author: CIACCIO, Judge. WARD, Judge,

text:
    Phyllis Scharff, wife of/and Louis M. STERN v. The KREEGER STORE, INC., d/b/a Kreeger’s.
    No. CA 2175.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 11, 1985.

      Levy, Marx, Lucas & Rosen, William M. Lucas, Jr. and Lee W. Scharff, New Orleans, for appellants.
    Harry A. Rosenberg, Phelps, Dunbar, Marks, Claverie & Sims, New Orleans, for appellee.
    Before KLEES, CIACCIO and WARD, JJ.
   CIACCIO, Judge.

Plaintiff, Phyllis Stern, filed an action in redhibition and a suit for breach of contract arising from the sale of a mink jacket. The trial court dismissed the action in red-hibition as prescribed and, after consideration of the merits, dismissed the plaintiffs action for breach of contract because the amount of damages recoverable for the breach of contract was equal to the amount attributable- to the plaintiffs use of the jacket. We affirm the judgment of the trial court.

On October 25, 1977, Mrs. Stern went to the defendant’s store where she spent several hours looking at mink jackets in the Kreeger store where Ada Shegner leases space for its fur department. She had expressed her desire to purchase a natural ranch mink jacket. On this date she paid $1,837.50 for a jacket which was represented to her as being constructed of natural ranch mink. In 1980, Mrs. Stern first complained that the jacket had taken on a red color. In October, 1982 plaintiff again complained of the discoloration, which according to her, had become progressively worse. She was advised by the defendant that the problem was the result of oxidation. Plaintiffs sought the assistance of fur dealers in New Orleans and New York and in October, 1982 she was informed that her jacket was a dyed ranch mink jacket and not the natural ranch mink jacket that she had thought she had purchased. Thereafter Mrs. Stern and her husband attempted to see Mr. Kreeger, Jr. in order to resolve this matter. Mr. Kreeger did not meet with plaintiffs but sent his representative. Since the matter was not resolved, plaintiffs filed this suit on December 27, 1982.

The issues presented on appeal are: (1) Did the trial court err in catagorizing plaintiffs’ suit as a redhibitory action rather than a suit for nullity? (2) Did the trial court err in finding that the seller acted in good faith? (3) Did the trial court err in granting the defendant an offset, for plaintiffs use of the jacket, as against any damages it owed for breach of contract? Cause of Action

Plaintiffs contend that their suit is one of nullity of contract arising from fraud and not an action in redhibition as found by the trial court. C.C.Arts. 1847, 2520, 2547. Therefore, they reason that their suit is not prescribed, as the prescriptive period is ten years for cases of nullity of contract. C.C. Art. 2221.

An action for nullity of contract resulting from fraud is clearly distinguishable from an action in redhibition.

The Civil Code defines an action for nullity of contract resulting from fraud as follows:

Section 8 — Of the Nullity Resulting from Fraud C.C.Art. 1847 Fraud, definition; elements of fraud
Fraud as applied to contracts, is the cause of an error bearing on a material part of the contract, created or continued by artifice, with design to obtain some unjust advantages to the one party, or to cause an inconvenience or loss to the other....

Two elements are essential to constitute legal fraud: the intention to defraud and loss or damage or a strong probability of loss or damage. Automatic Coin Enterprises v. Vend-Tronics, 433 So.2d 766 (La.App., 5th Cir., 1983), writ den. 440 So.2d 756 (La., 1983), citing Buxton v. McKendrick, 223 La. 62, 64 So.2d 844 (La., 1953).

In support of their position that this is an action for nullity resulting from fraud, plaintiffs argue that this jacket was not the type of jacket it was represented to be and this misrepresentation and continued resistence of the defendant to remedy the situation constitutes fraud.

The record clearly supports the finding of the trial court that the “seller acted in good faith”. That is, the sellers consistently expressed their opinion that the jacket they sold was constructed of natural ranch mink and that the problem with discoloration was the result of a process of oxidation. There was no evidence to indicate the defendant knew or had reason to know the fur was dyed and the discoloration resulted from this condition. The actions of the sellers in their original sale of the jacket and their continued erroneous theory regarding discoloration resulted from their belief that the jacket was as the Federally mandated tag indicated, namely, a “natural ranch mink” jacket.

The plaintiffs have failed to allege or prove the existence of fraud (i.e., the intention to defraud).

A review of the pleadings and evidence in this case clearly indicates a cause of action in redhibition.

That is, redhibition is defined as follows:

C.C. Art. 2520. Redhibition, definition Redhibition is the avoidance of a sale on account of some vice or defect in the thing sold, which renders it either absolutely useless, or its use so inconvenient and imperfect, that it must be supposed that the buyer would not have purchased it, had he known of the vice.

A declaration made in good faith by the seller, that the thing which is sold possesses some quality which it is found not to possess, will give rise to an action in redhi-bition, if this quality was the principal motive for making the purchase. C.C. Art. 2529.

The plaintiffs petition states "... Petitioners have purchased an article of clothing with a redhibitory vice ...” (Par. VII). Moreover, the evidence was consistent with this allegation. That is, Mrs. Stern desired to purchase a mink jacket. She in fact bought a mink jacket, however it contained a vice, in that the jacket consisted of dyed and not natural mink. Plaintiffs’ suit is clearly an action in redhibition.

Accordingly, since this is an action in redhibition and not an action for nullity of contract the prescriptive period is one year, not ten years as suggested by plaintiffs. C.C. Arts. 2221, 2534, 2546.

Seller's Status

Plaintiffs contend that the trial court erred in finding that the defendant was a good faith seller. Plaintiffs argue that under the provisions of The Fur Products Labeling Act, a fur is misbranded and deceptively invoiced if the dyed condition of the fur is not indicated. 15 U.S.C. 69. The Sterns thereby infer that this seller is in bad faith for failure to make such disclosures.

The Fur Products Labeling Act is a federal regulatory measure the provisions of which are not available to private litigants. See: 15 U.S.C. Sec. 45. See: Fulton v. Hecht, 580 F.2d 1243 (U.S., 5th Cir., 1979), footnote 2, reh. den. 585 F.2d 520, cert. den. 440 U.S. 981, 99 S.Ct. 1789, 60 L.Ed.2d 241 (1979).

Plaintiff next alleges that under Fair v. F.T.C., a case arising under the Fur Products Labeling Act, supra that since there was no guarantee from the manufacturer and the seller was possessed of the requisite skill and knowledge, he was required to discover all errors discernible by the exercise of ordinary diligence. 272 F.2d 609 (7th Cir., 1959).

For the reasons stated above we find that the Fair case supra is not applicable to the case under consideration. However, even assuming that Fair, supra, was applicable, it does not support the plaintiffs position that defendant had a duty to inspect and his failure to do so results in his bad faith. In that case, the court stated:

The Commissioner inferred a lack of good faith solely on the ground that the Fair was obligated to examine the labels, regardless of guarantee, and that the Fair was, therefore, responsible for all errors discernable, by exercise of ordinary diligence, to one possessed of the requisite skill and knowledge of the act and regulations. As indicated, it is our conclusion that no such duty has been imposed. Fair v. F.T.C., supra at 612

Finally plaintiffs argue that since Kreeger’s placed an identifying label in the jacket that they stood in the place of the manufacturer and knowledge of the defect was imputed to them. In support of their position, the plaintiffs cite Penn v. Inferno Manufacturing Co., 199 So.2d 210 (La. App. 1st Cir., 1967), writ. ref. 251 La. 27, 202 So.2d 649. The Penn case, supra is distinguishable from the instant case. In Penn, supra the defendant was found to stand in the place of the manufacturer because the defendant assembled component parts and labeled the product as its own. In this case the defendant did not manufacture nor assemble the fur jacket, and no evidence was presented to the contrary. The plaintiffs have not proven that the defendant is a bad faith seller nor have they shown that defendant stands in the place of the manufacturer, to whom the knowledge of defect would be imputed. To the contrary the evidence supports the finding that the defendant was a good faith seller.

In a redhibition case involving a good faith seller, the cause of action prescribes in one year from the date of the sale. C.C. Art. 2534.

Since the sale occurred on October 25, 1977 and suit was not filed until December 27, 1982, the court correctly concluded that the action in redhibition had prescribed.

Even assuming arguendo that the defendant was a bad faith seller, according to the testimony of Mrs. Stern, such an action in redhibition would also be prescribed. That is, an action in redhibition involving a bad faith seller prescribes in one year from the discovery of the redhibi-tory vice. C.C. Art. 2546.

According to Mrs. Stern, she began to notice the discoloration of her fur coat in 1980 and in 1981 she brought the jacket back to the store to complain. Although she discovered the defect in 1980, suit was not filed until December 1982. Accordingly, since approximately two years had elapsed from the time of discovery of the defect until the filing of suit, this action was prescribed.

Plaintiffs contend that even though Kreeger did not own the fur department they were liable as an agent for an undisclosed principal.

Mrs. Pat Robinson, the salesperson who handled the sale of the jacket to Mrs. Stern, testified that the fur department was leased by her employer, Ada Shegner & Co. of New York, from the defendant.

Ada Shegner is not a defendant in this suit. The evidence shows that the billings and receipt of payment for the purchase of this jacket were handled by Kreeger’s. Assuming that Kreeger’s was the agent of an undisclosed principal there is no evidence that Kreeger’s had any knowledge other than that possessed by the principal in this transaction. In fact the evidence supports a finding that the seller (Kreeger’s as agent for Ada Shegner & Co.) acted in good faith.

Offset

Finally, plaintiffs contend that the defendant is not entitled to an offset for their five years use of the jacket. Further, they allege that the trial court erred in determining that the use of the jacket was equal to the purchase price.

The assessment of damages for breach of contract is a matter within the sound discretion of the trial judge and such a decision will not be reversed absent a clear abuse of discretion. See: Arceneaux v. Domingue, 365 So.2d 1330 (La., 1978). Use of the thing sold and use of the price are regarded as equal in the absence of specific evidence by which to evaluate the use of the thing. See: White v. Martin GMC Truck, Inc., 359 So.2d 1094 (La.App., 3rd Cir., 1978).

The plaintiffs in this case did not present any evidence with regard to the current depreciated value of this jacket as compared to the current depreciated value of a natural mink jacket. Rather, the only fact with regard to valuation which is revealed by the record in this case is the fact that the jacket was purchased in 1977 for $1,837.50. We also know that the jacket was subject to Mrs. Stern’s use for five years prior to the filing of suit (and an additional year from the time of filing until the trial.) Since no specific evidence was presented regarding the value of the use of the thing sold, we cannot say that the trial judge was clearly wrong in concluding that the damages due to the plaintiff for breach of contract were offset by the value attributable to the plaintiff’s use of the jacket.

For the reasons expressed herein, the judgment of the trial court is affirmed at appellant’s cost.

AFFIRMED.

WARD and KLEES, JJ., concur.

WARD, Judge,

concurring with reasons.

The evidence makes it clear to me that Mrs. Stern had a cause of action for recission of the contract of sale under Civil Code Article 1845, because there was error of cause:

Article 1845
Error as to the other qualities of the object of the contract, only invalidates it, when those qualities are such as were the principal cause of making the contract.

It is obvious that Mrs. Stern bargained for a particular quality, a natural ranch mink jacket, and her principal cause in making the contract was to receive a natural ranch mink jacket, not a dyed mink jacket. However, despite the rule that we should construe pleadings liberally, Mrs. Stern cannot obtain relief under this cause of action because her counsel did not plead it, nor refer to it in the brief, and hence, Kreeger’s had no opportunity to defend against it. Furthermore, while the plaintiff in an action to rescind a contract may obtain the purchase price, as the majority opinion, there is some authority in White v. Martin■ GMC Truck that an even offset between the value of the use of the object sold and its price may be presumed in the absence of specific evidence by which to evaluate the use.

Mrs. Stern had use of the coat for five years, although she had only full enjoyment of the coat for two years before she discovered the defect. However, there is no evidence of the expected life of a mink coat, and it cannot be said the presumption of offset has been rebutted.

KLEES, Judge, concurring with reasons.

I concur for the same reasons expressed by Judge Ward.


source: Caselaw Access Project

author: CIACCIO, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Renee PICCHINI.
    No. KA-2345.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 11, 1985.
    Rehearing Denied Feb. 26, 1985.

      Salvatore Panzeca; Suzette Powers of Racivitch, Carriere, Panzeca & Charbonnet, New Orleans, for appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., William R. Campbell, Jr., Asst. Dist. Atty., David Legett, Law Clerk, New Orleans, for appellee.
    Before KLEES, CIACCIO and WARD, JJ.
   CIACCIO, Judge.

Renee Piechini was charged with “attempted unnatural carnal copulation.” R.S. 14:89 and 14:27. She was found guilty as charged after a bench trial. She was sentenced to serve six (6) months in Parish Prison, the sentence was suspended and the defendant was placed on six (6) months active probation and ordered to pay $174.00 and to refrain from escort service employment. Defendant appeals relying upon five (5) assignments of error. We affirm the conviction and sentence.

The facts in this case are in conflict.

On March 3, 1983, Officer Ken Meynard of the Jefferson Parish Sheriff’s Office, Vice Squad, was investigating an escort service known as The House of the Rising Sun Escort Service. The investigation was conducted in conjunction with the New Orleans Police Department Vice Squad. After obtaining a room at the Fairmont Hotel, at approximately 1 A.M. on March 3, 1983, Officer Meynard, assisted by New Orleans Vice Officer David Henley, contacted the escort service and made an appointment to have a girl sent to his room. After the service called to confirm the request, Officer Meynard requested a short girl with dark hair. About 35 minutes later, the defendant, known as “Kim”, arrived at the officer’s hotel room. Upon entering the room she began a search and then stated that she wanted $60 for the escort fee and $300 for herself. Officer Meynard handed her four $100 bills which she placed in her purse. Defendant and Officer Meynard disrobed and Ms. Picchini attempted to commit an oral sex act upon Meynard. Meynard advised the defendant that he was a policeman and she was placed under arrest. She was allowed to cover herself with a sheet. New Orleans Police Officer David Henley, who also participated in this undercover operation, was with Officer Meynard until shortly before the defendant’s arrival at the room. He observed the defendant’s arrival at the hotel room as he stood near a hallway fire escape. At approximately 2 A.M., Meynard summoned Henley to the room where Henley identified himself to the defendant as she was lying in bed, nude, with a sheet over her. Meynard advised Henley of what had transpired. Henley then recovered the four $100 bills from the defendant’s purse and checked their serial numbers. The numbers matched the recorded money list.

According to Renee Picchini, she went to the Fairmont Hotel in response to a request for an escort. She searched the room for weapons in order to assure herself of her safety as the undercover officer had told her that he was a drug dealer and she was not to tell anyone of his whereabouts. According to the defendant, Mey-nard then pulled out $300 and tried to solicit her. She requested $60.00 escort fee and the right to contact her employer by phone, but she refused. She was placed under arrest and told that if she cooperated with police in order to secure an arrest of the escort service’s owner, Ken Brouilette, that she would only face a misdemeanor charge. Ms. Picchini denied that she had undressed and she also denied that she had attempted to engage in oral sex.

Assignment of Error No. 1

Defendant, by this assignment of error, contends that the trial judge erred when he granted a mistrial on the state’s motion following a disclosure by the trial judge that he and his family had represented the target of this probe, one Ken (“Frenchy”) Brouilette. Specifically, the defendant contends that the judge erroneously granted a mistrial in her first trial, which resulted in her current trial and conviction, subjecting her to double jeopardy. Generally, an error cannot be availed of after verdict unless it is objected to at the time of its occurrence. C.Cr.P. Art. 841. However, the plea of double jeopardy is not a matter which is waived by the defendant’s failure to object to an allegedly improper grant of a mistrial. C.Cr.P. Art. 594. State v. Simpson, 371 So.2d 733 (La. 1979)..

Code of Criminal Procedure Article 596 sets forth the requirements for double jeopardy:

C.Cr.P. Art. 596. Requirements for double jeopardy:
Double jeopardy exists in a second trial only when the charge in that trial is:
(1) Identical with or a different grade of the same offense for which the defendant was in jeopardy in the first trial, whether or not a responsive verdict could have been rendered in the first trial as to the charge in the second trial; or
(2) Based on a part of a continuous offense for which offense the defendant was in jeopardy in the first trial.

When a defendant pleads not guilty, in a bench trial, jeopardy begins when the first witness is sworn at the trial on the merits. C.Cr.P. Art. 592.

This constitutional safeguard against double jeopardy protects a defendant in a criminal proceeding from repeated prosecutions for the same offense, and it prevents repeated convictions and punishments for the same offense. C.Cr.P. Art. 591. State v. Simpson, supra. There are however, certain statutorily prescribed exceptions to the rule that a person shall not be twice put in jeopardy of life or liberty for the same offense. C.Cr.P. Arts. 591, 595. More particularly, where a mistrial is legally ordered under La.Code of Criminal Procedure Article 775, double jeopardy does not attach. That article provides:

Art. 775. Mistrial; grounds for
A mistrial may be ordered, and in a jury case the jury dismissed, when:
(1) The defendant consents thereto;
(2) The jury is unable to agree upon a verdict;
(3) There is a legal defect in the proceedings which would make any judgment entered upon a verdict reversible as a matter of law;
(4) The court finds that the defendant does not have the mental capacity to proceed;
(5) It is physically impossible to proceed with the trial in conformity with law; or
(6) False statements of a juror on voir dire prevent a fair trial.
Upon motion of a defendant, a mistrial shall be ordered, and in a jury case the jury dismissed, when prejudicial conduct in or outside the courtroom makes it impossible for the defendant to obtain a fair trial, or when authorized by Article 770 or 771.
A mistrial shall be ordered, and in a jury case the jury dismissed, when the state and the defendant jointly move for a mistrial.

In this case, the trial judge gave the following basis for recusal:

BY THE COURT:

During the testimony of the witness that was on the stand the name of Kent Brouillette or Frenchy Brouillette was brought forward.
This is this Court’s first knowledge that it is alledged that Mr. Brouillette was the owner.

BY MR. PANZECA:

Target.

BY THE COURT:

Target as the owner of the House of the Rising Sun of which it is alleged that Miss Picchini is employed by. At the time that the name was brought forward I recessed in order to inform both attorneys that for years I have represented, that I had represented Mr. Brouillette before taking the bench. He had been represented by both my father, my brother and myself on numerous occasions as defense attorneys. With those facts I believe Mr. Panzeca spoke to Miss Picchini and did not care to file a motion to recuse.

BY MR. PANZECA:

That is correct, your Honor.

BY THE COURT:

However, the State does desire to file such a motion. You are filing such a motion, Miss Sharpe?

BY MISS SHARPE:

Yes, your Honor.

BY THE COURT:

On those basis in order to alleviate any question of impropriety I will grant the State’s motion. I will recuse myself from the case. I will order that both cases—
* * * * * *

BY THE COURT:

I will have to declare a mistrial. I will declare a mistrial. [TR 12-13]

The Louisiana Code of Criminal Procedure sets forth certain mandatory grounds for recusal, that is:

Art. 671. Grounds for recusation of judge
In a criminal case a judge of any court, trial or appellate, shall be recused when he:
(6) Would be unable, for any other reason, to conduct a fair and impartial trial.
* * * * * *

It is apparent that the trial judge in this case was of the opinion that he could not conduct a fair and impartial trial. Thus, the law mandated his recusal. Since this was the case, had this action not been taken it would have resulted in a legal defect in the proceedings which would have made any judgment entered reversible as a matter of law. C.Cr.P. 775(3).

Additionally, once the judge recused himself it was physically impossible to proceed with the trial, particularly since the judge was the fact trier in this instance.

Accordingly, we find that the mistrial was one legally ordered under Louisiana Code of Criminal Procedure Article 775 and as such, was an exception to the general rule that “[n]o one shall be twice put in jeopardy of life or liberty for the same offense.” C.Cr.P. Art. 591. The defendant was properly retried following the mistrial. Double jeopardy did not attach.

