text:
    Stanley KIRKLIN v. Sidney KELLER, Jr. and Kaiser Aluminum & Chemical Corporation.
    No. 84-C-1343.
    Supreme Court of Louisiana.
    Oct. 5, 1984.
   In re Stanley Kirklin, applying for writ of certiorari and review to the Fifth Circuit Court of Appeal, No. 83-CA-843, from the Twenty-Third Judicial District Court, Parish of St. James, No. 14381.

Prior report: 453 So.2d 667.

Denied.

LEMMON, J., would grant the writ.


source: Caselaw Access Project

license: Public Domain

text:
    In re ROY, MULCHIN AND FEDERLINE (A MEDICAL CORPORATION) d/b/a Mulchin & Federline (A Medical Corporation) Petitioning For Dissolution and Liquidation.
    No. 84-C-1344.
    Supreme Court of Louisiana.
    Oct. 5, 1984.
   In re Michael J. Federline, Individually and on Behalf of Roy, Mulchin and Feder-line (A Medical Corporation) d/b/a Mulchin & Federline (A Medical Corporation), applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, No. CA-1353, Civil District Court, Parish of Orleans, No. 80-7386.

Prior report: 452 So.2d 788.

Denied.

WATSON, J., would grant the writ.


text:
    STATE of Louisiana v. Phillip Keith YOUNG and Roy K. Young.
    No. 84-KK-1345.
    Supreme Court of Louisiana.
    Oct. 5,- 1984.
   In re Phillip Keith Young and Roy K. Young, applying for writ of review to the First Judicial District Court, Parish of Cad-do, No. 125003, Division “G”; Second Circuit Court of Appeal, No. 16586-KW.

Denied.

DIXON, C.J., and CALOGERO and DENNIS, JJ., would grant the writ.


text:
    BATON ROUGE BANK & TRUST CO., as Dative Testamentary Executor of the Succession of Ted F. Dunham, Sr. v. Ted F. DUNHAM, Jr.
    No. 84-CC-1347.
    Supreme Court of Louisiana.
    Oct. 5, 1984.
   In re Baton Rouge Bank & Trust Co., applying for supervisory writ to the Nineteenth Judicial District Court, Parish of East Baton Rouge, No. 218796, First Circuit Court of Appeal, No. CW-84-0817.

Denied.

CALOGERO, J., would grant the writ.


text:
    STATE of Louisiana v. Ernest YOUNG.
    No. 84-KK-1353.
    Supreme Court of Louisiana.
    Oct. 5, 1984.
   In re Ernest Young, applying for supervisory writ to the Nineteenth Judicial District Court, Parish of East Baton Rouge, No. 10-83-583, First Circuit Court of Appeal, No. KW-84-0808.

Denied.


text:
    STATE of Louisiana v. William D. ALLEN.
    No. 84-KK-1354.
    Supreme Court of Louisiana.
    Oct. 5, 1984.
   In re William D. Allen, applying for writ of certiorari, or review, to the 18th Judicial District Court, Parish of Pointe Coupee, No. 29888; Court of Appeal, First Circuit, No. KW-84-0632.

Denied.


text:
    Lynn D. BERRY v. HOUSTON WELL SERVICE, INC., et al.
    No. 84-CC-1357.
    Supreme Court of Louisiana.
    Oct. 5, 1984.
   In re Lynn D. Berry, applying for supervisory writs to the Thirty-sixth Judicial District Court, Parish of Beauregard, No. C-374-78; Third Circuit Court of Appeal, No. 84-558.

Denied.

CALOGERO, WATSON and LEMMON, JJ., would grant the writ.


text:
    Connie Sue PONDER, Individually and as Natural Tutrix of her Minor Child, Donald Ray Ponder, Jr. v. GROENDYKE TRANSPORT, INC., et al. Linda PONDER, Individually and as Natural Tutrix of the Minor Children, John Wayne Ponder, Christopher D. Ponder and Angelia N. Ponder v. GROENDYKE TRANSPORT, INC., et al. Michael E. MOLSBEE v. GROENDYKE TRANSPORT, INC., et al.
    No. 84-C-1358.
    Supreme Court of Louisiana.
    Oct. 5, 1984.
   In re Stuart A. Thevenot, Groendyke Transport, Inc., North Star Reinsurance Corporation and Mission Insurance Company, applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, Nos. 83-503, 83-504, 84-505; Twelfth Judicial District Court, Parish of Avoyelles, Nos. 82-2141, 82-2142, 82-2442.

Prior report: 454 So.2d 823; 454 So.2d 831; 454 So.2d 832.

Denied.


text:
    Stuart A. THEVENOT v. STATE of Louisiana DEPARTMENT OF TRANSPORTATION & DEVELOPMENT.
    No. 84-C-1359.
    Supreme Court of Louisiana.
    Oct. 5, 1984.
   In re Stuart A. Thevenot, applying for writ of certiorari or review to the Third Circuit Court of Appeal, No. 83-506, Parish of Avoyelles, 12th Judicial District Court, No. 82-3033.

Denied.


text:
    Alice H. JONES, Administratrix of the Estate of Beverly Henry, et al. v. PHILCO-FORD CORP. et al.
    No. 84-C-1419.
    Supreme Court of Louisiana.
    Oct. 5, 1984.
   In re Gulf States Utilities, applying for writ of certiorari, writ of review to the Court of Appeal, First Circuit, No. 83-CA-0057; Parish of East Baton Rouge, 19th Judicial District Court, Div. “L”, No. 253712.

Prior report: 441 So.2d 1251; 452 So.2d 370.

Denied.


text:
    STATE of Louisiana ex rel. John W. ALLEN v. Hon. Frank A. MARULLO, Jr., Judge and the Clerk of Court, Sec. “D”, Criminal District Court, Parish of Orleans, State of Louisiana.
    No. 84-KH-1426.
    Supreme Court of Louisiana.
    Oct. 5, 1984.
   In re John W. Allen, applying for remedial writs to the Criminal District Court, Section “D”, No. 221-178, Parish of Orleans.

Denied. The transcript of the guilty plea is not available.


text:
    Joseph N. CANIZAREO, et al. v. AMINVEST CANAL, et al.
    No. 84-CC-1433.
    Supreme Court of Louisiana.
    Oct. 5, 1984.
   In re Joseph Canizaro, et al., applying for writ of certiorari, to the Court of Appeal, Fourth Circuit, No. C-2548; Civil District Court, Parish of Orleans, No. 84-6013.

Denied.

CALOGERO and LEMMON, JJ., would grant the writ.


text:
    STATE of Louisiana v. Reginald Ray HANDLEY.
    No. 84-K-1483.
    Supreme Court of Louisiana.
    Oct. 5, 1984.
   In re Hanley, Reginald Ray, applying for writ of certiorari, writ of review to the Court of Appeal, First Circuit, No. KA-84-0050; Parish of East Baton Rouge, 19th Judicial District Court, Div. “C”, No. 6-73-5034.

Prior report: 453 So.2d 1242.

Denied.


text:
    STATE of Louisiana v. James Lee COLVIN.
    No. 84-K-1496.
    Supreme Court of Louisiana.
    Oct. 5, 1984.
   In re Colvin, James Lee, applying for writ of certiorari, writ of review to the Court of Appeal, Second Circuit, No. 15996-KA; Parish of Caddo, 1st Judicial District Court, Div. “D”, No. 121-633.

Prior report: 452 So.2d 1214.

Denied.


text:
    STATE of Louisiana v. Robert A. McDANIEL.
    No. 84-K-1525.
    Supreme Court of Louisiana.
    Oct. 5, 1984.
   In re McDaniel, Robert A., applying for writ of review to the Court of Appeal, Fourth Circuit, No. KA-1651; Parish of Orleans, Criminal District Court Div. “D”, No. 297-951.

Denied.


text:
    STATE of Louisiana v. Solomon BIRDSONG, Jr.
    No. 84-K-1528.
    Supreme Court of Louisiana.
    Oct. 5, 1984.
   In re Solomon Birdsong, Jr., applying for writ of certiorari to the Court of Appeal, Second Circuit, No. 16176-KA; Parish of Caddo, First Judicial District Court, Div. “A”, No. 120403.

Prior report: 452 So.2d 1236.

Denied.


text:
    STATE of Louisiana v. Rudolph WILSON, Sr.
    No. 84-KO-1547.
    Supreme Court of Louisiana.
    Oct. 5, 1984.
   In re Wilson, Rudolph Sr., applying for writ of habeas corpus, mandamus, temporary restraining order to the Court of Appeal, Fourth Circuit, No. KA-1808; Parish of Orleans, Criminal District Court, Div. “I”, No. 296-406.

Prior report: 454 So.2d 383.

Denied.


text:
    STATE of Louisiana v. Sean BROGAN.
    No. 84-K-1578.
    Supreme Court of Louisiana.
    Oct. 5, 1984.
   In re Brogan, Sean S., applying for writ of certiorari, writ of review to the Court of Appeal, Third Circuit, No. CR83-667; Parish of Rapides, 9th Judicial District Court, Div. “D”, No. 204562.

Prior report: 453 So.2d 325.

Denied.


text:
    STATE of Louisiana v. Darryl HAWTHORNE.
    No. 84-K-1609.
    Supreme Court of Louisiana.
    Oct. 5, 1984.
   In re Hawthorne, Darryl, applying for writ of certiorari to the Court of Appeal, Fourth Circuit, No. KA-1707; Parish of Orleans, Criminal District Court, Div. “J”, No. 297-215.

Prior report: 454 So.2d 285.

Denied.


text:
    STATE ex rel. Albert GOLDSMITH v. Charles C. FOTI, Jr., Sheriff.
    No. 84-KH-1634.
    Supreme Court of Louisiana.
    Oct. 5, 1984.
   In re Goldsmith, Albert, applying for writ of habeas corpus, Parish of Orleans, Criminal District Court, Div. “J”.

Denied. Relator must first file his application in District Court.


text:
    STATE ex rel. Stanley ZENO v. CLERK OF COURT, 15TH JUDICIAL DISTRICT COURT, PARISH OF LAFAYETTE, State of Louisiana.
    No. 84-KH-1648.
    Supreme Court of Louisiana.
    Oct. 5, 1984.
   In re Zeno, Stanley, applying for writ of mandamus, Parish of Lafayette, 15th Judicial District Court, Div. “D”, No. 37358.

