text:
    STATE of Louisiana v. Larry GUIDRY.
    No. 83-KA-461.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 8, 1983.

      William C. Credo, III, Abbott Reeves, Asst. Dist. Attys., Gretna, for plaintiff-ap-pellee.
    Harold D. Marchand, New Orleans, for defendant-appellant.
    Before BOUTALL, BOWES and GRIS-BAUM, JJ.
   GRISBAUM, Judge.

The trial court denied the defendant’s motion to suppress the evidence, two tablets of methaqualone found in a search of his outer clothing, and he appeals. We affirm.

On July 17, 1982, at approximately 11:15 p.m., the defendant, Larry Guidry, was riding his motorcycle in a westerly direction on Metairie Road, Metairie, Louisiana. He was observed by the arresting officers to have struck another vehicle in traffic and continue on his way in an erratic, hazardous manner. The officers signaled Guidry to pull over. The deputies placed him on their car and searched his outer clothing. Two pills resembling aspirin tablets, which were later identified as methaqualone, were discovered in the defendant’s left shirt pocket. Guidry was issued two traffic citations, one for speeding and one for careless operation of a motor vehicle, and was then transported to lockup.

A bill of information was filed by the Jefferson Parish District Attorney’s Office against the defendant for violation of Louisiana Revised Statute 40:967 C, possession of methaqualone. Thereafter, the defendant filed a motion to suppress .the evidence which was heard on October 27, 1982 and denied. On December 6, 1982 defendant plead guilty as charged reserving the right to appeal the ruling on the motion to suppress pursuant to State v. Crosby, 338 So.2d 584 (La.1976).

The issue is whether the warrantless search was incident to a lawful arrest so as to be constitutionally authorized under the fourth amendment of the United States Constitution as incorporated into the fourteenth amendment, United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973), Gustafson v. Florida, 414 U.S. 260, 94 S.Ct. 488, 38 L.Ed.2d 456 (1973), and article I § 5 of the Louisiana Constitution.

Guidry claims the arresting officers failed to explain to him prior to the search that he had been placed under arrest and, he argues he was not placed under arrest until after the search was made and metha-qualone tablets discovered.

To the contrary, we find there was an actual and lawful arrest preceding the search and that the methaqualone tablets were properly admitted by the trial court.

The arresting officer was authorized to make the arrest pursuant to article 213 of the Louisiana Code of Criminal Procedure, which provides that a peace officer, without a warrant, may make an arrest when the person to be arrested has committed a misdemeanor and the arrest is made immediately or on close pursuit. Arrest is defined in article 201 of the Louisiana Code of Criminal Procedure as the taking of one person into custody by another with actual restraint.

The Louisiana Supreme Court defined arrest for the purposes of a search incident thereto as follows:

Not every authorized detention constitutes an “arrest” which justifies incident to it a search of the person arrested; the arrests contemplated which do justify search of the person incident to it are full-custody arrests reasonably and lawfully made with the purpose of booking the person for the offense charged.

State v. Breaux, 329 So.2d 696 (La.1976).

Deputy Pinero, the arresting officer, insisted at trial that it was his intention to arrest Guidry prior to searching him and that he did, in fact, make the arrest prior to search.

Guidry claims Deputy Pinero did not advise him he was under arrest. Even if this is the case, where a person is detained for the purpose of a full-custody arrest, the fact that he is not verbally advised of the arrest until after the search does not alter the fact of the arrest. State v. Bourgeois, 388 So.2d 359 (La.1980).

The trial court, based upon testimony at trial, found the arrest preceded the search. Assessing the credibility of witnesses is a matter in which the trial judge’s discretion is broad, and it is a matter concerning which he is particularly well situated. The trial judge chose to believe the testimony of the police officer, and we find no abuse of discretion in his reaching this decision.

The constitutionally authorized war-rantless search incident to a lawful arrest is a narrowly drawn exception to the per se warrant rule under the fourth amendment of the United States Constitution as incorporated into the fourteenth amendment, Robinson, supra, and article I § 5 of the Louisiana Constitution. An arbitrary or non-customary arrest of a traffic offender does not support a warrantless search incident thereto. See, Breaux, 329 So.2d 696 at 700.

Certainly, the decision to arrest Gui-dry was not an arbitrary one. Deputy Pinero testified he and Agent Krafberg observed the defendant’s vehicle strike a car in the 2500 block of Metairie Road. The defendant continued on his way, speeding and careening from the road onto the shoulder and back again. He was stopped by the police approximately nine blocks away from the original impact. His reckless behavior posed a danger to life and property and indicated a need for custodial supervision. The serious danger inherent in this particular factual situation distinguishes the defendant’s violations from the typical traffic violation for which arrest is not customary.

For the reasons assigned, the judgment of the trial court is affirmed.

AFFIRMED.

      . Guidry alleges the two citations were issued prior to the search and indicate an intention on the part of the officers not to arrest him but, rather, to summons him to court for the traffic violations. Guidry cites La.C.Cr.P. art. 211. The fact of the issuance of the citations does not lend support to his allegations. Deputy Pinero testified that the citations were issued simultaneously with the search, and, in any event, the deputy did not require Guidry to sign the summons. Further, he testified that citations are always issued, regardless of whether there is an arrest.


source: Caselaw Access Project

author: DUFRESNE, Judge.

license: Public Domain

text:
    ALLAN E. AMUNDSON, INC. v. Warren HOPPMEYER, et ux.
    No. 83-CA-437.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 8, 1983.

      Steven Griffith, Destrehan, for plaintiff-appellee-appellant.
    Leon C. Vial, III, Hahnville, for defendant-appellant-appellee.
    Before KLIEBERT, CURRAULT and DUFRESNE, JJ.
   DUFRESNE, Judge.

This is an appeal by Warren and Kay Hoppmeyer, defendants-appellants, from a judgment in favor of Allen E. Admundson, Inc., plaintiff-appellee, for the value of work done on a new house which was not contemplated in the original plans and specifications. Because we find no manifest error in the trial court’s determinations that the extra work was authorized by the Hoppmeyers, and that the value of that work was $4,454.76, we affirm.

The parties to this suit entered into a written contract for construction of a home. Pertinent here is the clause which states:

[Allen E. Amundson, Inc. and Allen E. Amundson, Jr.] propose to furnish all labor, materials, equipment, filing and permit fees to build and complete the residence as per plans and specs (sic) for the sum of $71,000....

All parties agree that during negotiations as well as at the signing of the contract, it was their understanding that the job would be done on a 10% cost-plus basis up to $71,000, and in the event the total was less than the stated price, the difference would accrue to the Hoppmeyers. The Hoppmey-ers further testified that they were assured by Amundson that the cost could not possibly go over the stated price. Amundson similarly testified that had the original plans and specifications been followed, he could have completed the job within the contract price. There is further agreement that the Hoppmeyers did authorize some changes in the plans.

On satisfactory completion of the house, Amundson presented the Hoppmeyers a bill for $79,643.61, $71,000 of which was paid through pre-arranged financing. After some minor adjustments, the balance was determined by Amundson to be $8,353.08, as of February, 1981. Shortly thereafter, on the urging of Amundson, Warren Hoppmeyer made inquiries at a bank to borrow this money but decided not to do so. By May, 1981, the Hoppmeyers had made two payments on this amount totaling $2,700, and the balance was further adjusted downward by an additional $880 because of an overcharge by the plumbing subcontractor, leaving a new balance of $4,773.08. Over the next several months, seven additional payments totaling $775 were made reducing the balance to $3,998.08. At that point, Warren Hoppmeyer wrote Amundson a letter to the effect that he was doing his best to pay, but that his financial situation prohibited further payments at that time.

Amundson thereupon sued for the balance allegedly due. The Hoppmeyers reconvened alleging that they entered into a contract for a price not to exceed $71,000, and that Amundson had in fact done $3,700 in extra work. They further erroneously alleged that they had paid Amundson the full amount of $79,643.61, and sought a return of the $4,943.61 difference between the amount allegedly paid and the $74,700 admittedly owed.

After trial on the merits, the trial court determined that the agreement between the parties was a cost-plus contract up to $71,000, but that any amounts over $71,000 resulting from changes made by the Hoppmeyers were to be paid by them. She further found that Amundson had proved that at least $4,454.76 of the overage was due to changes approved by the Hoppmey-ers. Judgment was therefore rendered in Amundson’s favor in that amount, less the $3,475 already paid on the balance, over $71,000 or $979.76. The Hoppmeyers now bring this appeal from that judgment, and Amundson cross appeals.

The Hoppmeyers allege here that the trial court erred in finding first, that they approved any changes in the plans of the house which resulted in an increase in cost, and second, that Amundson proved the cost of these alleged changes to be $4,454.76. Amundson alleges that the court erred in its interpretation of the written agreement as a fixed price contract over $71,000, that the contract was in reality a cost-plus agreement for the total cost, and therefore that he is entitled to the full price of $79,-643.61. His second allegation is that he is alternatively entitled to the full amount on the theory of quantum meriut. His final argument is that he is also entitled to the full $8,353.08 overage in that there was a transaction or compromise which gave rise to an obligation separate from that arising under the original contract.

We reject both parties’ contentions.

The general rule as to written contracts is that parole evidence cannot be admitted to vary their terms. Civil Code Art. 2676. The exceptions to this rule are where a party alleges fraud, mistake, illegality or want or failure of cause, or where the written agreement is ambiguous, Mott v. Phillips, 372 So.2d 223 (La.App. 3rd Cir.1979). Here, none of the above exceptions are applicable. The dispute as to the nature of the agreement is simply whether it is a fixed price or a cost-plus contract. The document itself is unambiguous. It is clearly a fixed-price building agreement for $71,000, and we so find.

The legal consequences of such a contract are that the builder will only recover the fixed price for completion of the work, regardless of his actual costs, unless the buyer makes changes in the plans and specifications which increase the final cost, Civil Code Art. 2764. Of course, the builder bears the burden of proving both the buyer’s authorization for, and the cost of any changes made, Roberts v. Rolene Corp., 415 So.2d 546 (La.App. 1st Cir.1982).

The Hoppmeyers contend here, first, that Amundson failed to prove that they authorized changes in the plans. We are perplexed by this argument. In their reconventional demand, they specifically averred that extra work in the amount of $3,700 was done by the contractor. They did not contest that the amount owed was above the fixed price. The very term “extra work” can have no other meaning than work not contemplated in the original plans. Moreover, both the Hoppmeyers testified at trial that they did approve extra work which they then admitted to have cost about $1,500. Clearly then, by the defendant’s own pleadings and testimony, it was established that certain changes were approved by them.

In our reading of the record, the dispute is therefore, not whether changes were approved, but rather the value of these changes. This of course goes to the Hoppmeyer’s second allegation of error, which is that Amundson failed to prove the cost of the extras.

On this issue, we note that the rule as to factual findings by a trial court is that such findings will not be disturbed on appeal absent some manifest error, Canter v. Koehring Co., 283 So.2d 716 (La.1973). Here, while admittedly the builder’s proof was less than overwhelming, we cannot say that it was manifestly insufficient to establish his claim for $4,454.76 of the $8,353.08 overage. That proof basically was a ledger itemizing all costs for the house which listed in a separate column “extras” totaling $4,454.76. Testimony by all parties established that these “extras” were generally related to changes approved by the Hoppmeyers. We conclude that the evidence was thus sufficient to establish a claim for that amount.

As to Amundson’s cross-appeal, he first alleges that the original contract was a cost-plus agreement, and therefore that he is entitled to the full amount of the overage. We have already determined that the unambiguous written contract was for a fixed price, and thus reject this allegation.

We similarly find no merit in his claim in quantum meruit or more properly, the actio de in rem verso. The five requisites to sustain this action, are an impoverishment, an enrichment, a connection between the impoverishment and the enrichment, absence of justification or cause for the enrichment or impoverishment, and a lack of any other remedy at law, Minyard v. Curtis Products, Inc., 251 La. 624, 205 So.2d 422 (1967). Here, the fifth criterion has clearly not been met. Amundson had a specific remedy under La.Civ.Code Art. 2764, and recovered a portion of the overage under the provisions of that article. His failure to recover the total amount sought was not due to lack of a legal remedy, but simply to his failure to put on proof of the full amount sought in his original petition.

As final argument here, is that there was a transaction or compromise between him and the Hoppmeyers as to the overage at the time he presented his bill. He bases this allegation on the facts that Warren Hoppmeyer’s calculations on the ledger sheets showed a balance of $8,353, that Hoppmeyer made inquiries about a loan in this amount, and that he acknowledged the total debt by paying $3,475 of the overage and sending a letter to Amundson stating that the remainder would be forthcoming when he was able to pay.

Such acts, however, do not constitute a transaction or compromise. Article 3071 of the Civil Code requires in precise terms that such an agreement must be reduced to writing. This requirement has further been interpreted to mean that the agreement must be signed by both parties, Felder v. Georgia Pacific Corp., 405 So.2d 521 (La.1981). Here, there is no document or agreement in the record which is signed by both parties in regard to payment of the overage. We thus find that no transaction or compromise was ever perfected, and so reject this allegation of error.

For the foregoing reasons, the judgment of the trial court is affirmed. Each party to bear his own costs of the appeal.

AFFIRMED.


text:
    STATE of Louisiana v. James COCKERHAM, Jr.
    No. 83-KA-453.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 8, 1983.

      John Standridge, Dennis Krystek, New Orleans, for defendant-appellant.
    John M. Mamoulides, Dist. Atty., Philip Boudousque, Asst. Dist. Atty., Parish of Jefferson, State of La., Andrea M. Price and William Credo, III, Asst. Dist. Attys., Research and Appeals, Gretna, for plaintiff-appellee.
    Before KLIEBERT, CURRAULT and DUFRESNE, JJ.
   DUFRESNE, Judge.

Defendant, James Cockerham, Jr. was charged by Bill of Information with a violation of R.S. 14:64 (armed robbery). After pleading not guilty, the defendant was tried and found guilty as charged by a jury and the trial judge imposed a sentence of twenty years at hard labor without benefit of parole, probation or suspension of sentence. Defendant appeals his conviction submitting four assignments of error.

FACTS

On July 23, 1982, at about 10:27 P.M. Elizabeth Gilbert, an assistant manager for Tenneco Oil Co. assigned to store # 4116 located in Kenner, Louisiana, was preparing to deposit cash receipts into the store safe. As she was filling out the deposit envelope,

[T]his man walked into the store and told me to put the money in a paper bag. I looked at him and laughed and thought that it was a joke and he said, “No, I’m serious.” He pulled his shirt up to where I could see a gun and he said for me to hurry and that’s when I started putting the money in the paper bag. Then he asked me to open the register and put the money in the bag and I did that. Then he told me to lay down on the floor, which I did, and then he left.

Immediately following the robbery, she gave a description of the perpetrator to the investigating officers. On August 3, 1982, Detective Henry Richardson of the Narcotics Division of the Kenner Police Department went to interview another employee at the above Tenneco location concerning an unrelated incident. While he was there, Ms. Gilbert asked to see the photo lineup he was displaying to the other employee. She viewed the twelve photos, stopping briefly at photograph #4. After looking at all the photos, she returned to # 4 and identified the person depicted as the perpetrator of the armed robbery. Photograph # 4 was identified as the defendant, James Cockerham, Jr.

At trial, the defendant produced an alibi defense. His mother, aunt, and cousin testified that he was in Alexandria from July 19-25 and accounted for his activities during that time period. A traffic accident report from July 22nd and his mother’s phone records were introduced at trial to substantiate the witnesses’ testimony.

ASSIGNMENT OF ERROR NUMBER 1

By this assignment, the defense asserts that during direct examination of the victim by the District Attorney, the state’s witness was permitted to repetitively restate the sequence of events of the holdup, and that such repetitiveness over emphasized the crime and unduly prejudiced the jury.

The State’s entire case in tthis matter was based on the identification by the victim, Ms. Gilbert, of the defendant as the perpetrator of the armed robbery. Factors determining the reliability of an identification include the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the time of the identification, and the time between the crime and the identification. Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977) and State v. Lindsey, 404 So.2d 466 (La.1981).

In reiterating the sequence of events of the robbery, it is readily apparent that the state was attempting to demonstrate to the jury that the victim had ample opportunity to view the perpetrator at close proximity, under good lighting conditions, rather than to overemphasize the crime as urged by the defense. The record reflects that twice the State made the victim demonstrate to the jury how the defendant had shown her the gun in his belt. Although this demonstration was repetitive, its relevancy became obvious later in the case. The defendant has a scar on his left arm and this was not observed by the victim during the commission of the crime; thus, the question of how prominently the defendant’s left arm was displayed to the victim was important. The State’s repetitiveness in having the victim show that the defendant reached for the gun with his right hand was relevant to the case and further, the examination was not unduly prolonged; therefore, this assignment of error is without merit.

ASSIGNMENT OF ERROR NUMBER 2

The defense asserts that misstatements of fact and of inferences to be drawn from evidence were made by the state during closing argument, and that such remarks deprived the defendant of a fair trial.

ARGUMENT

The defense in brief cites three portions of the state’s closing argument and rebuttal that it now finds objectionable. A reading of the transcript reveals no defense objection at the designated portions of the record. Nor does it reveal any objection regarding the issues argued in brief which could have been deemed continuing.

C.Cr.P. art. 841 provides in pertinent part “[a]n irregularity or error cannot be complained of after the verdict unless it was objected to at the time of the occurrence.”

The contemporaneous objection rule has two purposes: (1) to put the trial judge on notice of the alleged irregularity so that he may cure the problem, and (2) to prevent a defendant from gambling for a favorable verdict and then resorting to appeal on errors that might easily have been corrected by objection. State v. Thomas, 427 So.2d 428 (La.1982).

The law is well established that a reviewing court will not consider an objection raised for the first time on appeal. State v. Skipper, 387 So.2d 592 (La.1980). We find no merit in this assignment of error.

ASSIGNMENT OF ERROR NUMBER 3

By this assignment, the defense asserts that the remarks made by the state during rebuttal argument constituted impermissible comment concerning other crimes perpetrated by the defendant and that the trial court’s failure to grant a mistrial under the circumstances was reversible error.

The disputed portion of the rebuttal argument is excerpted:

Ladies and gentlemen, although we do have a crime here, as mentioned, the defense counsel would have us progress to the point that every time a crime is committed that we have a video tape and a cataloguing of the entire incident and it would tell us the man’s name and his license number and then we would just go to his house and arrest him. That is not common sense, but with common sense—there are many robberies that occur with no other evidence except that someone goes into a Tenneco Station or a Time Savers and sticks a gun in someone’s face and says, give me your money or give me your life.
C.Cr.P. art. 770 provides in pertinent part
Upon motion of a defendant, a mistrial shall be ordered when a remark or comment, made within the hearing of the jury by the judge, district attorney, or a court official, during the trial or in argument, refers directly or indirectly to:
(2) Another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible.
An admonition to the jury to disregard the remark or comment shallnot be sufficient to prevent a mistrial.

The transcript of the rebuttal argument reveals no attempt to link the defendant with any robbery other than that charged. Rather, the comments of the prosecutor appear to be an apology to the jurors for the quantity of evidence produced at trial by the state coupled with an explanation that crimes such as the armed robbery of a convenience store often produce few tangible clues leading to the identity of the perpetrators. The expressions “Tenneco or Time Saver” have become generic terms in the vernacular to mean convenience stores.

The comments constitute an answer to the closing argument of defense counsel where it was asserted that the state produced insufficient evidence upon which to base a conviction.

Yes, ladies and gentlemen, I’m going to tell you that a minute and a half is not a very long period of time. Who is able, after that short period of time, to come in here and say that this is the man that did it. She said I am positive. I am positive and I am so sure about this that I am going to come in here and ask you to convict this person based on that testimony—...

Accordingly, the remarks of the prosecutor fall within the proper scope of rebuttal as set forth in C.Cr.P. art. 774, which provides;

The argument shall be confined to evidence admitted, to the lack of evidence to conclusions of fact that the state or defendant may draw therefrom, and to the law applicable to the case.
The argument shall not appeal to prejudice.
The state’s rebuttal shall be confined .to answering the argument of the defendant.

Even if arguably improper in content (mention of a store which was not robbed), the remark did not fall within the specific grounds for a mistrial under C.Cr.P. art. 770, supra. Nor did the comment amount to prejudicial conduct that would make it impossible for the defendant to obtain a fair trial, mandating a mistrial under C.Cr.P. art. 775.

The remedy available to the defendant is designated by C.Cr.P. art. 771 which provides for an admonition by the trial court when an irrelevant or immaterial remark of such a nature that it might create prejudice against the defendant is made by the prosecutor within the hearing of the jury-

In the instant case, the court ruled as follows, “[t]he court denies the motion for mistrial and this court instructs the jury to disregard any comment about any other armed robbery because we are only concerned today with the alleged armed robbery that is before this court.”

Although, overruling the objection, the trial judge admonished the jury to disregard any argument concerning extraneous offenses. Accordingly, the defendant was given the remedy afforded by Article 771.

The law is well established that a reviewing court will not overturn a conviction on ground of improper argument unless the court is thoroughly convinced that the remarks influenced the jury and contributed to the verdict. State v. Johnson, 406 So.2d 153 (La.1981).

This assignment of error is without merit.

ASSIGNMENT OF ERROR NUMBER 4

By this assignment, the defense asserts that the trial court erred in failing to grant defendant’s Motion for New Trial which alleged that the state failed to prove beyond a reasonable doubt that the defendant was guilty of armed robbery.

C.Cr.P. art. 851 provides in pertinent part “[t]he Motion for New Trial is based upon the supposition that injustice has been done the defendant, and, unless such is shown to have been the case, the motion shall be denied, no matter upon what allegation it is grounded.”

La.R.S. 14:64 defines armed robbery as “[t]he theft of anything of value from the person of another or which is in the immediate control of another by use of force or intimidation, while armed with a dangerous weapon.”

In order to convict a defendant of armed robbery, the following must be proven:

1.) that the defendant committed the theft of something of value belonging to another; and

2.) that the thing of value stolen was in the possession or in the immediate control of the victim when it was stolen; and

3.) that the defendant used force or intimidation against the victim in order to accomplish the theft; and

4.) that the defendant was armed with a dangerous weapon.

The victim in the present case testified that the perpetrator stole the cash deposit she was preparing for the bank and also money from the register. As the cashier, the monies were in her control, and were turned over to the perpetrator because he displayed a gun to her and intimates its use. The evidence presented satisfies all the elements of the offense of armed robbery.

Upon review, either by the trial court pursuant to the provisions of C.Cr.P. art. 821 or upon the appeal of the case, the Jackson standard is utilized to determine the sufficiency of the evidence.

In Jackson v. Virginia, 443 U.S. 307, 320, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) the Supreme Court held that “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”

The key issue in this case, however, was not whether the crime had been committed, but whether it was the defendant who committed it. Employing the Jackson standard set forth above, the state was required to negate any reasonable probability of misidentification in order to carry its burden of proof.

At trial, the victim testified she observed the robber at close range for about 90 seconds. She gave a description of the subject to the police shortly after the incident which substantially conformed to the defendant’s characteristics, except for a scar on his left arm. Shortly thereafter the victim selected the defendant’s photograph from a lineup. In addition, she made two in-court identifications and testified she was positive that the defendant was the perpetrator of the armed robbery.

The defendant offered alibi testimony which placed him in Alexandria at the time of the offense. To corroborate the testimony, a police report of an accident occurring on July 22, 1983, in Alexandria involving the defendant and his car was introduced. The report reflects that the damage was moderate and the vehicles were moved pri- or to the investigating officer’s arrival on the scene. It is reasonable to assume that the damage to the defendant’s vehicle did not render it inoperable. Also presented was the defendant’s mother’s telephone bill which reflects numerous calls to Alexandria during the period the defendant was alleged to have been there.

It is not the function of an appellate court to evaluate the credibility of witnesses and overturn the trial court on its factual determination of guilt. State v. Richardson, 425 So.2d 1228 (La.1983).

The jury apparently evaluated the alibi testimony presented and declined to accept it as evidence conclusive of the defendant’s presence in Alexandria at the time of the robbery.

As noted in State v. Arnaud, 412 So.2d 1013, 1019 (La.1982), “[i]t is the jury’s job to determine the credibility of the testimony, and we will not second-guess them in this case.”

Viewing all the evidence in the light most favorable to the prosecution and recognizing the state’s burden to negate any reasonable probability of misidentification, it appears that sufficient evidence was produced for a reasonable trier of fact to conclude beyond a reasonable doubt that the defendant was the perpetrator of the armed robbery of Ms. Gilbert.

This assignment lacks merit and the ruling of the trial court is affirmed.

Accordingly and for the above reasons, the conviction and sentence are affirmed.

AFFIRMED.


text:
    Hugh D. WILSON, Individually and as Administrator of the Estate of Hugh Walter Wilson and Mrs. Dorothy Ann Nason Wilson v. CHART HOUSE, INC., Dixie Leasing of New Orleans, Inc., Saunders Leasing System, Inc., Steven R. Clark, Liberty Mutual Insurance Company and Leatherby Insurance Company.
    No. 83-CA-495.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 8, 1983.

      Adams & Reese, Mark J. Spansel, Joel L. Borrello, New Orleans, for plaintiff-appellant.
    Jones, Walker, Waechter, Poitevent, Car-riere, Denegre, R. Henry Sarpy, Jr., Montgomery, Barnett, Brown & Reed, Gus A. Fritchie, III, James B. Irwin, New Orleans, for defendants-appellees.
    Before CHEHARDY, KLIEBERT and DUFRESNE, JJ.
   DUFRESNE, Judge.

This is a suit for damages in tort arising out of a tragic motorcycle accident which occurred on August 12, 1975. The plaintiffs, who are our appellants, are seeking damages for the wrongful death of their son who was killed as he was returning from work on Louisiana Highway 48, commonly known as the Jefferson Highway, at the point where Louisiana 48 becomes an overpass that crosses over the traffic circle of the Huey P. Long Bridge near Clearview Parkway, in Jefferson Parish.

The accident occurred at approximately 4:00 P.M. as the decedent reached the crest of the overpass, lost control of his motorcycle, and skidded into the rear of a tractor-trailer which had broken down and was stationary in the right lane. The decedent was killed instantly.

The defendants are Chart House, Inc., lessee of the tractor (stipulation) and owner of the trailer; Steven Clark, an employee of Chart House, Inc., who was operating the tractor in the course and scope of his employment with Chart House, Inc. (stipulation); Dixie Leasing of New Orleans, