter. This request was denied. This denial forms the basis of this issue.

Section 1141 D(12) of the Ethics Code provides, as follows:

The records of each ethics body prepared or obtained in connection with investigations and private hearings conducted by the ethics body, including all extracts of minutes and resolutions adopted in connection therewith, shall be deemed confidential and privileged, except that such records shall be available to each member of the ethics body upon request. Except as provided in this Paragraph and in R.S. 42:llll(E)(2)(c), all records, including the results and conclusions reached in connection with any investigation or hearing, shall be public. (Emphasis added).

Section 1141 D(12) generally has the effect of making all records relative to Ethics Commission investigatory proceedings confidential, and explicitly provides that these records shall be made available only to members of the ethics body.

In this connection the Commission is required to proceed by investigating such information confidentially. Hence, allegations of violations cannot be made a matter of public record until the Ethics Commission has determined, pursuant to Section 1141B, that there is sufficient information to warrant that the matter be considered at a public hearing. Complaints, whether signed or anonymous, which do not meet the requirements of Section 1141 A do not lead to public disclosure of their having been made, or to any hearing unless investigation shows there is some substance to them.

The appellants further argue that the Commission should have provided this information because it is required by the Ethics Code to enact discovery rules consistent with those used in civil proceedings, and that this evidence would have been discoverable in those proceedings. There is no merit to this argument. Section 1141 D(2), contains a limitation that discovery rules of the Commission shall be consistent with those used in civil proceedings “to the extent and in the manner appropriate to its proceedings.” It is appropriate to its proceedings that records of investigation proceedings be kept confidential.

The appellants also argue that they have been prejudiced by the Commission’s refusal to provide them with the correspondence in question. There is no merit in this argument. The Commission’s resolution of November 23, 1982 specified both the conduct which was the subject of its inquiry and the relevant sections of the Ethics Code. In this connection, the appellants complained that one witness whose testimony led to the investigation and to the subsequent public hearing was not subject to cross-examination by them. This is not a basis for complaint. The appellants were provided with the names of all persons interviewed by the Ethics Commission. It is not required to use all persons it interviews as witnesses as long as it does not deprive the accused of his right to discovery and his use of such persons as his witnesses in the case, if he so chooses. The appellants chose not to depose or use the persons in question as witnesses; such choice was their prerogative.

II

Did the Commission Err by Investigating a Public Servant and Other Persons Without Adoption of a Formal Resolution Authorizing Said Investigation?

The issue raised by the appellants is whether the Ethics Commission has the legal authority to conduct “fact-finding,” as provided in its Rules.

Section 1134 of the Ethics Code provides in pertinent part as follows:

(1) Each ethics body may adopt, amend, repeal, and enforce rules and regulations to carry out the provisions and purposes of this Chapter within its jurisdiction.

Rule 2.2 of the Ethics Commission’s Rules provides as follows:

2.2 Fact-finding.
The Commission may refer to fact-finding any matter warranting Commission consideration including any request for an advisory opinion. When the fact-finding concerns a particular individual or person, the individual or person shall be given written notice prior to commencement of said fact-finding.

The Ethics Commission is authorized by Section 1141 A(2) of the Code, to investigate any matter which comes to its attention which may be a violation of the Ethics Code within its jurisdiction. The Commission in the regular course of business receives correspondence, anonymous and signed, containing information relative to various situations and charges against pub-lie officials, and complaints of conflicts of interest.

Such complaints or information must necessarily be investigated. As part of its investigatory proceedings, the Commission routinely conducts a “fact-finding” in order to verify preliminary the validity of the information or complaint.

As stated, the “fact-finding procedure” was adopted by Rule pursuant to the Code’s provisions concerning rule-making: this procedure is designed to protect public officials and other persons from unwarranted investigations. Moreover, in the instant case, the appellants have not shown how this preliminary “fact-finding” prior to a formal investigation has prejudiced them or deprived them of any rights. There is no merit in this assignment of error.

III.

Does the Code of Ethics Apply to Someone Who is Neither a Public Officer Nor Employee?

The issue of whether persons who are not public officers or public employees are subject to the provisions of the Code of Governmental Ethics was addressed by this Court recently in Anzelmo v. Louisiana Commission on Ethics for Public Employees, 435 So.2d 1082 (La.App. 1st Cir.1983); and we decided that the Code was also applicable to persons other than public servants. One of the issues presented in the Anzelmo case was whether immediate family members of a public servant were subject to Commission jurisdiction with respect to violations of the Ethics Code. In the Anzelmo case, the issue was the application of Section 1113 A of the Code. In the instant case, the issue is the application of Section 1113 B. These provisions provide as follows:

A. No public servant, excluding any legislator and any appointed member of any board or commission, member of such public servant’s immediate family, or legal entity in which he has a controlling interest shall bid on or enter into any contract, subcontract, or other transaction which is under the supervision or jurisdiction of the agency of such public servant.
B. Other than a legislator, no appointed member of any board or commission, member of his immediate family, or legal entity in which he has an economic interest shall bid on or enter into or be in any way interested in any contract, subcontract, or other transaction which is under the supervision or jurisdiction of the agency of such appointed member.

In each of these subsections the prohibitions apply not only to public servants, but also to public servants’ family members and to legal entities in which they have an interest. In the Anzelmo case, this Court concluded that because the constitutional mandate of Article X, Section 21 of the 1974 Constitution directing the Legislature to enact a code of ethics did.not prohibit the Legislature from including “other persons” in the ambit of the Code, the Legislature could constitutionally include such persons.

The Anzelmo Court held that the prohibitions contained in Section 1113 also apply to persons who are not themselves public servants. The Anzelmo case is controlling on this particular issue.

IV.

Did the Commission Commit Manifest Error in its Conclusion that Appellants Violated the Provisions of the Code of Governmental Ethics?

Section 1113 B provides, in pertinent part, that no legal entity in which an appointed member of any board or commission has an economic interest “shall bid on or enter into or be in any way interested in any contract, subcontract, or other transaction which is under the supervision or jurisdiction of the agency of such appointed member.”