For the reasons assigned, this assignment lacks merit.

Assignment of Error No. 2

Defendant alleges by this assignment that the bill of information is fatally defective in that it does not adhere to proper form (C.Cr.P. Art. 465); it is unconstitutionally vague (U.S. Const., Amend. 6; La. Const. Art. 1, Sec. 13); and it does not charge a crime punishable under a valid statute.

Except for the issue of vagueness, the defects of which the defendant complains are matters which are properly raised by a motion to quash the bill of information filed with the district court. C.Cr.P. Art. 532(1), (2).

Our review of the record indicates that these objections were not raised by the motion to quash filed with the district court. Accordingly, these objections have been waived.

With regard to the allegation that the bill of information is unconstitutionally vague, we have reviewed this issue as an error discoverable on the face of the record. C.Cr.P. Art. 920(2).

The bill of information, as originally drafted, charged that the defendant “did wilfully and unlawfully attempt to have unnatural carnal copulation with one Kim Meynard, in that she, the said Renee Picchi-ni did attempt to place her mouth upon the penis of the said Kim Meynard.” This charge was lined through and on August 29, 1983 it was made to read “did wilfully and unlawfully solicit one Kim Meynard with the intent to engage in unnatural carnal copulation for the amount of $400.00.” This amendment was lined through, and on December 19, 1983, it was made to read “amended to original charge of attempted unnatural carnal copulation.”

Although the bill of information is less than ideally drafted; when the final amendment is read in conjunction with the original draft of this count, it becomes apparent that the defendant is charged with an attempted crime against nature, in violation of Revised Statute, Title 14 Section 89 and Title 14 Section 27.

The bill of information is therefore, sufficient to notify the defendant of the crime charged. C.Cr.P. Art. 464. U.S. Const., Amend. 6; La. Const., Art. 1, Sec. 13.

For this reason, assignment of error number 2 lacks merit.

Assignment of Error No. 3

The defendant contends, by this assignment of error, that the statute under which she was prosecuted, namely Revised Statute Title 14, Section 89, is unconstitutional. More specifically, she argues that the statute violates her constitutional right of privacy, because in this case the crime charged involves unnatural carnal copulation between consenting adults without solicitation for compensation. Defendant further argues that “The definition of the crime, is unconstitutional because it requires and/or promotes selective prosecution. ... The State chose, and will always choose, one party to be prosecuted. It would be impossible for the State to prove its case unless one of the consenting parties turns on the other”.

Generally, in order to preserve an alleged error for consideration on appeal, the Code of Criminal Procedure requires that an objection be made to the irregularity at the time of its occurrence and that it be designated in a written assignment of error. C.Cr.P. Arts. 841, 844. Only those errors which are so designated, or those errors patent on the face of the record may be reviewed on appeal. C.Cr.P. Art. 920.

The courts have dispensed with the necessity for objection and compliance with the assignments of error procedure in those instances where an attack is levied upon the facial constitutionality of a statute. State v. Lee, 364 So.2d 1024, note 4 (La.1978). Rather, such allegations have been considered as error discoverable by a mere inspection of the pleadings and proceedings without an inspection of the evidence. C.Cr.P. Art. 920(1). State v. Lee, supra, See: State v. Stewart, 325 So.2d 828 (La.1976).

In this case, the defendant did not file a motion to quash the bill of information on the grounds that the statute was unconstitutional. Accordingly no hearing was held nor evidence adduced. C.Cr.P. Arts. 532(1), 535-536. Neither did the defendant file a motion in arrest of judgment, attacking the constitutionality of this statute. C.Cr.P. Art. 859(2). This constitutional attack is presented for the first time in the defendant’s brief and (following a request by this Court) in an assignment of error recently filed with the district court. Since the defendant has not complied with the procedural method for reserving a constitutional attack upon this statute, insofar as the statute applies to this defendant, that issue is not properly before us for review.

With regard to an attack upon the facial constitutionality of the crime against nature statute, we note that the Louisiana Supreme Court has consistently held this statute to be constitutional. R.S. 14:89. State v. Lindsey, 310 So.2d 89 (La.1975); State v. McCoy, 337 So.2d 192 (La.1976); State v. Phillips, 365 So.2d 1304 (La.1979), cert. den. 442 U.S. 919, 99 S.Ct. 2843, 61 L.Ed.2d 287 (1979), reh. den. 444 U.S. 890, 100 S.Ct. 196, 62 L.Ed.2d 127 (1979). For these reasons, this assignment lacks merit.

Assignment of Error No. ⅛

The defendant, by this assignment, contends that the trial judge erred in refusing to consider the defense of entrapment in this case. The defendant alleges that this error resulted from the trial judge’s finding that an entrapment defense was not available to one who had denied the commission of the crime.

In discussing the defense of entrapment, the court in State v. Bernard, 441 So.2d 817, 820 (La.App. 3rd Cir.1983) writ den. 445 So.2d 439 (La.1984) stated:

Under the generally accepted view an entrapment is perpetrated when a law enforcement official or person acting in cooperation with such an official, for the purpose of obtaining evidence of the commission of an offense, solicits, encourages, or otherwise induces another person to engage in conduct constituting such offense when he is not then otherwise disposed to do so. State v. Batiste, 363 So.2d 639 (La.1978). When entrapment is at issue, the focal point of the inquiry is on the predisposition of the defendant to commit the crime at issue as well as on the conduct of the police. State v. Batiste, supra. For entrapment to exist, a defendant must be induced in some way to engage in criminal conduct which he is not otherwise disposed to engage in; an entrapment defense will not lie if the officers or agents have merely furnished a defendant, who is predisposed to commit the crime, the opportunities to do so. State v. Moody, 393 So.2d 1212 (La.1981).

The Louisiana Supreme Court has found the defense of entrapment and a defense of non-commission of the crime to be compatible positions in certain instances. State v. Harrington, 332 So.2d 764 (La.1976). In Harrington, supra, at 767, a plurality of the Court stated:

There is no logical reason why the defendant should not be allowed to show that the entire plan involved in this case constituted a governmental attempt to entrap persons into committing the crime of bribery, even though she claims she did not bribe the officer, but that he took the money away from her when she refused to pay the bribe.

In this case the defendant unsuccessfully argued the defense of entrapment at the hearing on the motion to quash the bill of information and the motion for a directed verdict.

Following the presentation of the state’s case, the trial judge made an initial response to the defense of entrapment:

BY THE COURT:

But, Mr. Panzeca, every time the police officers do undercover vice, their intent is to snare their prey. All right? There’s no question. They’re not going out on the street with the intention of not arresting anybody. They’re going out on the street with the intent to find offenders of the law if they are there. You can use semantics to use the word “entrap”. But the legal definition of entrapment— the legal definition that hopefully you’re putting your hands on now — says that it must be some type of enticement. You know, that they did it but the devil made them do it. All right? And at this point in time — I’m not saying what’s going to come out later — but at this point in time I have nothing to — no testimony except a laymen’s terms by the use of the word “entrap”.... But I have not seen or heard any evidence that would lead me to perceive that the defendant was entrapped. It may be coming up, but I haven’t heard anything as yet_ [Tr. 35-36]
* * * * * *

BY THE COURT:

I would even maybe tend to agree with you, Mr. Panzeca, if it were not the fact that we’re fooling with an escort service. If someone had approached someone on the street, as they often do, and invite them up to their room for a drink, etc., etc., I could say yes that I would consider that an enticement of sorts. But she came to the room after receiving a call for what you claim to be a very legal business. And she went up to that room under the auspices of being a legal business person, at which time a crime occurred. Had Miss Picchini come off the street at the invitation or bequest of the officer, I’d say you’re probably right that she was enticed. But she was sent out for business purposes_ [Tr. 39]

After the close of the case, the following colloquy took place:

BY THE COURT:

Let the record reflect that the state has presented its evidence and the defense has presented its evidence. And the rather curious defense of entrapment was made. Normally in an entrapment case, the defendant will take the stand and say they did it but they were enticed to do it. In this particular case, the defendant took the stand and denied that she did anything like that. So, therefore, she’s denying her defense of entrapment. BY MR. PANZECA:
Your honor, this is an attempt case. This is not—

BY THE COURT:

That’s correct. But she is denying that she ever attempted to do anything.

BY MR. PANZECA:

That’s correct.

BY THE COURT:

And she said she kept her clothes on, she never accepted any money, that no money was ever given to her, that she never discussed any sex at all, that she was merely barred from the room. According to her testimony no crime was committed. And, therefore, I have to throw out any type of entrapment argument. I don’t think it’s present. [Tr 60]
* * * * * *

Our review of the record indicates a dual basis for the judge’s rejection of the entrapment defense. That is, he first found that the evidence did not support a finding of entrapment, as there had been no enticement by the undercover police. This basis for rejecting the defense of entrapment is clearly supported by the record. The defendant’s involvement with the escort service brought her to the hotel room of the undercover policemen. There she set the price for her services. After receiving $400 she proceeded to complete the agreement. Her actions towards this end were self-induced and the policeman’s actions merely furnished the opportunity, not the enticement, for the commission of the crime. The trial judge correctly concluded that the evidence did not support a finding of entrapment.

Secondly, the trial judge rejected the entrapment defense because he erroneously assumed that such a defense was incompatible with the defendant’s position that she had not attempted to commit the crime with which she was charged. This error was harmless, however, since the judge correctly concluded that the evidence presented at the trial did not support a finding that the defendant was entrapped.

For these reasons, assignment of error No. 4 lacks merit.

Assignment of Error No. 5

Defendant contends that her intent to commit the offense was not shown and therefore, the State failed to prove an essential element of the crime.

The offense of a crime against nature requires a general criminal intent. R.S. 14:89; 14:11. Such intent is present whenever there is specific intent and also when the circumstances indicate that the offender in the ordinary course of human experience must have adverted to the prescribed criminal consequences as reasonably certain to result from his (her) act. R.S. 14:10(2). Thus, in the case of a crime against nature, proof of the act which constitutes the crime is proof of the crime and the general criminal intent. State v. Frentz, 354 So.2d 1007 (La.1978).