Denied. There is no record of filing in district court.


text:
    STATE ex rel. Charles JONES v. Alvin V. OSER, Judge, Section J, Criminal District Court.
    No. 84-KH-1673.
    Supreme Court of Louisiana.
    Oct. 5, 1984.
   In re Jones, Charles, applying for writ of mandamus, Parish of Orleans, Criminal District Court, Div. “J”, No. 286-139.

Denied.


text:
    STATE ex rel. Warren BROOKS v. Hon. Frank A. MARULLO, Judge, Criminal District Court, Section “D”.
    No. 84-KH-1674.
    Supreme Court of Louisiana.
    Oct. 5, 1984.
   In re Brooks, Warren, applying for writ of certiorari, writ of review, Parish of Orleans, Criminal District Court, Div. “D”, No. 287-322.

Denied.


text:
    STATE ex rel. Joseph DAIGLE v. STATE of Louisiana.
    No. 84-KH-1704.
    Supreme Court of Louisiana.
    Oct. 5, 1984.
   In re Joseph Daigle, applying for remedial writs, Parish of Lafayette, 15th Judicial District Court, Div. “H”, No. 46280; Court of Appeal Third Circuit, No. K-84-865.

Denied. Relator must first present his application to the district court and failing to obtain relief there, make further application to the 3rd Circuit, Court of Appeal.


author: PER CURIAM.

text:
    STATE of Louisiana v. Kenneth L. PRESTRIDGE.
    No. K84-796.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 20, 1984.
    J. Michael Small and Kathrine S. Williamson, Small, Small, Williamson & Brocato, Alexandria, for defendant-relator.
    R. Greg Fowler, Asst. Dist. Atty., Alexandria, for plaintiff-respondent.
   PER CURIAM.

The defendant in this case is charged with the crime of first degree murder and faces the possibility of the death penalty. The evidence presented with defendant’s writ application, which includes evidence that this case has already received extensive pretrial publicity, establishes a reasonable likelihood that defendant’s right to a fair trial will be substantially prejudiced by a hearing open to the press and public of defendant’s motion to suppress confessions, admissions or inculpatory statements. As stated in State v. Birdsong, 422 So.2d 1135 (La.1982):

“... Our Code of Criminal Procedure has built-in safeguards not afforded to persons accused of lesser crimes which impose less severe penalties. Hence, we should be overcautious when considering the due process rights of a person accused of a capital offense. Defendant’s right to a fair trial can be protected from the adverse effects of pretrial publicity by simply closing the suppression hearing to the public and press who do not have an enforceable right to be present.” (footnote omitted).

For these reasons, the ruling of the trial judge denying defendant a closed pretrial suppression hearing on the motion to suppress is reversed. Defendant’s motion to close the hearing to the public and press is granted. The case is remanded to the district court for further proceedings.


author: EDWARDS, Judge.

text:
    Kenneth NEWFIELD v. William GRUBER and Frank Bua, d/b/a Food Factory, Inc.
    No. 83-CA-0993.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 9, 1984.

      John J. Burke, Fernand L. Laudumiey, III, New Orleans, for plaintiff, appellee.
    Irving B. Shnaider, New Orleans, for defendants, appellants.
    Before EDWARDS, SHORTESS and SA-VOIE, JJ.
   EDWARDS, Judge.

From a judgment dismissing a suit to annul a previously rendered judgment allegedly obtained through ill practices, plaintiffs appeal. We affirm.

John Burke confirmed a default judgment on February 24, 1981, in an action for unpaid wages filed a year earlier on February 21, 1980, on behalf of Kenneth New-field against William Gruber and Frank Bua, doing business as Food Factory, Inc. Without moving for a new trial or appealing, Gruber and Bua instituted the present action to annul that judgment, which they allege was obtained through “ill practices” in violation of LSA-C.C.P. art. 2004.

At trial they attempted to prove that Mr. Burke entered the default judgment after entering into settlement negotiations with their attorney, James Conner, and agreeing not to take a default without first notifying Conner and giving him an opportunity to file a responsive pleading. The trial judge, unpersuaded by their evidence, dismissed their suit, ruling that they had failed to carry their burden of proof.

The primary issue on appeal is whether the trial judge erred in dismissing plaintiffs’ suit. A secondary issue is whether the trial judge erroneously admitted hearsay testimony into evidence over the objection of their counsel.

Confirming a default without prior notice to the opposing counsel is not an ill practice under article 2004 unless plaintiff’s attorney agrees to give his opponent notice before taking the default or leads him to believe notice will be given by pretending to negotiate a settlement. See Albert v. Lirette, 394 So.2d 761 (La.App. 4th Cir.1981) and cases cited therein.

But whether or not in this case Burke made the alleged agreements with Conner or misled him is a question of fact subject to the rule of Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). Thus, in the absence of manifest error, the trial judge’s finding that the plaintiffs failed to carry their burden should not be disturbed on appeal.

According to Burke, who testified at trial, of the five conversations he had with Conner before confirming the default, none of which were confirmed in writing, only the first concerned a settlement offer. The remaining four concerned Burke’s repeated attempts to get Conner to file an answer.

In their first conversation, which took place before Christmas in 1979 shortly after Burke had sent Gruber and Bua a demand letter for Newfield’s unpaid wages, Conner made a settlement offer of $500 in cash plus a $2700 unsecured promissory note in exchange for a release of New-field’s laborer’s lien. Burke rejected this as unreasonable. In their second conversation, on or about February 15, Burke called to inform Conner that he was going to file suit, which he did on February 21, 1980.

Some time in late March, Conner called to inform Burke that he would be representing the defendants in the upcoming suit, but needed additional time to answer because of a scheduled knee operation. Burke agreed and asked Conner to call as soon as he was “back on his feet.”

When he had not heard from him by April, Burke called Conner and requested him to file an answer. Conner assured him that he would, but • in late June Burke called again and repeated his request because Conner had not yet filed any pleading. According to Burke, in this last communication Conner expressed dissatisfaction over not being paid anything for his services except a regular breakfast at Mandy’s, the defendants’ restaurant.

Burke did not hear from or contact Conner again until he entered a preliminary default on February 7, 1981.

Conner testified, on the other hand, that he and Burke had had several conversations about settlement possibilities, and that although nothing substantive materialized after Burke rejected the first offer, he did not file an answer because he thought negotiations were still under way. He insisted that Burke never requested him to file an answer, but he did not testify that Burke had specifically agreed to forbear from taking a default before giving him notice.

At the conclusion of the trial, the judge said,

We have a classic case here where nobody is producing any letters to each other.
[The] Court finds it is just as likely the way Mr. Burke says it happened as the way Mr. Conner said it happened. In that case, Mr. Bua doesn’t win this petition to annul the judgment.

We agree. The testimony above indicates perhaps careless office practices and mis-communication but it does not .establish the kind of ill practice anticipated by article 2004. The trial judge’s finding that the plaintiffs failed to carry their burden, based upon a reasonable evaluation of credibility, is not clearly erroneous.

As for the allegedly inadmissable hearsay, we have been unable to find, nor has appellants’ counsel seen fit to show us, where in the record the error occurred. Counsel argues that the trial judge allowed Conner to testify over his objection about the substance of a conversation between Conner’s secretary and Burke. The record in fact indicates just the opposite. Appellants’ counsel himself attempted to elicit the hearsay testimony from Conner, but the trial judge sustained, not his, but his opponent’s objection and ruled the testimony inadmissable.

We note that in both his direct and cross examinations Conner made several references to notes taken by his secretary concerning communications from Burke to Conner’s office. The only objection to any of these references was the one made by appellee’s counsel mentioned above. Since appellants made no objections at trial, they cannot make them now on appeal. Cf Orgeron v. Sweatman, 367 So.2d 1199 (La.App. 4th Cir.1978).

For the foregoing reasons, the judgment of the trial court is affirmed at appellants’ cost.

AFFIRMED.


author: ALFORD, Judge.

text:
    Jasper L. BARBERA v. Linda Roberthon BARBERA.
    No. 83 CA 1000.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 9, 1984.
    Jerald P. Block, Thibodaux, for Jasper L. Barbera.
    Daniel A. Cavell, Thibodaux, for Linda Roberthon Barbera.
    Before WATKINS, CRAIN and ALFORD, JJ.
   ALFORD, Judge.

This is an appeal from a judgment dismissing a rule to reduce child support brought on behalf of plaintiff-appellant, Jasper L. Barbera. Appellant and defendant-appellee, Linda Roberthon Barbera, were divorced on March 8, 1982, with two children having resulted from the marriage. Appellant was initially ordered to pay child support in the amount of $550.00 per month per child. Additionally, appellant was ordered to maintain full medical insurance on each child and to pay each child’s private school tuition.

These parties have been before the trial court on numerous occasions on a variety of rules not germane to this appeal. Suffice it to say that appellant has been granted one previous reduction in child support in the total amount of $100.00 per month by judgment dated December 21, 1982. Appellant filed the rule to reduce child support which we are concerned with in this appeal on April 7, 1983, alleging a substantial change in circumstances since the December, 1982, reduction. After hearing the evidence, the trial judge determined that no reduction was warranted. We affirm.

Appellant argues that his net income has been significantly decreased due to economic conditions beyond his control, that Mrs. Barbera’s income has not been so affected, and that the needs of his children have actually decreased since the Decern-ber 21, 1982, reduction. The trial court, on the other hand, specifically found that while appellant’s income had been reduced, it was still sufficient to meet the child support award given that appellant produced no evidence to show that his monthly expenses exceeded the remainder of his income after the support payments were subtracted. Additionally, the trial court found that the children’s needs had not decreased, but rather, had increased due to the general inflationary trends of our economy. The trial court went on to note that appellant, when questioned by the court, admitted that his true concern was with the way the former wife was utilizing the child support payments, rather than with the amount of the payments.

LSA C.C. art. 227 provides, “[fathers and mothers, by the very act of marrying, contract together the obligation of supporting, maintaining, and educating their children.” As we noted in Nelms v. Nelms, 413 So.2d 1341, 1342 (La.App. 1st Cir.1982), writ denied, 415 So.2d 944 (La.1982),

The amount of child support is determined by the wants of the child and the circumstances of the parent who is to pay. La.C.C. Arts. 227, 231. Therefore, in making a determination of child support, the trial court must consider the totality of all pertinent circumstances. Marcus v. Burnett, 282 So.2d 122 (La. 1973); Prudhomme, supra; Moss v. Moss, 379 So.2d 1206 (La.App. 3d Cir.1980); LaBalle v. LaBalle, 352 So.2d 330 (La.App. 4th Cir.1977).