The gist of the appellants’ argument on this issue is that Section 1113 B can be construed to prohibit a great number of activities which are not reasonably related to the legislative goal in adopting the Code of Ethics. There is no merit in this argument. The various prohibitions contained in Section 1113 B, which generally addresses the question of public servants, their families, and their companies entering into business transactions with the public servant’s agency, are essential to the Legislature’s goals in enacting the Code. These goals are explicitly stated in Section 1101 B of the Code, as. follows:

It is essential to the proper operation of democratic government that elected officials and public employees be independent and impartial; that governmental decisions and policy be made in the proper channel of the governmental structure; that public office and employment not be used for private gain other than the remuneration provided by law; and that there be public confidence in the integrity of government. The attainment of one or more of these ends is impaired when a conflict exists between the private interests of an elected official or a public employee and his duties as such. The public interest, therefore, requires that the law protect against such conflicts of interest and that it establish appropriate ethical standards with respect to the conduct of elected officials and public employees without creating unnecessary barriers to public service. It is the purpose of this Chapter to implement these policies and objectives.

Examination of this provision of the Ethics Code makes clear that the Code was designed not only to prevent actual abuse and corruption in public office, but also to protect the appearance of integrity of governmental agencies and processes. A prohibition against public servants, their family members, and their companies engaging in business activities under the authority of the public servants’ agencies is germane to the realization of the Legislature’s goals.

Not only is Section 1113 B consistent with the above goals, but its application by the Ethics Commission with respect to the instant case is consistent with these goals. Mr. Broussard is the President, Chairman of the Board, and the owner of 44.6% of Broussard Brothers, Inc. The Ethics Commission’s conclusion that Section 1113 B prohibits Broussard Brothers from entering into subcontracts with the Harbor Commission due to his ownership interest in Broussard Brothers is not only the correct application of Section 1113 B, but is clearly in conformity with the policy and goals of the Ethics Code.

The appellants suggest a violation of Section 1113 B should be found only if the economic interest in the contract occurs at a time at which the board member could influence the action of the public body with respect to that contract as a quid pro quo for the profit to the business entity in which he is interested. The Code does not contain such a limiting provision. There is no merit to this argument.

The amount of compensation paid to Broussard Brothers by Coastal Contractors was dependent to a certain extent on the amount of materials excavated by Brous-sard Brothers, and this amount was determined by the Harbor Commission’s project engineer. In other words, the amount of compensation to be paid to Broussard Brothers was determined by the decision of an employee of the Harbor Commission. This situation is not without the potential for abuse or the appearance of a possible conflict of interest.

Moreover, during the time that Brous-sard Brothers, I'nc. was performing work on the subcontract with Coastal Contractors, N.R. Broussard, Sr. received compensation for services he rendered to Brous-sard Brothers, Inc. in the amount of $14,-300, gross, per month. In effect, the Broussards argue that the absence of evidence of actual abuse and corruption requires the Commission to conclude that a violation of the Code did not occur.

The structure of the Ethics Code as an anti-conflict of interest statute (as opposed to being only an anti-abuse and anti-corruption statute) was clearly intended to result in prohibitions against certain activities whether or not actual abuse or corruption can be demonstrated. Inherent in the conflict of interest approach to the issue of public ethics is the recognition that proof of actual abuse and corruption is difficult at best, and that the prevention of general classes of situations presenting a conflict of interest is the best means of avoiding actual corruption and abuse.

On this point, the appellants argue that the Ethics Commission’s conclusion that Mr. Broussard had violated Section 1111 C(2)(d) was in error since it concluded that his receipt of his usual and customary compensation for services from the corporation in which he is a shareholder was a violation of the Ethics Code.

Essentially, Section 1111 C(2)(d) prohibits public servants from performing services for compensation if the services are performed for, or the compensation is received from, any person from whom the public servant would be prohibited from receiving a gift. Under Section 1115 A of the Code, public servants are prohibited from receiving a gift of a thing of economic value from any person who has or seeks a contractual or other business or financial relationship with the public servant’s agency. Thus, Section 1111 C(2)(d) prohibits public servants from performing work where the work is performed for, or paid for, by such persons.

When a company with which a public servant has had a long-standing employment relationship decides to enter into a contractual relationship with the public servant’s agency, the mere fact that the public servant has previously maintained an employment relationship with that person does not mean that he can continue in that relationship, despite the provisions of the Code.

Mr. Broussard’s argument is that he was simply doing something he had always done by receiving compensation from Broussard Brothers, and that to do something he had customarily done should not be a violation. However, circumstances had changed. Broussard Brothers decided to do something it had not done previously; that is, to enter into a subcontract on a Harbor Commission project. Additionally, Mr. Broussard admitted that he knew about this subcontract before it was actually entered into between Broussard Brothers and Coastal Contractors. It was this new and significant relationship between Broussard Brothers and the Harbor Commission that made Mr. Broussard’s receipt of compensation from Broussard Brothers a violation of the Code. Through the receipt of this compensation, Broussard violated Section 1111 C(2)(d) of the Code.

Even if we were to agree that Mr. Brous-sard’s continued receipt of his salary from a company which was performing a subcontract for Broussard’s governmental entity was not a wrongdoing, his activity does constitute a conflict of interest. The wrongdoing does not have to actually occur for a conflict of interest to exist. A conflict of interest is a situation which would require a public official to serve two masters, presenting a potential of wrongdoing. The public official may not have done any wrong, but a conflict of interest may put him in danger of doing wrong. Glazer v. Commission on Ethics for Public Employees, 431 So.2d 752 (La.1983).

Y.

Is the Code of Governmental Ethics Unconstitutional In its Composition, and Particularly in its Application?