In this case the fact that the defendant unrobed, knelt on the floor and attempted to place her mouth on Officer Meynard’s penis was sufficient to constitute an attempted crime against nature and the general intent to commit the offense.

This assignment lacks merit.

Additionally, we have reviewed this record for errors patent upon its face and we find none. C.Cr.P. 920(2).

Finally, we have examined the record in order to determine whether there exist sufficient evidence to support the defendant’s conviction. State v. Raymo, 419 So.2d 858 (La.1982). We find that viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the defendant guilty of an attempted crime against nature. R.S. 14:89 and 14:27. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). That is, the crime which the defendant is accused of attempting is defined as follows:

R.S. 14 Sec. 89. Crime against nature

A. Crime against nature is:

(1) The unnatural carnal copulation by a human being with another of the same sex or opposite sex or with an animal, except that anal sexual intercourse between two human beings shall not be deemed as a crime against nature when done under any of the circumstances described in R.S. 14:41, 14:42, 14:42.1 or 14:43. Emission is not necessary; and, when committed by a human being with another, the use of the genital organ of one of the offenders of whatever sex is sufficient to constitute the crime.
(2) The solicitation by a human being of another with the intent to engage in any unnatural carnal copulation for compensation.
* * * * * *

In this case the judge believed the facts as presented by the arresting officers. Officer Meynard testified that the defendant responded to a request he made with The Rising Sun Escort Service for an escort. She requested $60.00 for the escort service and $300 for herself. Defendant accepted $400 from the officer. The parties disrobed and the defendant attempted to commit an oral sex act.

This evidence is sufficient to support the defendant’s conviction for an attempted crime against nature.

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

AFFIRMED.

      . No objection has been presented to this Court that the issue of double jeopardy was not raised by a motion to quash filed with the trial judge. C.Cr.P. 535, subd. A(3). Since the language of Code of Criminal Procedure Article 594, to the effect that "[D]ouble jeopardy may be raised at any time ...” is ambiguous, we will .consider the merits of defendant’s assignment.

      . The trial judge, in evaluating the credibility of the witnesses, chose to believe the policemen and not the defendant.


text:
    SUCCESSION OF Mary Bradford DAVIS.
    No. CA 2030.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 11, 1985.
    Michael E. Botnick, David W. Oestreicher, II, Oestreicher, Whalen & Hackett, New Orleans, for appellant.
    Bruce C. Waltzer, Fine, Waltzer & Bag-neris, Michael F. Little, Roger C. Linde, Michael F. Little, A.P.L.C., New Orleans, for appellee.
    Before SCHOTT, BARRY and CIACCIO, JJ.
   CIACCIO, Judge.

On September 15, 1982, plaintiff, Dorothy Lee Persia O’Steen, sued the Succession of Mary Bradford Davis alleging that prior to her death Mrs. Davis perpetrated a fraud upon Mrs. O’Steen in connection with a contractual agreement whereby plaintiff sold 1,326.3465 shares of stock in Mike Persia Chevrolet Company, Inc. to Davis and the Company. The agreement had been executed on May 30, 1977. Defendant filed an exception of prescription arguing that the action was barred by the one-year prescriptive period applicable to tort actions, former La.C.C. Art. 3536 , or by the two-year prescriptive period applicable to stock transactions under La.R.S. 51:715. Plaintiff argued that her action sounds in contract and that the ten-year prescriptive period in former La.C.C. Art. 3544 governs.

The trial court ruled that the two-year prescriptive period provided in La.R.S. 51:715(E) controlled. More than two years having passed, he ordered plaintiffs suit dismissed with prejudice as having prescribed. Plaintiff has appealed.

Mary Bradford Davis was the testamentary executrix for the Succession of Mike Persia, Sr. During the administration of the Succession of Mike Persia, Sr., Mrs. Davis, Mike Persia’s widow, entered into a written agreement with Mrs. O’Steen, Mike Persia’s daughter, as “a compromise of various aspects of the Succession of Mike Persia and the ownership of stock of [Mike Persia Chevrolet] Company.” Mrs. Davis at this time was the majority stockholder, a director, and was serving as the president of Mike Persia Chevrolet Company, Inc.

The agreement called for the Company to redeem Mrs. O’Steen’s Company stock in return for a stated value paid in cash. Two additional cash amounts were to be paid Mrs. O’Steen by Mrs. Davis, as testamentary executrix, in settlement of admitted and contested naked ownership claims. Another cash amount was to be paid Mrs. O'Steen by Mrs. Davis, individually, to purchase Mrs. O’Steen’s “undivided interest in the remaining assets of said Succession.”

The remainder of the agreement relieves Mrs. O’Steen of any Succession debts or obligations, her share being assumed and guaranteed personally by Mrs. Davis. Further, the agreement provides for an upward adjustment to the price paid for the redeemed stock in the event that the Internal Revenue Service and the Succession establish a value for the stock in excess of the price paid Mrs. O’Steen. Mrs. Davis personally guaranteed the obligation to make the upward adjustment, if necessary.

Plaintiff’s petition alleges that the value of the stock which she sold was five (5) times the price she received. She alleges that she was the victim of fraud and misrepresentation at the hands of Mrs. Davis. She seeks damages therefor in the form of the difference between the alleged actual value of the stock and the price she received.

Appellee has referred us to the case of Dupuy v. Dupuy, 551 F.2d 1005 (C.A.5 1977). In a fact situation similar to this case, the Federal Court in Dupuy found that the two-year prescriptive period in La. R.S. 51:715(E) applied. The Dupuy case, however, was an action brought under the provisions of Security and Exchange Commission Rule 10b-5. Because the federal securities laws do not contain a statute of limitation, the period that the forum state applies to the state remedy bearing the closest substantive resemblance to Rule 10b-5 is utilized. The Federal Court indicated that the Louisiana statute bearing the closest substantive resemblance to Rule 10b-5 was La.R.S. 51:715(A)(3). The court, therefore, applied the two-year prescriptive period found in La.R.S. 51:715(E).

This present action is not being pursued under Rule 10b-5. Nor have we found any authority to indicate that La.R.S. 51:715 provides the exclusive state remedy available to plaintiff so that its two-year prescriptive period must necessarily be applied.

In another case with facts similar to this present action, the Louisiana First Circuit Court of Appeal found that plaintiffs action was one in contract and the ten-year prescriptive period applied. Wilson v. H.J. Wilson Co., Inc., supra. In Wilson the plaintiff alleged the wrongful or fraudulent transfer of stock from himself, a minority shareholder, to his brother, the majority shareholder. Plaintiff also filed an action in Federal Court under Rule 10b-5. The Federal judge found the action prescribed by the passage of more than two years, as in Dupuy, again analogizing Rule 10b-5 to La.R.S. 51:715. The Louisiana Court of Appeal, however, directly addressing the issue, “what is the prescriptive period applicable,” found plaintiffs action “is a suit arising ex contractu.” Accordingly, the court held that plaintiffs claim had not prescribed under the applicable prescriptive period as set forth in (former, See fns. 1 & 2) La.C.C. Art. 3544.

As did the court in Wilson, we find that plaintiff claims a breach of contract or fiduciary obligation, and the applicable prescriptive period is ten years. Since ten years had not elapsed since the earliest time plaintiff could have become aware of any alleged breach (i.e. the date of the agreement) the trial court erred by dismissing plaintiffs suit as having prescribed. Accordingly, we reverse the ruling of the district court, overrule the exception of prescription, and remand this matter to the district court for further proceedings.

REVERSED AND REMANDED.

      . Chapter 4 of Title XXIV of the Louisiana Civil Code of 1870, consisting of Articles 3528 through 3554, was revised, amended and reenacted by Acts. 1983, No. 173, effective Jan. 1, 1984, to consist of Articles 3492 through 3504. Acts, 1983, No. 173, repealed Arts. 3528 through 3531, 3533 through 3542, and 3544 through 3554. Applicable at the time of these proceedings in the trial court was Art. 3536:
      Art. 3536. Other actions prescribed by one year. The following actions are also prescribed by one year:
      That for injurious words, whether verbal or written, and that for damages caused by animals, or resulting from offenses or quasi offenses.
      That which a possessor may institute, to have himself maintained or restored to his possession, when he has been disturbed or evicted. That for the delivery of merchandise or other effects, shipped on board any kind of vessels. That for damage sustained by merchandise on board ships, or which may have happened by ships running foul of each other.

      . See fn. 1.
      Art. 3544. Personal actions, general rule. In general, all personal actions, except those before enumerated, are prescribed by ten years.

      . The corporation no longer exists, so a recission of the sale is not possible.

      . La.R.S. 12:91 provides:
      Officers and directors shall be deemed to stand in a fiduciary relation to the corporation and its shareholders, and shall discharge the duties of their respective positions in good faith, and with that diligence, care, judgment and skill which ordinarily prudent men would exercise under similar circumstances in like positions. Nothing herein contained shall derogate from any indemnification authorized by R.S. 12:83.


text:
    Morris B. CONNELLY v. BUCK KREIHS COMPANY, INC.
    No. CA 2716.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 11, 1985.

      Michael R. Zsembik of Reuter, Reuter, Reuter & Pizza, New Orleans, for appellant.
    Jacques F. Bezou, New Orleans, for ap-pellee.
    Before KLEES, CIACCIO and WARD, JJ.
   CIACCIO, Judge.

In this worker’s compensation case, plaintiff suffered a work-related accident while employed by defendant. Four toes on one of plaintiffs feet were crushed resulting, ultimately, in a 20% permanent disability with regard to his big toe. Plaintiff also began to suffer back problems which he attributed to the adjustments he was forced to make in walking and other ambulatory activities as a result of the injury to his foot.

The trial court found plaintiff totally and permanently disabled, and awarded him one hundred fifty ($150.00) dollars per week for the duration of his disability.