Additionally, trial courts are afforded considerable discretion in fixing the amount of child support. Ducote v. Ducote, 339 So.2d 835 (La.1976).

A careful review of the record reveals that the trial judge did not abuse his much discretion in this matter. These parties had been before the judge on three separate occasions and he was extremely familiar with the various circumstances of the case. In addition to the trial judge’s specific findings of fact mentioned above, it was noted by the court that Mr. Barbera was in the fifty percent tax bracket and that Mrs. Barbera’s employment contract with the local school system would expire in August of 1984. Given the totality of the circumstances of this case, we are of the opinion that the trial court was correct in dismissing appellant’s rule to reduce child support. The fact that appellant is not satisfied with the way in which his former wife is utilizing his child support payments is not determinative in this case. As noted in McManus v. McManus, 428 So.2d 854 (La.App. 1st Cir.1983), the party in whose favor a child support judgment is awarded is entitled to determine how the funds will be disbursed.

Therefore, for the foregoing reasons, the judgment of the trial court dismissing the rule to reduce child support brought on behalf of plaintiff-appellant, Jasper L. Barbera, is hereby affirmed. Appellant is to pay costs of this appeal.

AFFIRMED.

      . Prudhomme v. Prudhomme, 381 So.2d 906 (La.App. 3rd Cir.1980), writ denied, 383 So.2d 782 (La.1980).


author: LANIER, Judge.

text:
    Percy T. THOMAS v. Larry D. KNIGHT.
    No. 83 CA 1045.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 9, 1984.

      Donald Fendlason, Bogalusa, for plaintiff.
    Delos Johnson, Franklinton, for defendant.
    Before COLE, CARTER and LANIER, JJ.
   LANIER, Judge.

This is a suit by the lessor of immovable property seeking to have the lessee evicted from the property. The trial court rendered judgment terminating the lease agreement between the parties and ordering the lessee to vacate the premises. The lessee took this appeal.

FACTS

On May 1, 1973, Percy Thomas leased 53.78 acres of farmland in Washington Parish, Louisiana, to Larry Knight. The written lease agreement provides for a primary term of five years, ending April 30, 1978. The lease also contains an option to renew which reads as follows:

LESSOR grants unto LESSEE the right to renew this lease at the same yearly rental of Fifteen and no/100 ($15.00) Dollars per acre when this lease period is ended.

On May 3, 1978, after the primary term of the lease had expired, Knight sought to exercise his option to renew the lease. A dispute arose concerning whether Knight had timely exercised the option. The Twenty-Second Judicial District Court in Thomas v. Knight, Docket No. 44376-D, held that Knight had timely exercised his option to renew for a five year period from May 1, 1978, to April 30, 1983. Apparently, this decision of the trial court was not appealed.

By letter dated May 11, 1981, Thomas notified Knight that the lease would be terminated on April 30,1983, and would not be renewed. Again, by letter dated March 17, 1983, Thomas notified Knight of his intention to terminate the lease at the end of the option period. Knight attempted to renew the lease for another five year period and sent Thomas a cashier’s check to pay for one year’s rental. By letter dated May 4, 1983, Thomas rejected Knight’s renewal offer, returned Knight’s check and demanded that Knight vacate the premises within five days of receipt of his letter. When Knight refused to vacate the premises, Thomas brought this suit to have Knight evicted.

INTERPRETATION OF LEASE

The trial judge in his oral reasons for judgment stated that “[t]he Court finds that there is no language to talk about continuing this lease of five year intervals forever.” Knight contends that the trial judge erred in this finding because two provisions in the lease indicate that more than one option period was contemplated by the parties. These provisions read as follows:

This lease is to run for a period of five (5) years beginning May 1, 1973, and ending April 30, 1978, with options as stipulated hereinafter.
LESSOR further grants unto LESSEE the exclusive right and option to purchase this 53.78 acres of land should LESSOR decide to sell same during the lease period, or any of the option lease periods following the primary term of the lease at a price of Five Hundred and no/100 ($500.00) Dollars per acre. (Emphasis ours).

The courts are bound to give legal effect to all written contracts according to the true intent of the parties, and this intent is to be determined by the words of the contract when these are clear, explicit and lead to no absurd consequences. La. C.C. arts. 1901 and 1945; Campesi v. Margaret Plantation, 417 So.2d 1265 (La.App. 1st Cir.1982), writ denied, 422 So.2d 163 (La.1982). This rule is applicable to contracts of lease. Brignac v. Boisdore, 272 So.2d 463 (La.App. 4th Cir.1973), aff'd, 288 So.2d 31 (La.1973); Dikert v. Ruiz, 231 So.2d 633 (La.App. 4th Cir.1970). The meaning and intent of the parties to the written contract in such cases must be sought within the four corners of the instrument and cannot be explained or contradicted by parol evidence. La.C.C. art. 2276; Tauzin v. Claitor, 417 So.2d 1304 (La.App. 1st Cir.1982), writ denied, 422 So.2d 423 (La.1982). However, when the terms of a written contract are susceptible to more than one interpretation, or there is uncertainty or ambiguity as to its provisions, or the intent of the parties cannot be ascertained from the language employed, or fraud is alleged, parol evidence is admissible to clarify the ambiguity or show the intention of the parties or prove the fraud. La.C.C. arts. 1847 et seq.; Dixie Campers, Inc. v. Vesely Company, 398 So.2d 1087 (La.1981).

The lease provision granting the option to renew the lease appears to give only one such option. It grants “the right to renew ... when this lease period is ended.” The lease period referred to is the primary term which ended on April 30, 1978. However, other provisions of the lease refer to “options” and “option lease periods”, indicating more than one option period. The contradictory lease provisions are susceptible to more than one interpretation, and the intent of the parties cannot be determined from the language used in the lease. The district court correctly received parol evidence to resolve the dispute.

At the hearing on the rule to show cause, Knight was called under cross-examination by plaintiff and testified that the lease does not state the number of options available, but “it only lists that the option periods as per annum, meaning more than one.” The option period did not give a termination date, and Knight’s attorney, Delos Johnson, prepared the lease agreement. Knight’s initial intent was to purchase the property; Thomas refused to sell, but agreed to lease the property to him. Thomas also agreed that, if he decided to sell, Knight would have the right of first refusal to purchase the property. Knight also testified that the property was critical to his dairy farm, and as long as he was in the dairy business and Thomas owned the property, he felt he had a legal right to renew the lease.

Thomas testified he “agreed to lease him the land for five years. But as far as that, that was it. There wasn’t anything else said about any longer than that, not at that time. I didn’t want my land tied up forever.”

The ruling of the district court judge indicates he accepted the testimony of Thomas which proved as a fact that the parties did not intend'; the lease to have unlimited renewal options. This factual finding is not clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). However, this factual finding does not resolve the issue of how many renewal options were contemplated.

Although the lease provisions relied on by Knight indicate that more than one option to renew is contemplated, these provisions do not state precisely how many. The lease provisions are ambiguous on that question, and the parol evidence is not determinative. The evidence shows that Knight’s attorney prepared the lease agreement. If the intent of the parties cannot be ascertained from the terms of a written contract or the parol evidence about that intent, ambiguous contract provisions will be construed against the party preparing the contract. La.C.C. arts. 1957 and 1958; Aguillard’s Enterprises, Inc. v. Smith, 439 So.2d 1158 (La.App. 4th Cir.1983), writ denied, 444 So.2d 1224 (La.1984); Ericksen, Krentel and Barre v. Pizzolato Ford-Lincoln-Mercury, Inc., 432 So.2d 386 (La. App. 1st Cir.1983). Applying this rule of construction, we find that the lease provides one option of renewal. The lease expired by its own terms when the option period ended, and Thomas was entitled to have Knight evicted at that time.

DECREE

For the foregoing reasons, the judgment of the district court is correct and is affirmed at appellant’s costs.

AFFIRMED.

      . La.C.C.P. art. 4735. The appeal was not timely taken as a suspensive appeal but was main-tamed as a devolutive appeal. Thomas v. Knight, 442 So.2d 750 (La.App. 1st Cir.1983).


author: COLE, Judge. CARTER, Judge,

text:
    BICKHAM, INCORPORATED v. Otis GRAVES and Billy Joe Graves.
    No. 83 CA 1058.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 9, 1984.

      Richard W. Watts, Franklinton, for plaintiff-appellee.
    Ray W. Breland, Bogalusa, for defendants-appellants.
    Before COLE, CARTER and LANIER, JJ.
   COLE, Judge.

The issue raised in this petitory action is whether or not the trial court erred in failing to recognize defendants' claim of thirty year acquisitive prescription.

Defendant Otis Graves and his brother, defendant Billy Joe Graves, reside in a house and mobile trailer, respectively, on a small portion of a larger tract of land consisting of approximately 39 acres. The entire tract, located in Washington Parish, was acquired in 1926 by the defendants’ paternal grandparents, and in 1978 was owned in indivisión by some 29 members of the Graves family including the two defendants. In June of 1978 a suit was filed by several of the co-owners for a partition by licitation. After considering the matter the trial court ordered the partition and the judicial sale of the property. The tract was purchased by plaintiff, Bickham, Incorporated, at a sheriff’s sale on September 12, 1979 for the sum of $26,500. The proceeds of the sale were deposited into the registry of the court for distribution to the various co-owners.

Otis Graves and Billy Joe Graves continued to occupy their respective homes after the sale. In January of 1981, Bickham filed a petitory action, naming the brothers as defendants, requesting the court to declare Bickham owner of the 39 acre tract. Defendants filed an answer and a recon-ventional demand, asking the court to recognize them as owners of the land described in plaintiff’s petition and praying for the recorded sheriff’s deed to be cancelled and erased from the public records. They prayed alternatively that a boundary be fixed between their property and Bick-ham’s property.

After hearing the evidence the trial court rendered judgment in favor of plaintiff, recognizing it as the owner of the entire 39 acre tract. Defendants then filed this appeal, arguing only that the court erred in failing to recognize their title to at least a portion of the disputed property by virtue of thirty year acquisitive prescription.