The appellants further contend that the Ethics Code is unconstitutional. Their first point relates to the alleged “double standard” established by the Code. Essentially, this argument refers to the fact that the Code makes various distinctions, in its provisions and procedures, between “elected officials” and “other public employees.” The appellants claim that these distinctions suffer from a “lack of rational or sound legal reasoning,” and that they are thus in violation of the due process and equal protection clauses of the state and federal constitutions. The distinction of which the appellants particularly complain is the requirement that investigations concerning elected officials commence only in response to a sworn complaint, while investigations concerning public employees may commence upon the Commission’s own motion.

To maintain an attack against the distinction drawn by the Ethics Code with respect to the initiation of investigations of elected officials, as opposed to other public servants, the appellants must show that the distinction is without reason. There are important reasons for distinguishing between elected officials and other public servants with respect to the manner in which complaints are initiated. Because of elected officials’ visibility, there exists an opportunity for large numbers of persons outside of their offices to have knowledge of information relative to possible violations of the Code. On the other hand, the actions of public employees and appointed officials are more likely to be subject of the knowledge of only a small circle of interested or affected persons who are likely to fear the consequences of filing a complaint. Because of elected officials’ special vulnerability to attacks against character and personal ethics, it is not unreasonable to require that a person making such charges against such a person be willing to do so in a sworn complaint. Thus, the distinction drawn between elected officials and other public servants with respect to the initiation of ethics body investigations is reasonable and with good reason.

The appellants also contend that the Ethics Code is unconstitutional in that it arbitrarily defines “things of economic value” to include the usual and ordinary salary of a corporate employee as a “gift” so that such application violates Section llllC(2)(d) of the Code, all in derogation of due process, equal protection and the property rights of an individual under the Constitution of Louisiana and the United States.

The Ethics Code does not make the usual and ordinary salary of a corporate employee as a “gift.” Rather, Section 1115 of the Code prohibits public servants from receiving gifts from certain classes of persons. Section 1111 C(2)(d) of the Code prohibits public servants from performing services for compensation if it is received from certain classes of persons. The classes of persons with respect to which the prohibition exists are the same in each case, and Section 1111 C(2)(d) of the Code refers to those classes in Section 1115 of the Code by making reference to that section of the Code. This contention is meritless.

The next constitutionality issue urged by the appellants is that the Ethics Code as a whole in its composition and application is in derogation of various constitutional provisions because of the procedures it contains. We find that this Court has answered this argument contrary to appellants’ position in Commission on Ethics for Public Employees v. IT Corporation, 423 So.2d 695 (La.App. 1st Cir.1982). The other constitutional arguments made by appellants have been considered and found to be totally without merit.

For the foregoing reasons, the order of the Commission is affirmed at appellants’ cost.

AFFIRMED.

      . The bracketed words are contained in the charges.


author: WATKINS, Judge.

text:
    Brian RODRIGUE, husband, and Mrs. Connie Papa Rodrigue, wife v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY.
    No. 83 CA 1419.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 28, 1984.

      David M. Richard, Thibodaux, for plaintiff-appellant.
    Diana M. Sanders, Raceland, Leslie J. Clement, Jr., Stephen E. Caillouet, Christopher H. Riviere, Thibodaux, for defendant-appellee.
    Clark Const. Co. through the Secretary of State James H. Brown, Baton Rouge, unrepresented defendant.
    Before WATKINS, CRAIN and ALFORD, JJ.
   WATKINS, Judge.

Plaintiffs, Brian Rodrigue, husband and Connie Papa Rodrigue, appeal from a final judgment granting a Motion for Summary Judgment in favor of defendant, State Farm Mutual Automobile Insurance Company (State Farm), dismissing their claim in which they seek to stack two uninsured motorist coverage policies. We affirm.

The record establishes the following facts:

On August 12, 1979, Mrs. Rodrigue, while walking in the parking area of the “Nothin Fancy” lounge, was struck and injured by a 1972 Buick, operated by Debbie Ann Killingsworth. The record establishes that Killingsworth was uninsured.

The Rodrigues then filed suit against their UM carrier, State Farm, under two separate insurance policies, both of which provided underinsured/uninsured motorist coverage. The limits under each of the two policies in question are $25,000/$50,000.

Subsequently, the plaintiffs settled with State Farm for the limits of one uninsured policy and the medical payments under both. Plaintiffs, having reserved their rights then proceeded against State Farm under the second uninsured policy coverage. State Farm then filed a motion for Summary Judgment which was subsequently granted and the Rodrigues have devolutively appealed.

Plaintiffs contend that the criteria of the anti-stacking provision of LSA-R.S. 22:1406D(1)(c) are so clearly arbitrary and capricious as to render that legislation unconstitutional. Although not raised at the trial level, we find this claim has no merit. Plaintiffs cite the following cases in support of their contention that LSA-R.S. 22:1406D(1)(c) is so clearly arbitrary and capricious as to be unreasonable: Magnon v. Acadian Metropolitan Code Authority, 413 So.2d 972 (La.App. 3rd Cir.1982); City of Crowley Fireman v. City of Crowley, 264 So.2d 368 (La.App. 3rd Cir.1972), cert. granted, 266 So.2d 219, affirmed 280 So.2d 897 (La.1973); Hunter v. City of Shreveport, 216 So.2d 140 (La.App. 2nd Cir.1968), writ denied, 253 La. 323, 217 So.2d 414 (1969). We find that all the above cases involve municipal corporations and are factually distinguishable.

Historically, “stacking” was permitted by the courts when the mandated UM coverage limits were the minimal $5,000/$10,-000. Amendments to LSA-R.S. 22:1406D(l)(c) in 1972, 1974 and 1977, along with the jurisprudence, expanded the insureds’ right to UM protection. With this increased access to UM coverage the legislature was persuaded to adopt Act 623 of 1977, which is known as the anti-stacking provision. We find that the legislature did not act arbitrarily and capriciously in passing Act 623 but instead acted reasonably in response to the growing jurisprudence permitting stacking. See McKenzie, Louisiana Uninsured Motorist Coverage After Twenty Years, 43 La.L.Rev. 691, 717 (1981-83).