Defendant appeals assigning three errors: (1) The award exceeds the maximum benefits allowable; (2) The evidence does not support a finding that plaintiffs back problems resulted from the injury to his foot; and (3) The only compensation should be for the 20% permanent disability of the big toe.

Of initial importance for our review is the issue presented by appellant’s second assigned error, i.e., was the trial judge clearly wrong in finding causation between plaintiff’s foot injury and his subsequent back problems? Appellant argues that the evidence establishes only a possibility that the back problems resulted from the foot injury, and that evidence of a possibility is not sufficient to sustain a finding of causation. In worker’s compensation cases, where there is proof of a work-related accident and of the following disability without any intervening cause, it is presumed that the accident caused the disability. The effect of this presumption is to shift the burden to the defendant to come forward with enough evidence to rebut the presumption. Guillory v. United, States Fidelity and Guaranty Insurance Company, 420 So.2d 119 (La.1982); Urbi-na v. Alois J. Binder Bakery, Inc., 423 So.2d 765 (La.App. 4th Cir.1982).

In this case plaintiff suffered a work-related accident following which he experienced a 20% permanent disability of his big toe and pain in his back. Any disability caused by plaintiff’s back condition is presumed to have resulted from the accident. By cross-examination of plaintiff’s treating physician, defendant established that it was only a possibility that plaintiff’s back condition resulted from any post-accident adjustments plaintiff made because of his foot injury. Although this implies that something else could possibly have caused plaintiff’s back condition, this implication is not evidence sufficient to rebut the presumption that the accident caused plaintiff’s disability. Urbina v. Al-ois J. Binder Bakery, Inc., supra. The trial judge’s conclusion is not clearly wrong and will not be disturbed.

Having found that the conclusion concerning causation will stand, it is clear that plaintiff is entitled to more than the compensation payable for 20% permanent disability of his big toe. (Appellant’s third assigned error.) We find, however, that plaintiff is not totally and permanently disabled as found by the trial judge.

Total disability, whether permanent or temporary, means the inability to engage in any gainful occupation, whether or not the same or one similar to that in which the employee was customarily engaged when injured. Schouest v. J. Ray McDermott & Co., Inc., 411 So.2d 1042 (La.1982); Johnson v. Aetna Casualty & Surety Co., 422 So.2d 1187 (La.App. 1st Cir.1982), writ denied, 429 So.2d 127 (La. 1983). The evidence in the record indicates that plaintiff was injured in August of 1978. In December of 1978 he returned to work for his same employer, defendant, and continued to work there until February of 1980. From March of 1980 until January of 1982 plaintiff worked for two different employers. From July of 1982 until January of 1983 plaintiff returned to work with one of his former employers. Also, sometime during this period plaintiff worked for yet another employer on occasional one-day jobs plus a two-week job during which plaintiff testified he worked twelve hours a day, seven days a week. Before trial in 1983, plaintiff worked for yet another employer. Trial was in April of 1983. Plaintiffs earnings for 1979 were approximately $19,000.00; for 1980, approximately $17,288.00; and for 1982, approximately $20,899.00. Plaintiff was not totally disabled. The trial court’s finding that plaintiff was totally disabled was clearly wrong.

This does not, however, preclude plaintiff’s receiving any compensation award at all. See Martin v. H.B. Zachry Co., 424 So.2d 1002 (La.1982); Schoest v. J. Ray McDermott & Co., Inc., supra. An employee may be deemed partially disabled if he is unable to perform the same duties in which he was customarily engaged, or duties of the same or similar character for which he is fitted by education, training or experience. La.R.S. 23:1221(3). A claimant may be considered partially disabled under Sec. 1221(3) when his work-related injury prevents him from performing significant physical tasks which are required by his employer and important to the effective performance of his work. Dodd v. Nicolon Corporation, 422 So.2d 398 (La. 1982); Naquin v. Uniroyal, Inc., 405 So.2d 525 (La.1981).

Plaintiff was employed as a boilermaker. Concerning what limitations plaintiff might experience as a result of his back problems, his treating physician (the only medical expert to testify) testified that plaintiff would have “difficulty”, “trouble”, or that he “wouldn’t advise” stooping, bending, walking on uneven surfaces, climbing, lifting heavy objects, swinging mallets and hammers, getting inside of boilers and working on the inside in confined areas. The evidence indicates that when plaintiff worked following his injury, he would occasionally experience back problems such that he was unable to properly perform his required tasks. Plaintiff testified to at least one occasion where he actually lost his job because his back condition prevented him from doing his work.

While plaintiff’s post-accident work record indicates that he can continue to perform many of the tasks required of a boilermaker, the evidence indicates that some tasks he should not attempt to perform and that, of those tasks he chooses to attempt, he will be unable to perform whenever his back condition flares up. Plaintiff’s physician even indicated that should plaintiff attempt certain tasks which involve the risk of precipitating a symptomatic episode of his back condition, his consequential inability to perform might create a hazard for his fellow workers. We find that the preponderance of the evidence establishes that plaintiff is permanently partially disabled.

The accident occurred in August of 1978. Under La.R.S. 23:1221(3) plaintiff is entitled to compensation at a rate of:

sixty-six and two-thirds per centum of the difference between the wages the employee was earning at the time of the injury and any lesser wages which the injured employee actually earns in any week thereafter in any gainful occupation for wages, whether or not the same or a similar occupation as that in which the employee was customarily engaged when injured and whether or not an occupation for which the employee, at the time of injury, was particularly fitted by reason of education, training, and experience, during the period of disability, ... not beyond a maximum of four hundred fifty weeks for such partial disability resulting from injury occurring on and after September 1, 1977; provided further that for any week during which the employee is paid any compensation under this subdivision (3) the employer shall be entitled to a reduction of one full week of compensation against the maximum number of weeks for which compensation is payable under this subdivision (3) and for any week during which the employee is paid no compensation, because of the employee’s actual earnings during that week, the employer shall not be entitled to a reduction for that week against the maximum number of weeks for which compensation is payable under this subdivision (3), and in no event shall the total number of weeks of compensation for such partial disability under this subdivision (3) be increased beyond the maximum number of weeks stated in this subdivision (3).

The maximum weekly compensation to be paid is provided by La.R.S. 23:1202 (appellant’s first assigned error). That amount equals 66-⅜% of the average weekly wage paid in all employment subject to the Louisiana Employment Security Law computed to the nearest multiple of one dollar. The applicable average weekly wage as determined by the administrator of the office of employment security, La.R.S. 23:1202, for the period, during which plaintiff was injured is $194.75. See Johnson v. Aetna Casualty & Surety Co., supra. Maximum weekly benefits, therefore, equal $130.00. Further, legal interest shall accrue on all past due payments from date due until paid. Martin v. H.B. Zachry Co., supra.

The record does not contain evidence of the weekly wages plaintiff actually earned for his post-accident work. We are, therefore, unable to calculate the benefits due. Consequently, we remand this matter to the district court for a determination of the benefits due in accordance with law.

Accordingly, the judgment of the district court is set aside. Judgment is hereby entered declaring plaintiff to be permanently partially disabled and entitled to the benefits due pursuant to La.R.S. 23:1221(3) (as it read in August 1978). The matter is remanded to the district court for the determination of benefits.

All costs are to be paid by appellants.

SET ASIDE, AMENDED AND REMANDED

      . La. Acts 1983, 1st Ex.Sess. No. 1, amended La.R.S. 23:1221 effective July 1, 1983. Throughout this opinion we consider the statute as it existed at the time of plaintiff s accident and the trial.


text:
    DECATUR-ST. LOUIS COMBINED EQUITY PROPERTIES, INC., VENTURE, Combined Equity Properties, Inc., and E. Ralph Lupin, M.D. v. R. Clyde ABERCROMBIE and Leon J. Impastato.
    Nos. CA-2042 to CA-2045 and CA-2788.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 11, 1985.

      Robert G. Jackson, Ltd. A Professional Law Corp., Baton Rouge, for appellants.
    Darleen M. Jacobs, A Professional Law Corp., New Orleans, for appellee.
    Before KLEES, CIACCIO and WARD, JJ.
   CIACCIO, Judge.

In these consolidated cases the only issue before this court on appeal involves the trial court granting two partial summary judgments in favor of plaintiffs, Leon J. Impástate and R. Clyde Abercrombie.

Plaintiffs and defendants entered into an agreement whereby defendants purchased plaintiff's interest in an in commendam partnership for a total of four hundred thousand ($400,000.00) dollars. Defendants paid forty thousand ($40,000.00) dollars in cash and issued a three hundred sixty thousand ($360,000.00) dollars note for the balance. The terms of the note called for payment in monthly installments. Plaintiffs’ petition alleges defendants’ failure to pay monthly installments and seeks recovery of the balance due on the note alleged by plaintiffs to be three hundred forty-five thousand thirty-eight and 62/100 ($345,038.62) dollars.

Defendants answered plaintiffs’ petition by denying all allegations except their status. Further answering, defendants alleged a partial failure of consideration and claimed various damages totalling four hundred six thousand ($406,000.00) dollars as an offset to any amount claimed by plaintiffs. Defendants stated their claim as follows:

9.
That plaintiffs held out, both in writing and under oath, that the partnership interests that they sold to defendant, Combined Equities, Inc., contained certain real properties constituting a hotel development in the New Orleans French Quarter as evidenced by portions of a private placement memorandum executed by plaintiffs and annexed hereto as exhibit D-l.
10.
The plaintiffs further acknowledged same as evidenced by Amended Articles of Partnership dated May 23.. 1979 and by affidavit of plaintiff Abercrombie which are annexed hereto as exhibits D-2 and D-3 respectively.
11.
That, contrary to the foregoing representations, the real property located at 507 Decatur Street stood in the names of plaintiffs and Dr. Ralph Lupin individually.
12.
Despite defendant’s demands to transfer 507 Decatur Street to the partnership so that defendant received its bargained for consideration, plaintiffs have refused to do so, resulting in defendant and others filing suit for a declaratory judgment, specific performance and damages, That case appears at 411 So.2d 677 (La.App. 4th Cir.1982) and is captioned Decatur-St. Louis Combined Equity Propertiess, Inc. Venture v. Abercrombie and lm-pastato.
13.
That matter is currently pending in Civil District Court, Docket No. 80-16195, Division L on remand from the Court of Appeal.
14.
As a result of plaintiffs’ refusal to allow defendant title or access to 507 Decatur Street, the value of the partnership interests has been seriously diluted.
15.
Specifically, an additional $70,000.00 in corrective work was required for the 507 premises because of prior workmanship by plaintiffs and lack of access to said premises.
16.
Further, the partnership has a lease of a portion of said premises to a corporation controlled by plaintiffs at $350.00 a month, which lease is annexed hereto as exhibit D-4. Plaintiffs have refused to pay said rental and accordingly the partnership interests are diluted at the rate of $350.00 a month or $182,000.00 over the term of the lease.
17.
Further, the partnership has lost the rentals on the upper 3 floors due to lack of access to the premises, which value exceeds $54,000.00 to date and which further seriously dilutes the partnership interests.
18.
In addition, administrative costs, construction costs, and all damages and expenses associated with the partnership purpose have substantially increased due to the failure to transfer 507 Decatur, and have specifically related to defendant, Combined Equities, Inc., as the general partner responsible to the in com-mendam investors, all of which damages and expenses are estimated at $100,-000.00.
19.
As a result of the foregoing serious diminution of value as a result of plaintiffs’ actions, defendants are entitled to an offset in any sums due to plaintiffs.
20.
Defendants further aver that there has been no valid executed pledge and delivery of any pledged objects securing defendant’s alleged underlying obligation.
21.
Defendant, Combined Equities, Inc., avers it is the primary obligor, if at all obligated herein, and that all other parties are merely secondarily obligated on the principal obligation, if same exists, and both the prolongation of the alleged debt and serious diminution in consideration operate as a discharge or pro tanto discharge of all secondary parties.

By way of reconvention, defendants reiterated their demands for specific performance, damages and offset. Plaintiffs denied the allegations of defendants’ recon-ventional demand.

Plaintiffs filed two motions for summary judgment on the note. The first motion sought judgment against defendants Combined Equity Properties, Inc., Robert G. Jackson, E. Hardy Swyers, Glen Bodin, Combined Equity Services, and Combined Equity Securities, Inc. The second motion sought judgment against defendants E. Hardy Swyers, Glen C. Bodin, and Robert L. Harger, Jr. With the motions plaintiffs filed supporting memorandums and a single affidavit signed by both plaintiffs stating (1) that they hold the note, (2) the terms of the note, (3) that they ■ personally witnessed defendants sign the note, and (4) that they have not been paid since November 1, 1979. On the first motion the trial court granted summary judgment in favor of plaintiffs against defendants Combined Equity Properties, Inc. and Robert T. Jackson[sic] “in the full sum of three hundred sixty thousand ($360,000.00) [dollars] together with interest at the rate of eight per cent (8%) per annum from October 3, 1979 until paid, attorneys fees equal to twenty-five percent (25%) of the principal and interest due thereon and all costs of these proceedings.” On the second motion the trial judge granted summary judgment against defendants Robert L. Harger, Jr. and Glen C. Bodin using the same language with an additional phrase providing for “a credit for any amounts already paid.”

Under La.C.C.P. Art. 966 a summary judgment can be granted only when there is no genuine issue of a material fact and the mover is entitled to judgment as a matter of law. The purpose of the summary judgment procedural device is to dispose expeditiously of cases involving only issues of law; hence, the mover for summary judgment has a heavy burden of proving that there is no genuine issue of material fact. Fly v. Hand, 376 So.2d 1016 (La.App. 1st Cir.1979). A motion for summary judgment is not a substitute for trial on the merits. Odom v. Hooper, 273 So.2d 510 (La.1973).

In ruling on a motion for summary judgment the court may consider the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits. La.C.C.P. Art. 966. A summary judgment is warranted only when reasonable minds must inevitably conclude from the facts before the court that the mover is entitled to judgment as a matter of law. Honeycutt v. International Paper Co., 421 So.2d 1161 (La.App. 2d Cir. 1982). Any doubt is to be resolved against the granting of summary judgment and in favor of a trial on the merits to resolve disputed facts. Thornhill v. Black, Sivalls & Bryson, Inc., 394 So.2d 1189 (La.1981). Ultimate or conclusionary facts and conclusions of law contained in supporting affidavits cannot be utilized on a summary judgment motion. Thompson v. South Central Bell Telephone Co., 411 So.2d 26 (La.1982).

Plaintiffs’ petition and defendants’ answer and reconventional demand placed at issue numerous factual questions. Plaintiffs’ affidavit accomplished little more than a reiteration of their petition. The affidavit did not address, and therefore did not resolve, all of the factual disputes which had been raised between the parties.

At best, the affidavit could be said to have established that the plaintiffs hold a note issued by defendants on which defendants had ceased making the monthly payments. Defendants raised certain defenses of a factual nature. Factual issues remain to be resolved. Plaintiffs’ affidavit did not carry their heavy burden of proving that there is no genuine issue of material fact.

There remain factual questions concerning the terms of the agreement between the parties, the nature of the consideration bargained for, whether the parties have performed by delivering the agreed upon consideration, and more. Accordingly, the partial summary judgments granted by the district court in favor of plaintiffs are reversed. This case is remanded for further proceedings consistent with this opinion. The costs of this appeal are to be paid by plaintiffs-appellees. All other costs are to await final determination of this case.

REVERSED AND REMANDED.


author: LOBRANO, Judge.

text:
    STATE of Louisiana v. Jarvis DAVIS.
    No. KA-1876.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 11, 1985.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., New Orleans, Harry F. Connick, Dist. Atty., Joanne C. Marier, Asst. Dist. Atty., New Orleans, for appellee.
    Robert Morías Schoenfeld, New Orleans, for appellant.
    Before GARRISON, BARRY and LO-BRANO, JJ.
   LOBRANO, Judge.

Defendant, Jarvis Davis, was charged by bill of information with the January 24, 1983 simple burglary of an inhabited dwelling located at 1524 Magazine Street in the city of New Orleans, a violation of LSA R.S. 14I62.2.

Jointly charged with defendant on the same bill of information were Octave Williams, Byron Davis, and Tyrone Hall.

The defendant was arraigned on February 18, 1983 and pled not guilty. He was tried, along with the co-defendants on June 7, 1983, by a twelve person jury. All were found guilty as charged with the exception of Byron Davis who was acquitted.

On September 2, 1983, defendant was sentenced to serve six years in prison with credit for time served. On September 25, 1983, pursuant to pleading guilty as a multiple offender, defendant was again sentenced to serve six years in the custody of the Department of Corrections.

Defendant appeals this conviction asserting the following specification of error:

The defendants Byron Davis and Jarvis Davis should have had different attorneys representing them because the court allowed statements given by them to the arresting officers into evidence which statements were contrary and which resulted in an actual conflict of interest in the presentation of the defense.

FACTS:

On January 24, 1983, Gloria Burgess, while working the night shift at St. Vincent’s Maternity Home, observed, thru a third floor window, several men engaged in suspicious activity in front of the apartment house at 1524 Magazine Street, located directly across the street.

It appeared that some of the men were standing watch while others entered the building. The witness observed clothing, still on hangers, being removed from the building. She summoned the police. When the police arrived, they immediately picked up Byron Davis who was standing on the corner. They then proceeded to 1524 Magazine Street where they observed a male subject peering out through the hallway of the building. When they saw the police they separated, walked away and then ran in different directions. The two police officers gave chase. Three of the subjects, including the defendant, were apprehended.

The police returned to 1524 Magazine Street. They observed the front door had been kicked in and various property lay at the foot of the stairway. Vincent Torto-rich, the apartment tenant, arrived a short time later. He reported his apartment had been ransacked and that most of his clothes, some jewelry, a pair of shoes and a television were missing.

ASSIGNMENT OF ERROR:

Defendant asserts that his Sixth Amendment Constitutional right to counsel was violated because he and his brother, Byron Davis, were represented by the same defense counsel. Defendant claims this multiple representation rendered his assistance of counsel ineffective.

The contention flows from the fact that the defendant and his brother gave contradictory statements to the arresting officers. Byron Davis stated he did not know the other men picked up in connection with the burglary and that he was not guilty of any wrongdoing. The defendant, Jarvis Davis, stated that Byron was his brother.

Defendant contends that his contradiction divided his defense attorney’s loyalties because neither brother could be put on the witness stand without the possibility of inculpating the other.

Pretermitting the merits of this argument, claims of ineffective assistance of counsel are properly raised by application for Writ of Habeas Corpus and not on appeal. The necessity of a writ application is to allow for a full evidentiary hearing. La. C.Cr.P. Art. 92⅛ et. seq.; State ex rel. Bailey v. City of Monroe, 418 So.2d 570 (La.1982); State v. Prestridge, 399 So.2d 564 (La.1981); State v. Junak, 436 So.2d 1312 (La.App. 4th Cir.1983); writ denied 442 So.2d 454. This assignment of error is without merit.

SUFFICIENCY OF EVIDENCE

This Court must determine, after viewing the evidence in the light most favorable to the prosecution, whether there is sufficient evidence in the record for the jury to have found the defendant guilty beyond a reasonable doubt of every essential element of the offense of simple burglary of an inhabited dwelling. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Graham, 420 So.2d 1126 (La.1982).

In a burglary prosecution, it is not necessary to prove that one charged as a principal made an unauthorized entry. It is sufficient to show that he aided and abetted one who entered without permission. La.R.S. 14:24; State v. Otis, 339 So.2d 343 (La.1976); State v. Rogers, 428 So.2d 932, 934 (La.App. 1st Cir.1983).

Flight and the attempt to avoid apprehension indicates consciousness of guilt, and therefore is one of the circumstances from which a jury may infer guilt. State v. Fuller, 418 So.2d 591, 593 (La.1982). State ex rel Womack v. Blackburn, 393 So.2d 1216 (La.1981).