A plaintiff in a petitory action, when the defendant is in possession of the disputed property, must prove he has acquired ownership from a previous owner or by acquisitive prescription. La.Civ.Code art. 531; La.Code Civ.P. art. 3653. Prior to 1981, Code of Civ.P. art. 3653 stated the plaintiff must “make out his title thereto.” This was interpreted by the courts to mean plaintiff must trace his title back to the sovereign. See Pure Oil Company v. Skinner, 294 So.2d 797 (La.1974). In cases where the adverse parties proved their’title back to a common author, the courts held the title need not be traced beyond this point. See Clayton v. Langston, 311 So.2d 74 (La.App. 3d Cir.1975). Although the language of the Code of Civil Procedure article was changed, it has been held the requirement of tracing the title back to the sovereign (or to the common author) is still essential. Weaver v. Hailey, 416 So.2d 311 (La.App. 3d Cir.1982).

In the present case the trial court stated plaintiff had proved its title sufficiently by tracing it back to a common author. See La.Civ.Code art. 532; Rivet v. Dugas, 377 So.2d 489 (La.App. 4th Cir. 1979). We disagree. The title cannot be traced to a “common author” because after the 1979 sheriff’s sale, defendants had no title whatsoever. Therefore, it was encum-bant upon plaintiff to trace its title back to the sovereign. This was in fact accomplished, as shown by copies of the various transfers affecting the property, starting with the present time, going back to the patent in 1813. Plaintiff’s burden in this regard is not to prove a perfect title but to prove one “apparently good.” Quoting with approval from an earlier case, our Supreme Court, in Badeaux v. Ritre, 382 So.2d 954, 956 (La.1980), held although the plaintiff in a petitory action must succeed on the strength of his own title, and not on the weakness of his adversary’s when the latter has no title at all he cannot, as a trespasser, take advantage of any defect in the former’s muniments of title. It was said, in such cases a title apparently good is all that is required to maintain the petito-ry action.

Once plaintiff has proved his title, the focus is then on defendant’s title. See Garrett v. Ernest, 369 So.2d 713 (La.App. 1st Cir.1979), writ denied, 371 So.2d 1340 (La.1979). Defendants have no “record” title, having been divested of it in 1979. Although they claim they have lived on the property for more than thirty years and therefore have acquired the property by acquisitive prescription, we find absolutely no merit to this argument because it totally ignores the fact that defendants’ interest was sold in 1979. Moreover, prior to 1979, defendants occupied the land not as mere possessors but as actual co-owners. Although his failure to do so is almost incomprehensible, appellants’ attorney makes no mention in his brief of the partition or the judicial sale. In spite of counsel’s unexplainable failure to assess the effect of the judicial sale, the sale is the most crucial fact in this case, because at that time defendants lost their ownership interest. Since the date of the sale they have occupied the property as mere trespassers. Obviously they have not acquired any ownership rights by possessing the property since the sale.

We note also defendants inherited their small undivided interest from their father who died approximately ten years prior to the institution of this petitory action. Their mother died only one and one-half years before trial. Defendants’ “possession” had been as part of the family unit and existed primarily during their minority as they were just 34 and 35 years of age at the time of trial. Under the facts of this case and within the context of their thirty year acquisitive prescription claim, it is doubtful defendants did more than “possess precariously.” This quality of possession does not include the right to prescribe. See La.Civ.Code art. 3490 (in effect prior to January 1, 1983).

For these reasons, the judgment of the trial court is affirmed. Plaintiff has proved its title; defendants’ undivided interest in the property was sold in 1979; defendants have not possessed the property long enough to claim ownership by acquisitive prescription. Appellants are to pay all costs.

AFFIRMED.

CARTER, J., concurs for reasons assigned.

LANIER, J., concurs for the reasons assigned by Carter, J.

CARTER, Judge,

concurring:

We concur in the result reached in the lead opinion, but not with the rationale thereof.

Final judgment was rendered in the proceeding entitled Henrietta Graves Magee, et al. versus Helen Graves Bell, et al., docket number 44,285A of the Twenty-Second Judicial District Court, Parish of Washington on June 22, 1979. Otis Graves and his brother, Billy Joe Graves, were each defendants and ultimately had judgment rendered against them in this suit for partition-by lieitation.

Defendants, Otis Graves and Billy Joe Graves, cannot collaterally attack the judgment and resulting sheriff’s sale. Failure to enjoin this sale constituted a waiver of their right to contest it in the future since the defendants were parties to the suit. LSA-C.C.P. art. 2298; Baker Bank & Trust Company v. Chausse, 393 So.2d 261 (La.App. 1st Cir.1981) writ denied, 397 So.2d 1364 (La.1981). Cf. Guidry v. Cheramie, 354 So.2d 1280 (La.1977). (Also, the defendants have failed to suspensively appeal the partition judgment and apparently have acquiesced in the distribution of the proceeds of the sale.) Since each of these defendants were parties to the suit, all rights they had in the property at the time of the partition sale (including prescriptive ones) were acquired by Bickham. LSA-C. C.P. art. 2371. Since the defendants lost their interest in the property at the judicial sale and had no interest or title to it thereafter, their adverse possession for purposes of acquisitive prescription cannot go back past the date of the partition sale. This is far short of the required thirty years.

Since the defendant at the most “possessed precariously” and actually appear to be “trespassers”, a title apparently good is all that is required to maintain the petitory action. Badeaux v. Pitre, 382 So.2d 954, 956 (La.1980) and cases cited therein. In Badeaux, the court held that the plaintiff in a petitory action must succeed on the strength of his own title and not on the weakness of his adversary’s, but when the latter has no title at all he cannot as a trespasser take advantage of any defect in the former’s muniments of title. In the instant case, plaintiff has made out a title apparently good against these defendants by producing the sheriff’s deed in the partition by licitation and offered into evidence the judgment in said proceeding where they were also defendants.

Under the particular facts and circumstances of this case, we do not agree that it is necessary to dereign title back to the sovereign. Otis Graves and Billy Joe Graves were parties defendant in the partition suit as co-owners of the property of which Bickham claims ownership. The ownership of the property was transferred from the Graves family to Bickham by the judicial sale in the partition suit. The judgment ordering this .sale (and resulting transfer of ownership) has not been contested by the defendants in either the partition suit or this suit. Bickham’s title and ownership come (in part) directly from Otis and Billy Joe Graves pursuant to a judgment that is now final.

In relation to Bickham, the defendants are “previous owners”. La.C.C. art. 531; La.C.C.P. art. 3653(1). In this factual posture, the rule above stated from Badeaux v. Pitre should be applicable. The reason for this rule is set forth in A. Yiannopou-los, 2 Louisiana Civil Law Treatise, Property § 192 at 520 (2nd Ed.1980) as follows:

There is merit to .the idea that a plaintiff with a title that antedates defendant’s possession ought to prevail, despite breaks in the chain of transfers, if the defendant has no title. The view has been expressed that if it were otherwise, a trespasser without any semblance of title might be allowed to ‘take physical possession of another’s property, and should his possession endure for more than a year before it is discovered, any break in the owner’s chain, however ancient, would defeat a petitory action to recover the property.’

The defendants presently have no title to the property and are possessing adverse to Bickham as “trespassers” because they have not possessed long enough to acquire ownership by prescription. Because Bick-ham’s ownership and title comes directly from the defendants and because the defendants did not contest the validity of their own title and/or ownership in the partition suit, they should not be allowed to collaterally attack Bickham’s title by having the right to require dereignment of title back to the sovereign. In the instant case as between the “previous owners” and the present record title holder (as distinguished from third persons), sufficient title has been shown with the partition judgment and judicial sale.

APPENDIX

HENRETTA GRAVES MAGEE, ET AL VERSUS HELEN GRAVES BELL, ET AL

DOCKET NO. 44,285-A

22ND JUDICIAL DISTRICT COURT PARISH OF WASHINGTON

STATE OF LOUISIANA

JUDGMENT

This cause having come on this date pursuant to previous assignment,

PRESENT: Clayton S. Knight, Attorney for Plaintiffs;

Richard W. Watts, Court appointed attorney for Lillie Graves Graves, Gloria Nell Graves, Leroy Graves, Wade Graves, Norma Lee Graves, Vernie Mae Graves, Gladys Bickham Graves, Evette Graves, Georgia Lee Graves, Perry Graves, Michael Graves, Elvin Graves, Otis Graves, and Albert Graves.

When after hearing of the law, evidence and argument of counsel, the court finding the same to be in favor of plaintiffs:

IT IS ORDERED, ADJUDGED AND DECREED, that Nurcelia Graves Cotton, Vonita Graves Magee, Henretta Graves Magee, Home Loan Company of Franklin-ton, Inc., Helen Graves Bell, Lillie Graves Graves, Gloria Nell Graves, Ida Mae Graves Davis, Lois Graves Magee, Otis Graves, Otha Graves, Jenette Graves Hart, Myrtis Graves, Billy Joe Graves, Leroy Graves, Albert Graves, Ralph Graves, Larry Graves, Wade Graves, Norma Lee Graves, Vernie Mae Graves, Gladys Bick-ham Graves, Evette Graves, Georgia Lee Graves, Perry Graves, Michael Graves, Elvin Graves, Aline Graves, Alma Graves Fields a/k/a Irma Lee G. Fields and Roxie Bickham Graves are hereby declared to be the owners in indivisión of the hereinafter described property and that it is hereby further ordered that the property be partitioned by licitation and that the same be advertised and sold at public sale for cash, by the sheriff of this parish, in order to effect the partition thereof, after advertisement required by law for such sale under execution; and that the parties be referred to a Notary Public for the division of the proceeds with the property being more specifically described as follows, to-wit:

Beginning at the Southeast corner of William Roberts Headright 61, Township 1 South, Range 10 East, and run North 0 degrees 15 minutes West along old line 12 chains and 40 links to old corner; thence West 15 chains and 15 links along old line to old corner; thence North 0 degrees 15 minutes East 18 chains and 50 links; thence North 70 degrees 0 minutes West 8 chains and 40 links; thence South 28 chains and 81 links to old South line of section; thence South 78 degrees 0 minutes East 23 chains and 84 links to place of beginning. Containing 40 acres, all in Section 61, Township 1 South, Range 10 East, Washington Parish, Louisiana.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED, that the proceeds of the sale be deposited into the registry of this court.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED, that the fee of the attorney appointed to represent the absentee and non-resident heirs, Honorable Richard W. Watts, is hereby established in the amount of Two Hundred Fifty & no/100 ($250/00) Dollars, with the same to be paid from those proceeds due to those non-resident and absentee heirs.