The Louisiana Supreme Court in Nall v. State Farm Mutual Automobile Ins. Co., 406 So.2d 216 (La.1981), construed Act 623 and made clear that three conditions must exist in order for LSA-R.S. 22:1406D(1)(c), the anti-stacking exception to apply: (1) the insured party must have been occupying an automobile not owned by him; (2) there must be UM coverage on the occupied vehicle, which coverage is primary; and (3) there must be at least one other UM coverage available to the injured party who has not been fully compensated for his damages. Plaintiffs admit and we agree that they do not fit into the criteria of the exception.

LSA-R.S. 22:1406D(1) was amended by Act 623 of 1977 to add the language contained in subsection D(l)(c) for the purpose of preventing “stacking” of policies and coverage, which had been allowed under decisions interpreting the statute prior to the amendment. It is clear to us that the question of stacking sub judice is the type of situation that the legislature intended Act 623 to prevent. Clement v. Continental Ins. Co., 430 So.2d 1212 (La.App. 1st Cir.1983), writ denied, 433 So.2d 1057 (La.1983); Branch v. O’Brien, 396 So.2d 1372 (La.App. 2nd Cir.1981), writ denied, 400 So.2d 905 (La.1981).

Accordingly, for the foregoing reasons, the judgment of the trial court is affirmed. All cost of this appeal are to be paid by plaintiffs-appellants.

AFFIRMED.

      . The record establishes that the vehicle, at the time of the accident, was owned by Cody Lloyd Vice, an absentee from the State of Louisiana, domiciled in the State of Mississippi; and/or Clark Construction Company, a foreign corporation not licensed to do business in the State of Louisiana; and/or Leroy Frost, an absentee from the State of Louisiana, domiciled in the State of Mississippi.

      . LSA-R.S. 22:1406D(l)(c) provides in pertinent part:
      With respect to bodily injury to an injured party while occupying an automobile not owned by said injured party, the following priorities of recovery under uninsured motorist coverage shall apply:
      (i) The uninsured motorist coverage on the vehicle in which the injured party was an occupant is primary;
      (ii) Should that primary uninsured motorist coverage be exhausted due to the extent of damages, then the injured occupant may recover as excess from other uninsured motorist coverage available to him. In no instance shall more than one coverage from more than one uninsured motorist policy be available as excess over and above the primary coverage available to the injured occupant.


author: CRAIN, Judge.

text:
    STATE of Louisiana v. Wayne A. CORKERN.
    No. 83 KA 1433.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 28, 1984.

      Sam J. Dileo, Asst. Dist. Atty., Amite, for plaintiff — State of La.
    Thomas J. Hogan, Jr., Hammond, for defendant — Wayne A. Corkern.
    Before WATKINS, CRAIN and ALFORD, JJ.
   CRAIN, Judge.

Wayne Anthony Corkern, defendant, was charged by bill of information with one count of armed robbery, a violation of La. R.S. 14:64. The jury returned a responsive verdict of guilty of simple robbery, and defendant was subsequently sentenced to serve five years at hard labor, to be served consecutively to any sentence defendant might currently be serving. He has appealed, alleging four assignments of error:

1. The trial court erred in failing to order a mistrial based upon a prejudicial remark made by a court official.
2. 'The trial court erred in failing to grant a directed verdict at the close of the state’s case.
3. The trial court erred in denying defendant’s motion to view the scene of the crime.
4. The trial court imposed an excessive sentence.

We affirm.

Defendant was convicted of an armed robbery which occurred on December 9, 1982, at a rest area on Interstate 55 near Hammond, Louisiana. The victim, Joseph Nobles, testified at the trial, and related that he was cut twice and robbed after assisting defendant and three companions who were having trouble with their van. Nobles testified that he noticed two men standing near the van when he pulled into the rest area. The victim was asked by defendant if he would jump the van off. He complied, and started the van. When he began to leave he was stopped by one of defendant’s companions who pulled a knife on him. Defendant then reached into the victim’s car to unlock the back door and proceeded to remove the victim’s wallet from his pocket. The victim was cut twice during the course of the incident. Defendant and the three companions then drove off together in the defendant’s van. Approximately one week later, defendant turned himself in to the Livingston Parish sheriff’s office. He gave a statement in which he admitted that he was at the rest area with the other men, but implicated Brent Harrell, one of his companions, as the man who pulled the knife and robbed the victim. Defendant denied any active participation in the crime. The jury returned the responsive verdict of guilty of simple robbery.

ASSIGNMENT OF ERROR NO. ONE:

In this assignment of error, defendant argues that the trial court erred in failing to grant a mistrial based on the minute clerk reading the wrong bill of information at the opening of the trial.

When asked to read the bill of information to the jury, the minute clerk began as follows: “Duncan S. Kemp, III, District Attorney for the 21st Judicial District, Parish of Tangipahoa, State of Louisiana, charges that Wayne Anthony Corkern, on or about the 9th day of December, 1982, committed the offense of aggravated battery....”

The district attorney immediately interrupted the reading of the bill, stating that it was the wrong bill. Defense counsel moved for a mistrial under the mandatory provisions of La.C.Cr.P. art. 770, which requires that a mistrial be granted whenever a court official, during the trial, refers directly or indirectly to another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible. The trial court denied the mistrial. In a per curiam response to defendant’s assignment of error, the trial court noted that it denied the mistrial because La.C.Cr.P. art. 770 is directed to evidence of other crimes when that evidence is not admissible. The aggravated battery charge stemmed from the same armed robbery incident and occurred when the victim was stabbed with the knife during the robbery. The trial court’s opinion states that evidence of this charge was admissible because it arose from the same incident, and defendant was thus not entitled to a mistrial. We agree.

In this case, evidence of the aggravated battery would have been admissible as part of the res gestae of the robbery. Evidence of multiple crimes committed in a single course of conduct is admissible as res gestae at the trial of the accused for the commission of one or more, but not all of the crimes committed in his course of conduct. State v. Washington, 407 So.2d 1138 (La.1981). The mistrial was properly denied.

ASSIGNMENT OF ERROR NO. TWO:

In this assignment, defendant argues the trial court erred in failing to grant a directed verdict at the close of the state’s case. Defense counsel moved for a judgment of acquittal based on the state’s not having proved the defendant was a perpetrator of the crime nor defendant’s specific intent to commit an armed robbery, an essential element of the crime. The trial court properly denied the motion.

A defendant is not entitled to a directed verdict of acquittal in a jury trial. La.C.Cr.P. art. 778; State v. Stevenson, 447 So.2d 1125 (La.App. 1st Cir.1984). However, in State v. Smith, 430 So.2d 31 (La.1983), the Louisiana Supreme Court indicated that, although a motion for acquittal was not a proper way for a defendant to raise the issue of the sufficiency of the evidence, the court would, nevertheless, consider the merits of the argument by treating the acquittal motion as a motion for a new trial. We note that defendant herein could have properly presented the issue of the sufficiency of the evidence through an assignment of error. Thus, although we find no error procedurally in the denial of the directed verdict by the trial court, we will review the sufficiency of the evidence as though it had been raised in the proper procedural context.

The standard of review of the sufficiency of the evidence is whether, viewing the evidence in the light most favorable to the prosecution, any rational juror could have found that the state proved the essential elements of the crime charged. La.C.Cr.P. art. 821; State v. Korman, 439 So.2d 1099 (La.App. 1st Cir.1983). We find the state met that standard.

Defendant argues that the state failed to present positive proof that defendant was one of the perpetrators of the robbery, and that defendant had the specific intent to commit the robbery.

The victim identified defendant as one of the perpetrators. Defendant argues the victim’s identification of him was faulty because the victim described him as having short hair and a clean shaven face at the time of the incident, while other evidence indicated that defendant had a mustache and long hair at the time of the robbery.

Initially, we note that the identification of defendant was not at issue because, in his taped statement, defendant admitted that he was present at the robbery. In finding defendant guilty, it is obvious that the jury believed the victim. The testimony of the victim is sufficient to establish the elements of an offense. State v. Johnson, 446 So.2d 1371, (La.App. 1st Cir.1984), writ denied, 449 So.2d 1347 (La.1984). The credibility of the victim’s testimony is a matter of weight of the evidence. A determination of the weight to be given evidence is a question of fact for the trier of fact, not subject to appellate review. Johnson, 446 So.2d at 1375. This argument is without merit.

Defendant also argues that the state did not prove he had the specific intent to commit the robbery. Defendant argues he had no motive to commit the robbery and that, in essence, he merely accompanied the other men, and was not involved in the planning or execution of the offense.

Intent is a question of fact, and may be inferred from the circumstances of the transaction. La.R.S. 15:445. Defendant has never raised the issue as to any possible coercion on the part of the co-perpetrators to force him to commit the crime. The victim expressly testified that defendant assisted in the robbery. Where a statute has made it a crime to do a particular act, no further proof of intent is required than that the accused voluntarily did the act. La.R.S. 15:444. This argument has no merit.

ASSIGNMENT OF ERROR NO. THREE:

Defendant argues the trial court erred in denying defendant's motion to have the jury view the scene of the crime. Defendant submits that knowledge of the layout of the rest area is crucial for a determination of the victim’s credibility.

It is well settled that the decision regarding whether to grant or deny a motion to have a jury view the scene of the crime is within the sound discretion of the trial court, whose ruling will not be disturbed on appeal absent an abuse of that discretion. La.C.Cr.P. art. 762(2); State v. Moore, 432 So.2d 209 (La.1983), cert. denied, _ U.S. _, 104 S.Ct. 435, 78 L.Ed.2d 367 (1983). Defendant exhibit Number 3 is defendant’s own hand-drawn sketch of the layout of the rest area. We find this sketch plus the testimony of the witnesses was sufficient to show clearly the layout of the crime scene and participants. State v. Moore, 432 So.2d at 216. It was not necessary for the jury to view the scene in order for the defendant to receive a fair and impartial trial. The trial court did not abuse its discretion in denying defendant’s motion.

ASSIGNMENT OF ERROR NO. FOUR:

Defendant argues the sentence imposed is excessive, and that the trial court did not adequately articulate its reasons for the imposition of the sentence. In arguing that the sentence is excessive, defendant stresses that the court erred in ordering the sentence to be served consecutive to the remainder of an existing year sentence which defendant is presently serving.

At the time of the commission of the instant offense, defendant was on probation for an earlier conviction. He testified at the sentencing hearing that he was, in fact, classified as a third felony offender, and that his probation had been revoked as a result of this conviction. Defendant does not allege, nor does the record reflect, that these two offenses were part of a common scheme or plan, nor do they appear to be part of the same act or transaction. In this factual posture, these sentences would be served consecutively as a matter of law unless the trial court directed otherwise. La.C.Cr.P. art. 883. The sentence is not excessive because it was imposed consecutively. State v. Young, 432 So.2d 1012 (La.App. 1st Cir.1983).

As for the length of the sentence, we find it is not excessive. The trial court has wide discretion in the imposition of sentences, and, given compliance with the criteria listed in La.C.Cr.P. art. 894.1, a sentence will not be set aside absent an abuse of that discretion. State v. Wardlow, 448 So.2d 257 (La.App. 1st Cir.1984).

The maximum sentence of imprisonment which defendant could have received for the conviction of simple robbery is imprisonment, with or without hard labor for not more than seven years. La.R.S. 14:65. In sentencing defendant to a term of five years, the court noted defendant’s two pri- or felony convictions, that defendant had been in trouble since he was a juvenile, and that defendant was in need of correctional treatment or a custodial environment because it believed defendant would not stay out of trouble unless incarcerated.

We find adequate articulation of the trial court’s reasons for the imposition of this sentence, and that the sentence is not so excessive as to constitute an abuse of discretion.

For the foregoing reasons, the conviction and sentence are affirmed.