The prosecution’s chief witness was unable to identify any of the men, and therefore unable to say which entered the building and which remained outside. However, the defendant was one of the men seen leaving the building shortly after police arrived and was caught while attempting to flee from the scene. The mere fact that the prosecution witness was unable to identify the defendant or his co-defendants or to state which role each man played in the perpetration of the offense is not fatal to the state’s case. State v. Rogers, supra; State v. Fuller, supra. Defendant’s own actions at the scene of the offense was sufficient for the jury to have found him guilty of simple burglary.

We also note that the defendant was sentenced to serve six years in the Department of Corrections, with credit for time served. The penalty provision of La. R.S. 14:62.2 states that those convicted of simple burglary of an inhabited dwelling shall serve not less than one year at hard labor without benefit of parole, probation or suspension of sentence, (emphasis added) Thus defendant’s sentence is unlawfully lenient. See, State v. Telsee, 425 So.2d 1251 (La.1983).

In State v. Jackson, 452 So.2d 682 (La.1984) our Supreme Court held that an appellate court should not correct an unlawfully lenient sentence where the defendant alone seeks review. To do so would create a “chilling” effect on a defendant’s right to appeal. We are also mindful of Article 882, as amended by Act 587 of 1984, which provides:

“An illegal sentence may be corrected at any time by the court that imposed the sentence or by an appellate court on review.
A sentence may be reviewed as to its legality on the application of the defendant or of the state:
(1) In an appealable case by appeal; or
(2) In an unappealable case by writs of certiorari and prohibition.
Nothing in this Article shall be construed to deprive any defendant of his right, in a proper case, to the writ of habeas corpus.”

Despite the recent amendment to the above referenced Act we do not interpret same as overruling Jackson supra. We choose to apply the rationale of our bretheren of the Fifth Circuit in State v. Robertson, 459 So.2d 581 (La.App. 5th Cir.1984) and agree that only in those circumstances wherein the State seeks review should we correct a sentence that is unlawfully favorable to the defendant.

Accordingly, defendant’s conviction and sentence are affirmed.

AFFIRMED.

BARRY, J., dissenting with reasons.

BARRY, Judge, dissents in part:

I feel C.Cr.C. Art. 882, as amended by Act 587 of 1984, clearly permits correction of this illegal sentence and was intended to overrule Jackson. See State v. Holmes, 462 So.2d 286 (La.App. 1st Cir.1984).

      . R.S. 14:62.2 provides:
      "Simple burglary of an inhabited home is the unauthorized entry of any inhabited dwelling house, apartment or other structure used in whole or in part as a home or place of abode by a person or persons with the intent to commit a felony or any theft therein, other than as set forth in Article 60.”


text:
    Diane R. BURAS v. Kenneth CARTE, Merit Insurance Company and State Farm Insurance Company.
    No. CA-2169.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 11, 1985.
    Jeff Perigoni, J. Wayne Mumphrey, Chal-mette, for plaintiff/appellant.
    C. Gordon Johnson, Jr., Daniel R. Hynes, Porteous, Hainkel, Johnson & Sarpy, New Orleans, for defendants/appellees.
    Before GARRISON, BARRY and L0-BRANO, JJ.
   LOBRANO, Judge.

Diane R. Buras, appellant, filed this action against her uninsured motorist carrier, State Farm Insurance Co., appellee, seeking recovery under the terms of that policy. Previous to the institution of these proceedings, appellant settled her claims against the alleged tort feasor, and his insurer, but failed to reserve her rights in the release agreement against appellee.

In response thereto appellee filed a motion for summary judgment under the theory espoused in Hoefly v. GEICO, 418 So.2d 575 (La.1982) wherein our Supreme Court held the underinsured/uninsured carrier to be a solidary obligor with the tortfeasor. Applying Civil Code Article 2203 and the post Hoefly decisions, the trial court granted the summary judgment and dismissed appellant’s suit. We reverse.

After this appeal was lodged and brief filed our Supreme Court handed down its judgment in the consolidated cases of Corona v. State Farm, 458 So.2d 1275; Roche v. Cumis Insurance Society, Inc., 446 So.2d 1217; Dalmado v. Cumis Insurance Society, Inc., 446 So.2d 1216; Canci-enne v. Saaverdra, et al., 446 So.2d 1217; and Decedue v. GEICO, 446 So.2d 1216 (1984). That case makes it clear that it is not necessary for appellant to reserve her rights against her own insurance carrier to recover under the uninsured motorist provision.

For the reasons stated in the above cited consolidated cases we reverse the decision of the lower court and remand for further proceedings.

REVERSED AND REMANDED.

      . See Decedue v. GEICO, 441 So.2d 72 (La.App. 5th Cir.1983); Corona v. State Farm Insurance Co., 444 So.2d 763 (La.App. 4th Cir.1984).


text:
    Jeanne Nelson SCHWAB, For and on Behalf of the Minor, Brian Paul SCHWAB v. Paul Joseph GALUSZKA.
    No. CA-2084.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 11, 1985.
    Writ Denied March 15, 1985.

      Robert C. Lowe, Terence L. Hauver, Sessions, Fishman, Rosenson, Boisfontaine & Nathan, New Orleans, for appellant.
    John R. Martzell, New Orleans, for ap-pellee.
    Before GARRISON, BARRY and LO-BRANO, JJ.
   LOBRANO, Judge.

This paternity action is brought by Jeanne Nelson Schwab on behalf of her minor son, Brian Paul Schwab (appellee) seeking to have Paul J. Galuszka, (appellant) declared the natural father of the child. From a judgment of the lower court declaring him to be the father appellant perfects this appeal alleging errors as to law and fact.

The issues presented for our review can be consolidated into two categories for discussion. First, appellant argues that the burden of proof should be greater than a mere preponderance of the evidence, but should be “clear and convincing”. Or, as he further argues, it should be a preponderance of the facts. Second, he argues that the record does not support the findings of fact set forth by the commissioner, and that appellee failed in her burden of proof.

BURDEN OF PROOF

The pertinent dates to be considered in connection with the first issue are as follows. The date of conception is sometime between June 4th and June 12th, 1980. The date of birth is March 8, 1981. The trial dates are May 9 and 10, 1983.

At the time of conception Civil Code Articles 208 thru 212 provided as follows:

“Art. 208. Illegitimate children, who have not been legally acknowledged, may be allowed to prove their paternal descent.”
“Art. 209. In the case where the proof of paternal descent is authorized by the preceding Article, the proof may be made in either of the following ways:
1. By all kinds of private writings, in which the father may have acknowledged the bastard as his child, or may have called him so;
2. When the father, either in public or in private, has acknowledged him as his child, or has called him so in conversation or has caused him to be educated as such;
3. When the mother of the child was known as living in a state of concubinage with the father, and resided as such in his house at the time when the child was conceived.”
“Art. 210. The oath of the mother, supported by proof of the cohabitation of the reputed father with her, out of his house, is not sufficient to establish natural paternal descent, if the mother be known as a woman of dissolute manners, or as having had an unlawful connection with one or more men (other than the man whom she declares to be the father of the child) either before or since the birth of the child.”
“Art. 211. In the case of rape, whenever the time of such rape shall agree with the time of conception, the ravisher may, at the suit of the parties concerned, be declared to be the father of the child.” “Art. 212. Illegitimate children of every description may make proof of their maternal descent, provided the mother be not a married woman.
But the child who will make such proof shall be bound to show that he is identically the same person as the child whom the mother brought forth.”

Subsequent to conception, but prior to birth, Articles 208 and 209 were amended to provide:

“Art. 208. Authorization to prove filiation. Illegitimate children, who have not been acknowledged as provided in Article 203, may be allowed to prove their filiation.”
“Art. 209. Methods of proving filiation.
* * * * * *
... 4. A child of a man may prove filiation by any means which establish, by a preponderance of the evidence, including acknowledgement in a testament, that he is the child of that man. Evidence that the mother and alleged father were known as living in a state of concubinage and resided as such at the time the child was conceived creates a rebut-table presumption of affiliation between the child and the alleged father.”

Subsequent to birth, but prior to trial they were again amended to provide:

“Art. 208. Requirement to prove filiation. In order to establish filiation, a child who does not enjoy legitimate filiation or who has not been filiated by the initiative of the parent by legitimation or by acknowledgment under Article 203 must institute a proceeding under Article 209.”
“Art. 209. Proof of filiation.
A. A child not entitled to legitimate filiation nor filiated by the initiative of the parent by legitimation or by acknowl-edgement under Article 203 must prove filiation by a preponderance of the evidence in a civil proceeding instituted by the child or on his behalf within the time limit provided in this article.”
* * * * * *

At the time of trial, Article 209 had again been amended to provide:

“Art. 209. Proof of filiation.
A. A child not entitled to legitimate filiation or filiated by the initiative of the parent by legitimation or by acknowl-edgement under Article 203 must prove filiation as to an alleged living parent by a preponderance of the evidence in a civil proceeding instituted by the child or in his behalf within the time limit provided in this article.”

Appellant first argues that the applicable codal provisions should be those in effect at the time of conception. In applying these he argues that appellee failed to prove any of the three provisions set forth in Article 209. In addition, he argues that the legislative history of the pertinent civil code articles indicates an intent to establish a burden of proof greater than a mere preponderance of the evidence. In this regard he analogizes the paternity action with the disavowal action set forth in Civil Code Article 187 as construed in Mock v. Mock, 411 So.2d 1063 (La.1982).

Civil Code Article 187 provides:

“The husband can disavow paternity if he proves by a preponderance of the evidence any facts which reasonably indicate he is not the father.”

In interperting this article the Supreme Court, in Mock v. Mock, supra, stated:

“However, the article’s reference is to the proof of non-paternity by reasonably indicative facts, by a preponderance of the evidence. The burden is thus couched differently than a simple preponderance of the evidence.”
* * * * * *
“... The legislature intended a different type of burden, that the husband could only rebut the paternity presumption by proof by a preponderance of the evidence of facts which indicate that he is not the father of the child.” id. at 1066.