JUDGMENT RENDERED in open court on the 18th day of June, 1979.

JUDGMENT READ, AND SIGNED, at Franklinton, Louisiana, on this 22nd day of June, 1979.

/s/ Hillary J. Crain Honorable Hillary J. Crain

District Judge, Division “A”

      . The property is described in accordance with a recent survey as follows:
      "38.81 acres of land located and situated in Headright 61, Township 1 South, Range 10 East, St. Helena Meridian, Washington Parish, Louisiana, more particularly described as follows, to-wit:
      Commence at the Southeast corner of Head-right 61, Township 1 South, Range 10 East and run North 78 deg. 27 min. west, 1573.4 feet to corner; thence run North 00 deg. 14 min. East 1901.5 feet to corner; thence run South 71 deg. 01 min. East, 550.5 feet to corner; thence run South 00 deg. 15 min. West, 1221.0 feet to corner; thence run East 999.9 feet to corner; thence run South 01 deg. 19 min. East, 816.6 feet to the POINT OF BEGINNING.”

      . Home Finance Company of Franklinton, Inc. was also listed in the partition suit as an owner of the property. The suit is entitled Henretta Graves Magee, et al. versus Helen Graves Bell, et al., docket number 44.285A, 22nd Judicial District Court, Parish of Washington.

      . However, we note a plaintiff in a petitory action (or in other actions involving ownership of immovable property) does not prove a title "apparently good” by proving only that he obtained the property by means of a valid deed. In other words, plaintiff in the present case cannot prevail merely by proving it purchased the property at a valid sheriffs sale; it must prove the title by tracing it back to the sovereign, as set forth in Pure Oil v. Skinner, supra. See Tassin v. Rhynes, 366 So.2d 580 (La.App.3d Cir.) writ denied, 368 So.2d 123 (La.1978).

      . See copy of judgment attached.

      . See footnote 1.

      . The judicial sale was on September 12, 1979. See La.R.S. 9:5622 and 5642.

      . We do not express an opinion on whether or not the rule of Pure Oil Company v. Skinner, 294 So.2d 797 (La.1974) has been continued in La. C.C. art. 531 as amended by Act 180 of 1979 and La.C.C.P. art. 3653 as amended by Act 256 of 1981. See the dissent by Judge Doucet in Weaver v. Hailey, 416 So.2d 311 (La.App. 3rd Cir.1982), writ not considered, 420 So.2d 159 (La.1982). We believe the Badeaux v. Pitre rule to be a judicially recognized exception to Articles 531 and 3653.


text:
    Donna Elaine ELLIOTT, et al. v. Priscilla Ann MERRITT, et al.
    No. 83 CA 1065.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 9, 1984.
    Writ Denied Dec. 7, 1984.
    Robert R. Faucheux, Jr., Reserve, for Estate of Howard M. Gilbert.
    F. Smith Knobloch, Thibodaux, for Estate of William S. Elliott.
    Walter C. Thompson, Jr., Sessions, Fish-man, Rosenson, Boisfontaine & Nathan, New Orleans, for Indiana Lumberman’s Mut. Ins. Co.
    Warren D. Ponder, D.O.T.D., Baton Rouge, for State of La.
    Grady C. Weeks, Authement, Weeks & Larke, Houma, for State of La., Dept, of Transp. & Development, Office of Hwys, third party plaintiffs.

      Alfred Smith Landry, Landry, Watkins & Bonin, New Iberia, for Olivier Chevrolet, Inc. and Liberty Mut. Ins. Co.
    David H. Stiel, III, Aycock, Horne, Caldwell, Coleman & Duncan, Franklin, for St. Mary Parish Police Jury.
    Before COLE, CARTER and LANIER, JJ.
   LANIER, Judge.

This is a suit for damages in tort for wrongful death which arose from a one car accident in which two of the passengers were killed.

PROCEDURAL FACTS

On January 20, 1981, a one automobile accident occurred in St. Mary Parish near Morgan City, Louisiana, when a 1978 Honda automobile went out of control on Lake Palourde Road and plunged into Bayou Boeuf. The driver of the vehicle was Priscilla Ann Merritt. Two passengers in the vehicle, William Stafford Elliott and Howard Morris Gilbert, sustained fatal injuries in the accident.

Suit was filed and one of the defendants named in the suit was Olivier Chevrolet, Inc. (Olivier), the owner of the vehicle driven by Merritt.

Olivier filed a peremptory exception claiming the petition stated no right or cause of action which would support a judgment against it. A hearing on the exception was held on August 6, 1982. A second supplemental and amending petition was then filed on August 17, 1982, in which it was alleged “[tjhat Oliver Chevrolet, Inc. was the owner of the vehicle and failed to supervise the proper operation of said vehicle when they authorized the vehicle to be used by Priscilla Ann Merritt.”

Subsequently, on September 2, 1982, judgment was rendered sustaining Olivier’s exception based on plaintiffs “failure to allege facts showing Olivier Chevrolet’s liability to plaintiffs.” The district court ordered plaintiffs’ suit dismissed as to Olivier “upon their failure to file amending pleadings, within fifteen days of the date of this judgment, establishing a cause of action.” La.C.C.P. art. 934.

Plaintiffs then filed a third supplemental and amending petition. However, no additional allegations of liability were made against Olivier. On May 24, 1983, the district court rendered a judgment dismissing plaintiffs’ claim against Olivier because of plaintiffs’ failure to amend their petition, within fifteen days of the “September 9,1982” judgment, to state a cause of action against Olivier. Plaintiffs filed a motion for a new trial alleging the judgment of dismissal was contrary to the law and evidence. The motion was denied by judgment rendered June 10, 1983. From this judgment, plaintiffs took a suspensive appeal.

CAUSE OF ACTION

The peremptory exception raising the objection of no cause of action is utilized to question whether or not any remedy is afforded by law to the plaintiff under the allegations of the petition. Ward v. Pennington, 434 So.2d 1131 (La.App. 1st Cir.1983), writs denied, 438 So.2d 572, 576 (La.1983); Batson v. Cherokee Beach and Campgrounds, Inc., 428 So.2d 991 (La. App. 1st Cir.1983), writ denied, 434 So.2d 1092 (La.1983). The exception must be decided upon the face of plaintiffs petition alone, since no evidence may be introduced in its support. La.C.C.P. art. 931. Further, all well-pleaded facts are to be accepted as true, with all doubts resolved in favor of the sufficiency of the petition. Sanborn v. Oceanic Contractors, Inc., 448 So.2d 91 (La.1984); Batson, 428 So.2d at 992.

In the instant case, the only allegations of liability made against Olivier are contained in plaintiffs’ second supplemental and amending petition, in which it is alleged “[t]hat Oliver Chevrolet, Inc. was the owner of the vehicle and failed to supervise the proper operation of said vehicle when they authorized the vehicle to be used by Priscilla Ann Merritt.” From these allegations, we must determine whether the law affords plaintiffs a remedy against Olivier.

Plaintiffs have made two factual allegations against Olivier: (1) Olivier was the owner of the vehicle; and (2) Olivier failed to supervise the proper operation of the vehicle by Merritt. These facts must be accepted as true.

The owner of a vehicle is not liable for the damages caused by some other person driving his vehicle unless there is some relationship between the parties which makes the negligence of the driver imputable to the owner. As a matter of law the fact of ownership does not per se create a legal responsibility by the owner. Pope v. City of Baton Rouge, 449 So.2d 1070 (La.App. 1st Cir.1984); Williams v. Sharlow, 388 So.2d 809 (La.App. 4th Cir.1980). Negligence can be imputed to an innocent party only when he is legally responsible for the torts of the negligent party. Ruthardt v. Tennant, 252 La. 1041, 215 So.2d 805 (1968); Carter v. Salter, 351 So.2d 312 (La.App. 3rd Cir.1977), writ denied, 352 So.2d 1045 (La.1977); Umbehagen v. Liberty Mutual Insurance Co., 348 So.2d 122 (La.App. 4th Cir.1977), writ denied, 350 So.2d 1209 (La.1977). This principle of law was set out in Gaspard v. Lemaire, 245 La. 239, 158 So.2d 149, 153 (1963), wherein the Supreme Court stated:

[T]he negligence of one person cannot be imputed to another person not guilty of personal negligence in the absence of a legal obligation on the part of the latter to respond for the fault of the former. (Emphasis added).

In the present case, plaintiffs’ petition contains no factual allegations which would impute the negligence of the driver, Merritt, to the owner of the vehicle, Olivier. Plaintiffs allege that Olivier, as owner of the vehicle, failed to supervise the operation of the vehicle. However, plaintiffs made no allegations establishing a legal obligation or duty on Olivier to supervise the driver of its vehicle. No master-servant, parent-child or custodial relationship is alleged, nor does the petition contend that the owner granted authority to use the vehicle when it knew the driver was incapable or incompetent to operate it. Without an allegation creating a legal responsibility or obligation on Olivier, plaintiffs have failed to state a cause of action for which Olivier could be held liable for Merritt’s negligence. Cf McCoy v. Chambers, 403 So.2d 838 (La.App. 2nd Cir.1981).

The district court gave plaintiffs ample time in which to amend their petition to state a cause of action. Since plaintiffs failed to do so, the district court was correct in dismissing the petition. La.C.C.P. art. 934; Dunaway Realty Company, Inc. v. Pulliam, 364 So.2d 198 (La.App. 1st Cir.1978).

DECREE

For the foregoing reasons, the judgment of the district court is correct and is affirmed at the appellants’ costs.

AFFIRMED.

      . Plaintiffs' petition stated no allegations of liability against Olivier, other than naming it as a defendant.

      . Plaintiffs had previously filed an amended petition on August 5, 1982. However, no allegations of liability were made against Olivier therein.

      . The judgment of dismissal refers to the "Court’s ruling issued September 9, 1982”; however, the judgment on the exception was actually rendered on' September 2, 1982.