AFFIRMED.


author: CARTER, Judge:

text:
    Nona SMITH v. DEPARTMENT OF HEALTH & HUMAN RESOURCES, SOUTHEAST LOUISIANA STATE HOSPITAL.
    No. 83 CA 1438.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 28, 1984.
    Writ Denied March 8, 1985.

      Thomas J. Hogan, Jr., Hogan & Hogan, Hammond, for appellant.
    Fernin F. Eaton, Staff Atty., Dept. Of Health & Human Resources, Baton Rouge, for appellee.
    Robert R. Boland, Jr., Civil Service Legal Counsel Dept, of State Civil Service, Baton Rouge, for Herbert L. Sumrall.
    Before COLE, CARTER and LANIER, JJ.
   CARTER, Judge:

Appellant, Nona Smith, appeals a Louisiana State Civil Service Commission decision dismissing as untimely her appeal of a written reprimand issued in connection with her employment at Southeast Louisiana State Hospital, a facility of the Department of Health and Human Resources.

Appellant was a classified employee in the state civil service with permanent status. By letter dated September 11, 1981, she was officially reprimanded by the Chief Executive Officer of Southeast Louisiana State Hospital for having verbally abused vocational rehabilitation clients. On January 4, 1982, she notified the Louisiana Civil Service Commission (Commission) of her desire to appeal. The Commission filed a motion for summary disposition on the ground that the appeal was untimely filed. The referee appointed by the Commission to hear the case found for the plaintiff and denied the Commission’s motion for summary disposition based upon the referee’s interpretation of Spears v. Department of Corrections, 402 So.2d 203 (La.App. 1st Cir.1981). In addition, the referee awarded to appellant attorney fees in the amount of $500.00. The Commission granted a review of the referee’s decision and rendered a decision reversing the referee, dismissing the appeal as untimely and setting aside the award of attorney fees. Appellant appeals from the decision of the Commission.

At the time of the Spears decision, the Civil Service Rules provided that notice of appeal rights be given to employees who were terminated, demoted, or reduced in pay for cause. There was no notice requirement for employees who were suspended, and Spears held this to be a violation of equal protection. The Commission subsequently formulated a rule requiring the appointing authority to advise the suspended employee of his right to appeal.

In her first two assignments of error, appellant questions whether permanent employees who receive written reprimands must be furnished with the same notification of the right to appeal as are permanent employees who are suspended, terminated, demoted, or reduced in pay for cause.

The right to appeal a disciplinary action is constitutional. La. Const. of 1974, art. X, § 8(A). Rule 12.1 indicates that a reprimand is a disciplinary action. There is no Civil Service Rule requiring notice of right to appeal in the case of reprimands.

The Commission has rule-making power, and its rules have the effect of law. La. Const. of 1974, art. X, § 10(A)(1) and (4). If a Civil Service rule is reasonable and not violative of basic constitutional rights, it must be recognized and given effect by the courts. Thoreson v. Department of State Civil Service, 433 So.2d 184 (La.App. 1st Cir.1983), writ denied, 440 So.2d 726 (La.1983), reconsideration denied, 442 So.2d 452 (La.1983). Civil Service rules even prevail over acts of the legislature which may be in conflict with them. Smith v. Department of Health and Human Resources, 416 So.2d 94 (La.1982).

The Fourteenth Amendment of the United States Constitution and Article 1, Section 3 of the Louisiana Constitution of 1974 provide that no one can be denied the equal protection of the law; and, this right to equal protection applies to every kind of state action, whether by statute or the action or rules of an administrative agency. Spears v. Department of Corrections, supra.

In Succession of Thompson, 367 So.2d 796, 798 (La.1979), the Supreme Court stated that:

The equal protection guarantee of Article 1, § 3 requires state laws to affect alike all persons and interests similarly situated. However, persons or interests may be classified differently by the legislature [or an administrative agency] if a rational basis exists for the differentiation which is reasonably related to a valid governmental purpose. (Bracketed portion supplied; citations omitted.)

A written reprimand such as that given appellant in the case sub judice does not affect either temporarily or permanently any substantial employee rights, and a rational basis exists for the differentiation of written reprimand from suspension, removal, demotion, or reduction in pay for cause. It is clear that substantial rights are affected when an employee is suspended, removed, demoted, or reduced in pay, and the Civil Service Rules expressly provide that notice of appeal rights be given in those instances. However, the same is not true of written reprimands. Although the right to appeal exists, no notice of appeal is required by the Civil Service Rules for the disciplinary actions of reprimand. Therefore, appellant was not entitled to be notified of her appeal rights under the facts of this case. In addition, the delays for taking an appeal from the written reprimand have long since expired. Appellant received the letter of reprimand September 11, 1981. She did not file a request for appeal of the reprimand until January 4, 1982. Civil Service Rule 13.12.

In her third and final assignment of error, appellant argues that the Commission erred in reversing the referee’s award of $500.00 in attorney fees. Under Civil Service Rule 13.35(a), the Commission has the discretionary power to award attorney fees when it reverses or modifies an appel-lee’s actions in a Civil Service appeal. In the case sub judice, the Commission agreed with the appellee’s actions and is not reversing or modifying the appellee’s actions, nor did the Commission approve a rescisión or modify a disciplinary action; therefore, the referee’s award of attorney fees was properly reversed.

For the foregoing reasons, the decision of the Civil Service Commission is affirmed. Appellant is casts for costs of this appeal.

AFFIRMED.

LANIER, J., concurs in the result.

COLE, J., respectfully dissents.

      . Appellant also sought to appeal a verbal order of October 22, 1981, transferring her from the Vocational Rehabilitation Unit to the Diagnostic and Evaluation Center, Children’s Home. However, she retired on June 30, 1982, and later stipulated that portion of her appeal was moot.

      . Rules 12.2(a) and 12.3(a) provide in pertinent part as follows:
      12.2 Suspensions.
      (a) Any permanent employee who is suspended without pay shall be so notified by his appointing authority or his authorized agent on or before the effective time and date of the commencement of the suspension. Each permanent employee so suspended shall be furnished detailed reasons therefor in writing prior to or within fifteen (15) calendar days following the effective date of the suspension. A copy of such detailed reasons shall be furnished to the Director. For each permanent employee so suspended, the notice containing the detailed reasons for the suspension shall contain the notification of the right to appeal required by Rules 12.3(a)2 below.
      12.3 Procedure in Removals, Demotions and Reductions in Pay of Permanent Employees,
      (a) In every case of removal, demotion, or reduction in pay for cause of a permanent employee, the appointing authority or his authorized agent shall:
      1. Furnish to the employee at the time such action is taken, or prior thereto, a statement in writing giving detailed reasons for such action.
      2. In such cases, the appointing authority or his duly authorized agent shall, commencing January 1, 1978, include in the written notice the following provision: “You may appeal this action to the Civil Service Commission within 30 days. The appeal must conform to the provisions of Chapter 13 of the Civil Service Rules."

      . Rule 13.10(b) implements this constitutional right provides an appeal may be made to this Commission by:
      (b) Any person in the Classified Service who, having acquired permanent tenure, alleges that he has been demoted, dismissed, discriminated against, or subjected to any disciplinary action contrary to any provision of the Article or of the Rules of this Commission.

      . Rule 12.1 provides as follows:
      12.1 Disciplinary Actions
      Any appointing authority may take appropriate action to remove, suspend, demote, reduce in pay, reassign or reprimand an employee for cause.

      .The Equal Protection Clause of the 14th Amendment of the United States Constitution provides:
      All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
      Article 1, Section 3 of the Louisiana Constitution of 1974 provides in pertinent part:
      No person shall be denied the equal protection of the laws.

      . We are not herein presented with a situation where the written reprimand is being used as a basis for disciplinary action affecting substantial rights of the employee.

      . Rule 13.12 provides in pertinent part as follows:
      (a) No appeal shall be effective unless a written notice complying with the requirements of Rule 13.11 is either (i) received in the office of the Director of the State Department of Civil Service at Baton Rouge, Louisiana, or (ii) is addressed to the Director of the State Department of Civil Service at Baton Rouge, Louisiana, with proper postage affixed, and is dated by the United States Post Office.
      1. Within thirty (30) calendar days after the date on which appellant received written notice of the action on which the appeal is based when written notice before or after the action is required by these Rules; or
      2. Within thirty (30) calendar days after the date when appellant learned or was aware that the action complained of had occurred when no written notice is required by these Rules or, if required, was given tardily or not at all.


author: ALFORD, Judge.

text:
    STATE of Louisiana v. Mark Stephen CROSS.
    No. KA 84 0119.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 28, 1984.

      Duncan S. Kemp, III, Dist. Atty., 21st Judicial Dist. Court by Sam J. Dileo, Jr., Asst. Dist. Atty., Amite, for plaintiff-appel-lee State of Louisiana.
    Joseph E. Anzalone, Jr., Public Defender, 21st Judicial Dist. Court by Richard C. Ma-caluso, Asst. Public Defender, Amite, for defendant-appellant.
    Before WATKINS, CRAIN and ALFORD, JJ.
   ALFORD, Judge.

Defendant, Mark Steven Cross, was charged by grand jury indictment with armed robbery, a violation of La.R.S. 14:64. Defendant pled not guilty, was tried by a jury, and was found guilty as charged. The trial judge sentenced defendant to eighteen years at hard labor without benefit of probation, parole, or suspension of sentence.

Defendant appeals, assigning ten errors. Assignments of Error Numbers 1, 4, 7 and 9 were not briefed on appeal and are therefore considered abandoned. Uniform Rules of the Courts of Appeal, Rule 2-12.4. In addition, we note that there was no Assignment of Error No. 8, i.e., errors assigned skipped from No. 7 to No. 9.

According to the evidence adduced at trial, on February 13, 1979, defendant and another man, John Ford, robbed Larry J. Perez, the owner and manager of the Minute Man Grocery Store, of $300.00. Perez testified that about 3:00 p.m. a car drove up in front of the store near the gas pumps; a man got out and indicated that he wanted some gas. Shortly thereafter, the man took out a gun and told Perez to “take out your wallet and put it on the counter, open the cash register and get on the floor.” Perez did as he was told. The first man went through the cash register while the second man continued holding the gun on Perez. Perez identified defendant as the man with the gun.

John Ford testified that he and defendant robbed the Minute Man Grocery Store on February 13, 1979. He testified to essentially the same facts as Perez. In addition, Ford stated that he and defendant took the money (about $300.00) and the gun and buried them in a wooded area.

Rita Ford, John Ford’s sister, testified that on two occassions defendant told her that he and her brother had robbed the Minute Man Grocery Store and had buried the money.

ASSIGNMENT OF ERROR NUMBER 2:

In this assignment of error, defendant contends that the trial court erred in refusing to grant a mistrial based on the untimely severance of the co-defendant.

Defendant and co-defendant John Ford were jointly indicted on charges of armed robbery. On the day set for trial, defendant, his attorney, and the district attorney were present in court; neither co-defendant nor his attorney were present. The indictment charging both defendant and co-defendant with armed robbery was read to the jury. Defense counsel then moved for a mistrial, arguing that although the indictment named both defendant and co-defendant, the district attorney, without first making a motion to sever, had brought only defendant to trial. At this point, the district attorney formally moved for a severance. The trial judge granted the severance and co-defendant’s name was removed from the indictment. The trial judge then denied defendant’s motion for a mistrial.

Defendant argues that such a severance was an amendment of the indictment requiring a mistrial pursuant to LSA C.Cr.P. art. 487. Article 487 provides in pertinent part: “Before the trial begins the court may order an indictment amended with respect to a defect of substance. After the trial begins a mistrial shall be ordered on the ground of a defect of substance.” However, a severance of co-defendants is not an amendment of an indictment grounded on - a substantive defect within the meaning of LSA C.Cr.P. art. 487.