Appellant argues that since the burden is greater in a disavowal action it should also be the same in a paternity action.

We disagree with appellant on both of these arguments. We find that the applicable law governing the burden of proof is as set forth in the applicable articles as of the date of trial. Civil Code Article 209, as amended, did not create a new substantive right as there always existed a right to prove paternity. The amendments merely expanded the eviden-tiary methods by which paternity could be proved. Even if, assuming arguendo, the date of conception rather than the date of trial were to be used as the pivotal date we are of the opinion the provisions of Article 209 as amended, would still be applicable. State v. Essex, 427 So.2d 71 (La.App. 4th Cir.1983), writ denied, made it clear that, at least in this circuit, the amendments to Civil Code Article 209 are procedural and aré therefore to be applied retroactively. Although admitting that a conflict exists with other circuits, the court in Essex, supra, stated “... it is clear to us that the articles relate to evidentiary matters that are procedural in nature and should therefore have retroactive effect.” Id. at 74-We therefore hold that it was proper for the lower court to apply the provisions of Article 209, as amended, in disposing of this case.

We also reject appellant’s argument concerning the burden of proof. Civil Code Article 209 is clear. It states “... by a preponderance of the evidence in a civil proceeding...” This is the standard we applied in State v. Essex, supra, and in O’Bannon v. Azar, 435 So.2d 1144 (La. App. 4th Cir.1983). Citing the earlier case of Succession of Washington, 308 So.2d 892 (La.App. 2nd Cir.1975), we stated in O’Bannon, supra, “[t]he burden of proof required by plaintiff is to establish paternity by a preponderance of the evidence.” Id. at 114-8. Thus, we are satisfied that the burden of proof both before and after the above cited amendments to the Civil Code is by a preponderance of the evidence.

Appellant’s reliance on the analogy with the disavowal action of Article 187, and Mock v. Mock, supra, is misplaced. In so arguing he overlooks the provisions of Article 184, as amended by Act. No. 430 of 1976, which provides:

“The husband of the mother is presumed to be the father of all children born or conceived during the marriage.”

In Mock v. Mock, supra, the Supreme Court stated, “[t]he presumption created by this provision has been referred to as ‘the strongest presumption known in law’ ” Id. at 1064■ That Court’s subsequent discussion of the burden of proof in disavowal suits was predicated on the existence of this presumption. The existence of that presumption cannot be ignored when attempting analogy with the paternity suit. Although appellant orally argues otherwise there is no presumption in a paternity suit. The scales of justice stand out evenly in a paternity action and the plaintiff bears the burden by a preponderance as in any other civil proceeding.

Having determined the applicable Civil Code Article and the burden of proof required we now turn to a review of the facts of this case.

FACTS:

Both parties testified that commencing in November of 1979 they met in various places and engaged in sexual activities for several months. They both are employed in the legal profession, appellee is a court reporter, appellant as an attorney.

Appellee testified that she went to appellant’s apartment in early June of 1980, where sexual activities took place on two separate occasions, June 4th and June 12th. Early in July, when she missed a menstrual period, she consulted a physician, who advised her that she was pregnant. Upon learning of her pregnancy, she testified she met with appellant to discuss the situation. Several conversations ensued during which the appellant admitted paternity and advocated an abortion. Once appellee decided that she was not going to have an abortion, she testified appellant became hostile, denied paternity and told her that any further communications would have to be through his attorney.

Appellant admits that he was informed of appellee’s pregnancy in July and that he engaged in several conversations with her advising her to obtain an abortion. He, however vehemently denies having admitted paternity, and states he merely consulted with her in an advisory capacity.

Appellee asserted her love for appellant and denied any sexual activities with any other man from November of 1979.

Appellant testified and admitted the earlier sexual activities, and one of the two last occasions. However the one he agrees took place, he states took place in late May, not June. Further, he testified that sexual activity occurred on that occasion, but he did not complete the sexual act because appellee was drunk. The dates are of critical importance since if appellant’s version is true then he could not have been the father of the child. If on the other hand, appellee’s version is accepted that sexual intercourse occurred in early June, then appellee could have been Brian’s father.

Appellant’s certainty in regard to the date stems from his assertion that he had a rental car on hand at the time as his own car had been involved in an accident and that rental car was returned at the end of May. In further support he introduced an estimate of repairs dated May 30, 1980, which he said were performed and paid for on that date. He testified that he would have returned the rental car immediately thereafter, and therefore when the sexual encounter had taken place, it was in May.

Another disputed fact concerning the date issue was appellee’s testimony that shortly following her recommendation of appellant as an attorney for parties involved in an accident case, the two June encounters were had. The pleadings of that referred to accident case show that the date of the accident was June 1, 1980. Appellee’s testimony shows a complete familiarity with the facts of that case indicating that there were meetings between the parties about that time. Appellant denies intercourse with appellee during the week of June 4th and June 12th but does admit to sexual intercourse following her referral of a case.

On both of these factual issues concerning the dates the Commissioner found it more probable than not that appellee’s version was the more accurate. He expressed doubt that the estimate to appellant’s car, the repairs and payment were all made on the same date. His conclusions in this regard were predicated on the fact that the estimate was for extensive damages requiring 13 hours of labor, and that actual payment of the damages would be more conclusive. Appellant submitted no proof of payment.

Further, appellee’s familiarity with the ease referred to appellant, the accident date in that case, and that fact that appellant represented the parties therein led the commissioner to believe appellee’s version in that regard.

In both instances we cannot say there was manifest error in the lower court’s findings.

The scientific evidence presented consisted of blood grouping tests performed by Dr. Leslie Bryant, Jr., an acknowledged expert in the field. Those studies revealed that the appellant was not excluded from the possibility of being the child’s father, but rather showed a probability of 91.7%. That is, according to Dr. Bryant, it is 91.7% more probable that the appellant is the child’s biological father than the random man in the population.

Appellant argues that the blood tests are inadmissable and are to be discredited since they were partially performed and inter-perted by Dr. Bryant’s technical staff. In essence, he urges a break in the “chain of custody”.

La.R.S. 9:396 provides:

“Notwithstanding any other provision of law to the contrary, in any civil action in which paternity is a relevant fact, or in an action en desaveu, the court, upon its own initiative or upon request made by or on behalf of an person whose blood is invlived may, or upon motion of any party to the action made at a time so as not to delay the proceedings unduly, shall order the mother, child, and alleged father to submit to blood tests. If any party refuses to submit to such tests, the court may resolve the question of paternity against such party or enforce its order if the rights of others and the interests of justice so require.”

La.R.S. 9:397 provides:

“The tests shall be made by experts qualified as examiners of blood types who shall be appointed by the court. The experts shall be called by the court as witnesses to testify to their findings and shall be subject to cross-examination by the parties. Any party or person at whose suggestion the tests have been ordered may demand that other experts, qualified as examiners of blood types, perform independent tests under order of court, the results of which may be offered in evidence. The number and qualifications of such experts shall be determined by the court.”

Appellant supports his “chain of custody” arguments with citation of criminal cases. Clearly the purpose of the chain of custody evidentiary rule is to prevent evidence from being tampered with, or being lost, etc. In this civil proceeding, the above cited statutes are intended to provide the court with scientific evidence, to be reviewed and considered with the other evidence in reaching a decision. First we do not agree that there was a so-called “break” in the chain of custody. The tests were performed under the supervision of Dr. Bryant, and were conducted by technical staff. We find no evidence that they were not performed in accordance with standard practices. Further appellant’s argument goes to the weight of the scientific evidence rather than its admissability.

Factually appellant argues that the failure of appellee to call her sister as a corroborating witness to certain facts when her sister was present in the courtroom mandates that there be a presumption in his favor that the facts were not true. We agree to a certain extent in this regard. The failure of a corroborating witness to testify when available does create a presumption that his testimony would be adverse. However, it is merely one factor that must be weighed along with the other evidence. In this same regard we note that appellant failed to produce evidence of payment of his car damages in order to establish a precise date. He also failed to submit to another blood test, even when ordered to do so by the lower court. These factors, although standing alone are inconclusive, are to be considered with the other evidence presented. Standing alone, perhaps these instances on the part of both parties kept the scales of justice balanced.

Appellant finally argues that, even assuming there was sexual intercourse between the parties on June 4, 1980 appellee failed to prove that that date was the date of conception. The testimony of medical experts is somewhat contradictory on this issue. Dr. LeBoeuf stated that assuming appellee’s last menstrual cycle began May 23, 1980, and that the child was a post term baby, a June 4th or June 12th conception date was altogether possible. Dr. Wiede-man testified, “I don’t think you can pin down any conception date because it’s such an inexact science and its a pure estimate.”

We conclude that the evidence of the exact conception date is another factor to be considered along with the other evidence submitted.

After review of all the evidence, applying the applicable standard of proof, we cannot say that the lower court was clearly wrong in its determination that appellant is the natural father of the minor, Brian Paul Schwab. All costs to be borne by appellant.

AFFIRMED.


author: WARD, Judge.

text:
    STATE of Louisiana v. Norris JAMES.
    No. KA-1823.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 11, 1985.

      Dwight Doskey, Orleans Indigent Defender Program, New Orleans, for defendant-appellant, Norris James.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Joanne C. Marier, Asst. Dist. Atty., New Orleans, for plaintiff-ap-pellee, State of La.
    Before REDMANN, C.J., and KLEES and WARD, JJ.
   WARD, Judge.

Norris James was tried by a jury and convicted of two counts of first degree murder in violation of La.R.S. 14:30. James was sentenced to mandatory life imprisonment at hard labor without benefit of parole, probation or suspension of sentence, each count to run concurrently. James filed this appeal asking that we review the record for errors patent. We have done this and we have not found any errors patent.

We have also reviewed the record for sufficiency of the evidence to determine if it supports the conviction. State v. Ray-mo, 419 So.2d 858 (La.1982). We find that viewing the evidence in the light most favorable to the prosecution, a rational finder of fact could have found that each essential element of first degree murder had been proved. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

The convictions and sentences are affirmed.

AFFIRMED.