      . Plaintiffs’ motion for appeal states that "plaintiffs’ desire to appeal suspensively from the final judgment rendered in the above cause on the 10th day of June, 1983” (judgment denying the motion for a new trial). An order denying a motion for a new trial is a nonappealable judgment. Miller v. Chicago Insurance Company, 320 So.2d 134 (La.1975); Succession of Washington, 380 So.2d 154 (La.App. 1st Cir.1979); Jackson v. Watson, 360 So.2d 582 (La.App. 4th Cir.1978), writ denied, 362 So.2d 1389 (La.1978). However, it is clear from the record and from plaintiffs’ brief on appeal that they actually intended to appeal the judgment of dismissal rendered May 24, 1983. Therefore, we will treat this appeal as having been taken from the judgment of dismissal. Cf. Smith v. Hartford Accident and Indemnity Company, 223 So.2d 826 (La.1969).


text:
    Donald Wayne KNIGHT v. PARISH NATIONAL BANK, et al.
    No. 83 CA 1067.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 9, 1984.
    M. Reggie Simmons, Franklinton, for plaintiff.
    Ben W. Lightfoot, Baton Rouge, for American Druggists Inc.
    Edward Griffis, Bogalusa, for Parish Nat. Bank.
    Before GROVER L. COVINGTON, LOT-TINGER and PONDER, JJ.
   The question before this Court is whether a divorced husband can sue his judgment creditor and the sheriff for the homestead exemption portion of funds derived from seizing and selling under a writ of fieri facias, a tract of land which formed a part of the community property between him and his divorced wife, where she and the children, but not the former husband, were living on the property at the time of the seizure and sale, and she had duly executed a waiver of the homestead exemption.

We hold that under the circumstances of this case only the former wife was entitled to the homestead exemption under the law, and she alone was the person who could waive the homestead exemption, which she did.

The statute, LSA-R.S. 20:1, exempts only the “bona fide homestead.” This property was the “bona fide homestead” of Mrs. Knight, not of Mr. Knight. Under the facts presented in this case, Mrs. Knight, as the head of the family residing with her children on the property had the right and authority, pursuant to LSA-R.S. 20:1(D), to waive the homestead exemption. For the reasons assigned, the judgment of the trial court is affirmed at plaintiff-appellant’s costs.

AFFIRMED.

      . Plaintiff sued the bank as seizing creditor, the sheriff as the officer effecting the seizure and sale, the sheriffs insurer and plaintiffs former wife.

      . Custody of the children was granted to the wife in the divorce proceedings.

      . LSA-R.S. 20:1 provides (in part)
      A. The bona fide homestead, consisting of a tract of land or two or more tracts of land with a residence on one tract and a field, pasture, or garden on the other tract or tracts, not exceeding one hundred sixty acres, buildings and appurtenances, whether rural or urban, owned, and occupied by any person, is exempt from seizure and sale under any writ, mandate or process whatsoever, except as provided by Subsections C and D of this Section. This exemption extends to fifteen thousand dollars in value of a homestead. It shall extend to the surviving spouse or minor children of a deceased owner and shall apply when the homestead is occupied as such and title to it is in either the husband or wife but not to more than one homestead owned by the husband or wife.

      . LSA-R.S. 20:1(D) states:
      D. The right to sell voluntarily any property that is exempt as a homestead shall be preserved; but no sale shall destroy or impair any rights of creditors thereon. Any person entitled to a homestead may waive same, in whole or in part, by signing a written waiver thereof; provided, that if the person is married, and not separated from bed and board from the other spouse, then the waiver shall not be effective unless signed by the latter; and all such waivers shall be recorded in the mortgage records of the parish where the homestead is situated. The waiver may be either general or special, and shall have effect from the time of recording.


text:
    John B. HOWES v. Elsas L. ROCQUIN.
    No. 83 CA 1123.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 9, 1984.

      Robert W. Troyer, Ponchatoula, for plaintiff-appellee.
    Michael Tregle, Hammond, for defendant-appellant.
    Before WATKINS, CRAIN and ALFORD, JJ.
   ALFORD, Judge.

Defendant, Elsas L. Rocquin, appeals a judgment awarding damages to plaintiff, John B. Howes, for the cutting, without permission, of timber located on plaintiffs property.

Rocquin owns a tract of land north of and adjacent to Howes’ property in Tangi-pahoa Parish (see appended map). In approximately the first week of June 1976, Rocquin contracted with Mr. Cleveland Wells to clear by bulldozing some of Roe-quin’s land.

Rocquin testified that he told Wells to start clearing from the southeast corner of his property and then work back toward the highway. Rocquin stated that he showed Wells a survey stake at the southeast corner of the Rocquin property, told Wells that they would find the other stake to the west later, and then left. However, Wells cleared some of Howes’ property and leveled the spoil bank on Howes’ property at the canal.

The trial court awarded Howes $1,487.50 for the value of the timber taken from his land, $700.00 as costs for restoring the canal spoil bank and burying trash, and $2,500.00 for loss of aesthetic value, making a total award of $4,687.50. Costs were assessed against Rocquin.

Rocquin brought this appeal, alleging (1) that the trial court improperly assessed damages for the value of the timber involved, (2) that the trial court erred in awarding damages for loss of aesthetic value, and (3) that Howes failed to establish how much of the cleared land was his property.

As to the court’s valuation of the timber cut from Howes’ property, the controlling statute is LSA R.S. 56:1478.1, which provides:

Trees, cutting without consent; penalty
A. It shall be unlawful for any person to cut, fell, destroy or remove any trees, or to authorize or direct his agent or employee to cut, fell, destroy or remove any trees, growing or lying on the land of another, without the consent of the owner or legal possessor.
B. Whoever willfully and intentionally violates the provisions of Subsection A shall be liable to the owner or legal possessor of the trees for civil damages in the amount of three times the fair market value of the trees cut, felled, destroyed or removed, plus reasonable attorney’s fees.
C. Whoever violates the provisions of Subsection A in good faith shall be liable to the owner or legal possessor of the trees for three times the fair market value of the trees cut, felled, destroyed or removed, except however, that the provisions of this section shall apply only to trees cut or removed across ownership lines, marked boundary lines, or outside of designated cutting area lines, and that no provision herein shall apply to cutting operations within an area covered by a contract or agreement with the owner.
D. The provisions of this section shall not apply to the clearing and maintenance of rights of way or to utility service situations where a utility is acting in good faith to minimize the damage or harm occasioned by an act of God; the provisions of this Act shall not apply to land surveying by or under the direction of a registered professional land survey- or, duly registered under the laws of the State of Louisiana.
E. Whoever violates the provisions of Subsection A as they relate to the cutting of standing cypress trees on water bottoms owned by the state of Louisiana shall, in addition to the penalties otherwise provided in this Section, be subject to a fine not to exceed $5,000, imprisonment not to exceed six months or both.

This court previously construed this statute in Shaffett v. Vicks, 385 So.2d 419, 422 (La.App. 1st Cir.1980) as follows:

We believe that LSA-R.S. 56:1478.1(A)-(C) means, for our purposes, that damages are assessed against a person who cuts and removes timber from another person’s land without the owner’s permission. The penalty of damages is levied in all such situations. The amount of the penalty depends on the circumstances of the particular timber-cutting. If the timber-cutter “wilfully and intentionally” cuts and removes the timber, he is liable for damages in “the amount of three times the fair market value” of the timber. If the timber-cutter “in good faith” cuts and removes timber “across ownership lines, marked boundary lines, or outside of designated cutting area lines,” he is liable for damages for “three times the fair market value” of the timber. If the timber-cutter “in good faith” cuts and removes timber across a property line which is not visibly designated as a demarcation line between two adjacent properties, he is only liable for the fair market value of the timber. He is not liable for triple damages. It should be kept in mind that as a punitive measure, this statute must be strictly construed; it is only when a person clearly violates its provisions that he will be assessed the severe penalty of triple damages.

Although not specifically articulated by the trial court judge, a careful review of the record reveals that Rocquin did not “wilfully and intentionally” cut timber on Howes’ property; therefore, subsection B of the statute is not applicable. Roc-quin, being in good faith, would be liable for treble damages under subsection C of the statute only if there had been a visibly designated demarcation line dividing the two properties. Shaffett, supra. The evidence in the record establishes that there was no visible demarcation line. Although there were at least two surveyor’s stakes on the southern border of Rocquin’s property, the testimony of both parties indicates that the only stake that was easily discernible was the one located on the southeast border of Rocquin’s property. There was other testimony indicating the existence of an old fence or remnants of an old fence north of the canal; however, we do not think that Howes established that this fence remnant constituted a visible demarcation line. Howes felt it unnecessary to make any claim for damages for this fence, and, more importantly, Howes had to the south of the canal a functional fence in which he contained cattle. All these factors combined to create an absence of a dividing line between the properties; i.e., an experienced timber man could go from Howes’ tract to Rocquin’s tract without a noticeable difference, unless he happened to see a surveyor’s stake. See Shaffett, supra.

Accordingly, we find that Rocquin is not liable for treble damages under LSA R.S. 56:1478.1, but is liable only for the fair market value of the timber removed. The trial court based its award of damages on what it determined was the fair market value of Howes’ timber at the time of the injury. We feel that the trial court judge employed the correct legal standard.

The trial court judge also awarded Howes $2500.00 for the loss of aesthetic value of his trees. Rocquin contends that Howes suffered little or no aethestic loss. An award of damages under LSA R.S. 56:1478.1 does not preclude recovery for loss of aesthetic value. Thibodeaux v. Western World Ins. Co., 391 So.2d 24 (La. App. 3rd Cir.1980). The record reveals that Rocquin did not merely damage, but destroyed, many of Howes’ trees. These trees were on or near the boundary between the two adjoining tracts and served as a buffer zone between the two properties. The property between this buffer zone and Howes’ home was already cleared. A buffer zone between two pieces of property is something that cannot be sufficiently replaced by mere fencing. The beauty of such a natural boundary will not be completely restored for many years. We note also that since becoming owner of his tract, Howes had never cut the trees between the two properties. Howes also testified that he intended to let his son build a home on the south side of the canal. After carefully reviewing the photographs in the record and the testimony, we conclude that the award of $2500.00 for loss of aesthetic value is appropriate in this case. We are also of the opinion that such an award is within the considerable discretion vested in the trial court. Thibodeaux, supra.

Finally, Rocquin has argued that Howes did not establish how much of the cleared land was his property. We find Rocquin’s argument to be without merit under the circumstances. In his findings, the trial court judge said in part:

This matter was heard by the Court several years ago. At the conclusion of the testimony it was held open for the deposition of a witness and for the attorneys to go out to the property and measure the distance from the quarter section line to the canal on both the east and west sides, so as to reflect the amount of land involved in this dispute. While there has been no formal stipulation entered in the record, plaintiff’s exhibit number two (the appended map) reflects certain distances which were not on said exhibit at the time of trial. Accordingly, the Court will accept them as agreed to by the parties, unless objection is made prior to signing of the judgment.

These findings were filed on May 17, 1983. Both parties had until the signing of the judgment on June 13, 1983, to object or clarify. Neither did. Therefore, we consider that both parties were satisfied with the trial court’s assessment of property dimensions.

For the above and foregoing reasons, the judgment of the trial court is affirmed at appellant’s costs.

AFFIRMED.


author: SHORTESS, Judge.

text:
    STATE of Louisiana v. Carolyn WALL.
    No. 84 KA 0049.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 9, 1984.
    Ossie Brown, Dist. Atty. by Jeff Holl-ingsworth, Asst. Dist. Atty., Baton Rouge, for plaintiff-appellee.
    Stuart R. Thomson, Baton Rouge, for defendant-appellant.

      Before EDWARDS, SHORTESS and SA-VOIE, JJ.
   SHORTESS, Judge.

Carolyn Wall (defendant) and her mother, Dorothy Wall, were each charged by a single bill of information with one count of forgery and one count of felony theft in violation of La.R.S. 14:72 and 14:67, respectively. Defendant pled not guilty and after a jury trial was found guilty as charged on each count. The court sentenced defendant to five years at hard labor on each count to run concurrently. Execution of the sentence was suspended, and defendant was placed on supervised probation for three years with the special condition that she make restitution to the victim in the full amount of $25,000.00 principal, with interest at the rate of 12%. Defendant was also sentenced to pay court costs within one year or in default thereof to serve one year in the Parish prison.

Defendant appeals, urging five assignments of error:

1. The trial court committed error when the trial judge refused to grant defendant’s request for pretrial discovery on the basis that it was not timely filed.
2. The trial court committed error when the trial judge refused defendant’s request for a hearing regarding her motion to quash the bill of information filed against her.
3. The trial court committed error when the trial judge refused to allow full cross-examination of a prosecution witness and by failing to permit the accused to fully confront one of her accusers.
4. The trial court committed error when the trial judge refused to grant defendant’s motion to suppress evidence.
5. The trial court committed error when the trial judge refused to grant defendant’s motion to quash the bill of information when there was no warrant or probable cause for the arrest of defendant, Carolyn Wall.

In September, 1982, Power Packing Company of Baton Rouge issued a check drawn on its Capital Bank account for $25,000.00 made payable to a New York investment company named Rudolph Wolfe. A short time after issuance of the check, Thomas Alexander, Power Packing Company’s president, learned that the intended payee had not received the check. Alexander checked his cancelled checks only to learn that the check had been paid after improper endorsement.

R.D. King, security officer for Capital Bank, conducted a preliminary investigation into circumstances surrounding negotiation of the instrument. He learned from Alexander that the check had been given to Carolyn Wall, his secretary, to mail. He also learned that defendant’s mother, Dorothy Wall, had a criminal record for felony theft.

Paul Vilmarette, the Capital Bank branch manager who authorized cashing of the check provided details as to circumstances surrounding its negotiation. An older woman, who identified herself as “Marie Wolfe,” presented the check at his branch for cashing on September 20, 1982. She stated to him that the check was payment for work-related injuries sustained by her husband, Rudolph Wolfe. Vilmarette tried to convince her not to take cash but to open an account. The woman left the bank under the pretext of asking her husband if he would open an account. The next day she returned and stated that her husband, who did not trust banks, wanted the full amount in cash.

In the process of verifying the check, Vilmarette telephoned Power Packing Company. He spoke with a woman who identified herself as Kathy Grant, who approved the check. In reality, there was no employee of Power Packing named Kathy Grant.

The check was endorsed with the name “Rudolph Wolfe” when presented to Vil-marette. The name of “Marie Wolfe” was added as an endorsement at Vilmarette’s instruction.

Sgt. Steve Weber of the East Baton Rouge Parish Sheriff’s Office compiled a photo array for Vilmarette’s examination. He positively identified Dorothy Wall as the “Marie Wolfe” who had endorsed the check and received the $25,000.00 in cash.

Thereafter, Weber and King, unable to locate Dorothy Wall at her home, proceeded to Power Packing Company where they verified by means of employee computer time sheets that Carolyn Wall was the only person on duty answering the telephone during the time that Vilmarette spoke with “Kathy Grant.”

Confronted by Weber and King, defendant made statements inculpating herself and her mother, Dorothy Wall. The instant charges were thereafter brought against both.

The joint prosecution against defendant and Dorothy Wall was severed for trial on the merits. In her separate trial on the merits, Dorothy Wall was also convicted as charged on each count. She previously appealed her conviction and sentence to this court citing many of the same pretrial assignments as urged herein.

For the reasons fully set forth in State v. Dorothy Wall, 452 So.2d 222 (La.App.lst Cir.1984) we find that assignments of error Nos. 1, 2, 3 and 5, which relate to disposition and conduct of various joint pretrial motions, are without merit as applied to defendant Carolyn Wall.

In assignment of error No. 4 defendant urges that the trial court erred when it failed to suppress her confession consisting of oral statements made to King, oral statements made to Weber and a written statement made by her at the courthouse.

Defendant argues that her Fourth and Fourteenth Amendment rights were violated because Weber did not have probable cause to believe she had committed any crime before she gave her inculpating statement. She cites as authority Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975) and Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963) for her argument that since Weber had no probable cause her arrest was illegal, thereby rendering any statements made by her inadmissible fruits of an illegal arrest, as the State failed to show that her statements did not result from “an intervening independent act of a free will,” and that they were not “sufficiently an act of free will to purge the primary taint of the unlawful invasion.”

Did Weber have reasonably trustworthy information sufficient to “justify a man of ordinary caution” in believing defendant had committed a crime before defendant made her inculpating statements? He knew this: (1) defendant was given the check and told to mail it, (2) defendant was the last person in the office to have the check, (3) defendant’s mother had been identified by Vilmarette as the person who cashed the check and had a prior felony record, (4) defendant was the only person in the office when Vilmarette called and spoke to a person who identified herself as “Kathy Grant,” and (5) there was no Kathy Grant employed by Power Packing at the time in question. Weber had probable cause to arrest defendant without the incul-patory statements. Defendant’s Fourth Amendment argument lacks merit. Brown v. Illinois and Wong Sun v. United States are inapposite. It is not necessary, therefore, to determine if defendant’s statements resulted from “an intervening independent act of a free will,” or whether they were “sufficiently an act of free will to purge the primary taint of the unlawful invasion.” Wong Sun v. United States, 83 S.Ct. at 416.

Additionally, defendant’s motion to suppress filed in the trial court alleged as grounds that “the confession of Carolyn Wall... was obtained by unconstitutional means ... [in that] Carolyn Wall requested an attorney be present and no attorney was provided for her at the time.”

Evidence adduced at the motion to suppress reveals that on the afternoon of October 5, 1982, King and Weber confronted defendant at Power Packing’s conference room.

Both Weber and King testified that defendant was immediately given her Miranda rights and advised of the nature of the charges. Weber was not certain if defendant immediately signed the waiver form, but both he and King agreed that defendant did request an attorney before she would speak.

King testified that he and Weber then left defendant alone in the conference room while Weber called for a unit to transport defendant to the courthouse. King returned to the conference room about 10 minutes later after receiving Weber’s permission to talk with defendant. King advised defendant that he was not a law enforcement officer but, rather, an officer of Capital Bank. He summarized the evidence against defendant and her mother and offered his opinion that it would be better if she would talk with Weber.

After defendant had admitted her involvement in the scheme to King, she agreed to talk with Weber. Weber returned to the conference room and learned that she wanted to make a statement. Before permitting her to speak, he gave her a waiver of rights form to read and sign. After signing it, she made oral inculpatory statements. She was thereafter transported to the courthouse for booking. Later, a written statement was made at the courthouse.

Weber’s testimony was substantially the same as King’s. However, Weber did not recall King leaving the conference room after defendant’s request for an attorney, nor did he recall a conversation wherein King requested an opportunity to talk with defendant.

Defendant’s testimony differed from that of King and Weber in several respects. She denied having been advised of her Miranda rights until she arrived at the courthouse. Further, defendant insisted that she had requested the presence of an attorney at least four or five times while in Power Packing’s conference room. She admitted knowing that King was not a law enforcement officer but testified that her statements to him were induced by his promises to accept restitution as disposition of any criminal charges.

Defendant argues that her Fifth Amendment right to have counsel present during custodial interrogation, identified in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), was not scrupulously honored by law enforcement officers as required by State v. Thucos, 390 So.2d 1281 (La.1980).

Recent jurisprudence, not relied on by defendant, requires a stringent safeguard when defendant requests an attorney during custodial interrogation. In Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), the Supreme Court held that an accused, having expressed his desire to deal with police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him unless the accused himself initiates further communication, exchanges or conversation with the police. The court restated the requirements in Wyrick v. Fields, 459 U.S. 42, 103 S.Ct. 394, 74 L.Ed.2d 214 (1982), noting that before a suspect may be subjected to further interrogation after he requests an attorney there must be a showing that the “suspect himself initiates dialogue with the authorities.”

The first question for our consideration is whether King’s conversation with defendant, following her request for counsel and after Weber had left the conference room, constituted further interrogation by the authorities in violation of Edwards v. Arizona.

There is no evidence of record that King spoke with defendant at the request of Weber nor that King was operating as a police agent in the investigation of the forged check. King talked with defendant for his own purposes. He wanted to recover the $25,000.00 for his employer, which had borne the loss from the forged instrument. We find that King’s inquiry could not cause defendant to believe that her right to an attorney before questioning had been lost.

We further find that defendant’s later conversation with Weber was initiated by her. The standard announced in Edwards v. Arizona erects a bar to further police initiative in communications after request for an attorney; it does not bar communication initiated by the accused. Defendant’s inculpatory statement to Weber was unsolicited by him. It was made only after Weber warned her again and gave her a written waiver of rights form to read and sign, which she did. It was not made in response to any questioning by Weber. These precautions taken by Weber before he permitted defendant to speak clearly satisfy the Edwards rule.

In Oregon v. Bradshaw, 462 U.S. 1039, 103 S.Ct. 2830, 77 L.Ed.2d 405 (1983), the court noted that after finding no violation of the Edwards rule, the issue of whether the purported waiver of the right to counsel was knowing and intelligent under the totality of the circumstances must be addressed.

In addition, Louisiana statutory law requires that before a confession or incul-patory statement may be introduced in evidence, the State must prove affirmatively and beyond a reasonable doubt that the statement was free and voluntary and not made under the influence of fear, duress, intimidation, menaces, threats, inducements or promises. La.R.S. 15:451; La.C.Cr.P. art. 703(G); State v. Nathan, 444 So.2d 231 (La.App.1st Cir.1983), cert. denied, 445 So.2d 1232 (La.1984).

The trial judge made this necessary inquiry noting extensive reasons for his findings. In pertinent part, he found each of defendant’s allegations of misconduct specifically rebutted by the State. The allegation that defendant was not advised of her Miranda rights at the initial meeting was specifically rebutted by testimony of Weber and King as was the allegation that King had suggested restitution as resolution of criminal charges stemming from negotiation of the check.

The trial judge found that during her conversation with King defendant changed her mind about requiring the presence of an attorney and that she wanted to talk with Weber. Defendant, an intelligent woman, articulated a willingness to discuss the investigation with Weber. Weber again advised defendant of her rights and obtained a valid written waiver of rights before listening to her statement.

The decision of the trial judge on the question of whether the confession was voluntarily given is entitled to great weight and will not be overturned on appeal unless it is not supported by the evidence. State v. Haynie, 395 So.2d 669 (La.1981); State v. Odds, 430 So.2d 1269 (La.App.1st Cir.1983).

The trial judge’s conclusions on credibility are entitled to the respect due those made by one who saw the witnesses and heard them testify. State v. Loyd, 425 So.2d 710 (La.1982).

From our review of the record, we conclude that the trial judge’s finding that defendant’s statements were freely and voluntarily given is adequately supported by the testimony of Weber and King. Her oral and written inculpatory statements were properly admissible at the trial on the merits.

Assignment of error number 4 is without merit.

Accordingly, defendant’s conviction and sentence are affirmed.

AFFIRMED.

      . Carolyn Wall and her co-defendant Dorothy Wall were tried separately, as the State intended to use Carolyn Wall’s confession at trial. Admission of Carolyn Wall's confession in a joint trial would have violated Dorothy Wall’s right of cross-examination secured by the Confrontation Clause of the Sixth Amendment. See Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968).

      . On that same morning, Weber had presented the photo array to Vilmarette, who positively identified Dorothy Wall.

      . The written statement was not signed by defendant on the advice of her attorney who arrived at the police station as defendant was about to complete her written statement.

      .On rebuttal, King expressly denied any discussion with defendant with respect to restitution. He asserted that Capital Bank’s policy was to accept restitution as disposition of a criminal charge only if ordered to do so by a court.


author: PONDER, Judge.

text:
    Lorraine Fiero WALTON and William Elton Walton v. Tina Roberta HUTTON and Robert Warren Hutton.
    No. 84 CA 0069.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 9, 1984.
    Brian L. Williams, Baton Rouge, for plaintiff-appellant Lorraine Fiero Walton and William Eaton Walton.
    John A. London, III, Baton Rouge, for defendant-appellee Tina Roberta Hutton and Robert Warren Hutton.
    Before GROVER L. COVINGTON, LOT-TINGER and PONDER, JJ.
   PONDER, Judge.

Plaintiffs appealed the judgment of the trial court dismissing their suit for change of custody on defendants’ exception of no right of action.

The only issue is whether plaintiffs, the natural parents of a minor child who has been legally adopted by the defendants, have the necessary legal capacity to file a suit for legal custody of the child.

We reverse and remand.

Briefly, the alleged facts are as follows: Plaintiffs are the natural parents of the minor child, Robert Warren Hutton, Jr. (Robert). They consented, under coercion by the defendants, to the defendants’ adoption of Robert soon after his birth in 1978. Defendant, Tina Roberta Hutton, is the mother of plaintiff, Lorraine Fiero Walton. The remaining defendant, Robert Warren Hutton, is Mrs. Walton’s stepfather.

Plaintiffs filed a “Motion for Change of Legal Custody” in East Baton Rouge Par-' ish Family Court. They alleged that they had had physical custody of Robert since sometime in 1978 and requested permanent legal custody. They did not challenge the validity of the adoption proceedings. In response, the defendants filed several exceptions, including an exception of no right of action. The latter exception only was sustained, and plaintiffs’ suit was dismissed.

The peremptory exception of no right of action raises the question of whether the plaintiff has any interest in enforcing judicially the right asserted and whether he or she has the legal capacity to bring the action. LSA-C.C.P. art. 927; Lambert v. Donald G. Lambert Construction Co., 370 So.2d 1254 (La.1979).

By virtue of their adoption of Robert, the defendants áre his legal parents; by virtue of their consent to Robert’s adoption, the plaintiffs have forfeited all parental rights. LSA-C.C. art. 214. Usually, blood parents such as the plaintiffs who have given up their child to adoption are, thereafter, in all respects legal strangers to their natural child. However, plaintiff Lorraine Fiero Walton is in the anomalous position of being considered by the law as Robert’s sister.

The trial judge, in denying the plaintiffs the right to proceed in their suit, noted this anomalous legal relationship and seemed to conclude that this familial relationship would, normally, vest Mrs. Walton, at least, with the right to seek custody of Robert. Without that familial relationship, established by operation of law, the plaintiffs would be legal strangers, and, he concluded, legal strangers cannot seek custody. However, the trial judge apparently disregarded Mrs. Walton’s sibling relationship entirely, for he ultimately concluded that allowing the plaintiffs to proceed in their suit would provide precedent for all natural parents who have a change of heart to attack collaterally adoption proceedings by bringing suit for legal custody.

Defendants argue that the jurisprudence has limited the right to seek custody to grandparents and uncles of a child. They are not entirely correct, since several cases have recorded custody contests between blood parents and aunts of a child, as well. See e.g., In the Matter of Parker, 434 So.2d 1256 (La.App. 1st Cir.1983); La-Pointe v. Menard, 412 So.2d 223 (La.App. 3d Cir.1982); Robertson v. Robertson, 243 So.2d 847 (La.App. 2d Cir.1971).

Our jurisprudence contains countless cases involving custody disputes between parents and non-parents. None, however, has involved non-parents who were not also relatives, by blood or marriage, of the children concerned. This has been the case, no doubt, because relatives are much more likely than non-relatives to be concerned enough over a child’s welfare to seek his or her custody (as opposed to initiating state action). However, we agree with the statement made by this court in State ex rel. Stokes v. Stokes, 222 So.2d 573, at 577 (La.App. 1st Cir.1969), writ refused, 254 La. 472, 223 So.2d 874 (1969) and Gautreaux v. Allen, 345 So.2d 103, at 105 (La.App. 1st Cir.1977), that:

“We find no prohibition, statutory or jurisprudential, that would prevent a person other than a parent from seeking legal custody of a child.”

We conclude that the right to bring such an action is not limited to relatives, be they legal or blood.

For the foregoing reasons, the judgment of the trial court sustaining the defendants’ exception of no right of action and dismissing the plaintiffs’ suit is reversed, and the suit is remanded for further proceedings not inconsistent with this opinion. The order granting the plaintiffs provisional custody of the minor child Robert is reinstated, to continue in effect until the issue of legal custody is adjudicated. Defendants are to pay all costs of this appeal.

REVERSED AND REMANDED.

      . For the purposes of the exception of no right of action, all well-pleaded facts in the plaintiffs’ petition must be taken as true. Burns v. Genovese, 254 La. 237, 223 So.2d 160 (La.1969).

      . Plaintiffs were not married at that time. Plaintiff, Mrs. Walton, alleged that she was only fifteen and her mother and stepfather would not grant her permission to marry Mr. Walton unless she consented to the adoption.

      . Defendants’ other exceptions were denied. These included: (1) no cause of action, (2) vagueness and (3) lack of subject-matter jurisdiction.

      . LSA-C.C. art. 214 provides, in part:
      "The adopted person is considered for all purposes as the legitimate child and forced heir of the adoptive parent or parents, including the right of the adopted person or his lawful descendants to inherit from the adoptive parent or parents or the relatives of the latter by blood or by adoption, and the right of the adoptive parent or parents or the relatives of the latter by blood or by adoption to inherit from the person adopted or his lawful descendants, in the same manner and to the same extent as if the person adopted were in fact the legitimate child of the adoptive parent or parents.
      "* * * [U]pon adoption: the blood parent or parents and all other blood relatives of the adopted person, except as provided by R.S. 9:572(B), are relieved of all of their legal duties and divested of all of their legal rights with regard to the adopted person, including the right of inheritance from the adopted person and his lawful descendants; and the adopted person and his lawful descendants are relieved of all of their legal duties and divested of all of their legal rights with regard to the blood parent or parents and other blood relatives, except the right of inheritance from them.”

      .Of course, with the exception provided for in LSA-C.C. art. 214, which allows the adopted person to retain the right of inheritance from his or her blood parents.

      . We do not include in this discussion those cases in which custody has been transferred to the State, and foster parents are involved in the custody dispute.

      . Stokes involved an action by a maternal grandmother for permanent legal custody of her four grandchildren, which was contested by the natural mother. Whether the plaintiff had a right of action was not at issue, so the statement quoted was dicta. However, its status as dicta does not make it any less persuasive. Gau-treaux arose from a habeas corpus proceeding brought by the natural mother of a child against the child’s biological father, who had physical custody of the child. The child was born while the plaintiff was living with the defendant but remained married to another man. At the trial level, the plaintiff contended that the defendant had no standing to claim custody because he had not rebutted the legal presumption that her husband was the father of the child. The trial court ruled in favor of the plaintiff and the defendant appealed. On appeal, this court noted: "While the issue of paternity may have an effect upon the application of the rule that parents have the paramount right to custody, in a habeas corpus proceeding for custody of a child, it has no effect on the right of the party to claim custody.” (p. 105) We see no reason to limit the applicability of this principle to habeas corpus proceedings.