According to La.C.Cr.P. art. 704, jointly indicted defendants shall be tried jointly unless (1) the state elects to try them separately, or (2) the court, on motion of the defendant, and after contradictory hearing with the district attorney, is satisfied that justice requires a severance. The code does not state a specific time in which the state must announce its intention to try defendants separately.

We note that it is also evident that defendant knew of the severance when, at the opening of trial, neither co-defendant nor his attorney were present in court. At that point, had defendant been in need of additional time in which to prepare his defense, the proper action would have been to request a recess, which he did not. We view defendant’s failure to do so as a deliberate attempt to cause the mistrial he later requested. We find no merit in this assignment of error.

ASSIGNMENT OF ERROR NUMBER 3:

In assignment of error no. 3, defendant contends that the indictment is defective in that it fails to name a person as victim of the armed robbery. La.R.S. 14:64 defines armed robbery as the taking of anything of value belonging to another from the person of another or that is in the immediate control of another, by use of force or intimidation, while armed with a dangerous weapon. The indictment in the present case charges that defendant “while armed with a dangerous weapon, robbed Minute Man Grocery Store ...”

In State v. James, 305 So.2d 514, 516 (La.1974), the Supreme Court stated:

[WJhere in fact an accused has been fairly informed of the charge against him by the indictment and has not been prejudiced by surprise or lack of notice, the technical sufficiency of the indictment may not be questioned after conviction where, as here, no objection was raised to it prior to the verdict and where, without unfairness, the accused may be protected against further prosecution for any offense or offenses charged by it through examination of the pleadings and the evidence in the instant prosecution.

In State v. Gainey, 376 So.2d 1240 (La.1979) and State v. Pichler, 355 So.2d 1302 (La.1978), the court applied the rationale of State v. James, supra, to cases in which a defendant raises a defect in the indictment prior to conviction. The court noted that any obscurity as to an offense charged could have been removed by a motion for a bill of particulars.

In the instant case, defendant has shown no prejudice as a result of the technical insufficiency of the indictment. We find no merit in this assignment of error.

ASSIGNMENT OF ERROR NUMBER 5:

In this assignment of error, defendant argues that the trial court erred in not directing a verdict of acquittal. A review of the record reveals that defendant, at the conclusion of the state’s case, moved for “a directed verdict based on the law and not on the facts.” However, a trial judge has no authority to grant a directed verdict in a jury trial. See, State v. Andrews, 451 So.2d 175 (La.App. 1st Cir.1984). Accordingly, we find no merit to this assignment of error.

ASSIGNMENT OF ERROR NUMBER 6:

Defendant contends that the trial judge erred when he refused to give a special jury charge requested by defendant. Defendant submitted the following special written charge to the jury:

The Armed Robbery Statute of Louisiana requires a robbery of a person. If the indictment charges armed robbery of a place or thing, you cannot find the defendant guilty of armed robbery.

The state and the defendant shall have the right to submit to the court special written charges for the jury. A requested special charge shall be given by the court if it does not require qualification, limitation, or explanation, and if it is wholly correct and pertinent. It need not be given if it is included in the general charge or in another special charge to be given. La.C.Cr.P. art. 807; State v. James, 431 So.2d 399 (La.1983), cert. denied, _ U.S. _, 104 S.Ct. 263, 78 L.Ed.2d 247 (1983).

For the reasons stated in our discussion of assignment of error no. 3, we find the special jury charge requested by defendant to be clearly wrong. The trial judge did not err in refusing to give the requested jury charge. There is no merit in this assignment of error.

ASSIGNMENT OF ERROR NUMBER 10:

Under this assignment of error defendant argues that the evidence was insufficient to support a verdict. As this court stated in State v. Walker, 447 So.2d 54, 55 (La.App. 1st Cir.1984):

When reviewing the sufficiency of the evidence, the appellate court must review under the standard of La.C.Cr.P. art. 821 regardless of whether the question is raised as a motion for a post verdict judgment of acquittal or as an assignment of error from a holding of the trier of fact. La.C.Cr.P. art. 821; State v. Korman, 439 So.2d 1099 (La.App. 1st Cir.1983); Joseph, Developments in the Law, 1982-1983: Post Conviction Procedure, 44 LLR 480 (1983). The standard established by La.C.Cr.P. art. 821 is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. La.C.Cr.P. art. 821; Korman, 439 So.2d at 1100.

The victim testified at trial and positively identified defendant as the man who had robbed him. John Ford, the other principal in the robbery, testified that he and defendant robbed the Minute Man Grocery Store together. Viewed in the light most favorable to the prosecution, a rational juror could have determined that the defendant committed the crime as defined by LSA-R.S. 14:64. This assignment of error is without merit.

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

AFFIRMED.

      . We note that despite defendant’s failure to set forth a formal assignment of error No. 8, defendant does, however, argue an assignment of error No. 8 in brief. Defendant contends that the trial court erred when it failed to allow, pursuant to the State’s objection, defendant to argue that "based on the indictment no crime was committed because the indictment did not set forth a necessary and indispensible element of the crime, namely, that a person be robbed.’’ The law regarding an argument first set out in brief was stated in State v. Spears, 350 So.2d 603, 605, footnote No. 1 (La.1977), as follows:
      Defendant’s allegations of error are not embodied in a formal assignment of error. His contention first appears in his brief.
      Article 844 of the Code of Criminal Procedure provides:
      "The party appealing shall designate, in writing, those errors which are to be urged on appeal.
      "This assignment of errors shall be filed within the time specified by the trial judge.
      “The trial judge may submit such per cu-riam comments as he desires.”
      Moreover, Article 920 of the Code of Criminal Procedure provides:

        "The following matters and no others shall be considered on appeal:
      (1) An error designated in the assignment of errors; and
      (2) An error that is discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence.” (Emphasis added.)
      Hence, these allegations of error are not properly before us on appeal.

      . See State v. Sims, 346 So.2d 664 (La.1977), in which the court found that a motion to sever made by the state three days prior to trial was timely. The court noted that a continuance would have been the appropriate vehicle to rectify any harsh effects which ordering the severance may have caused to defendant.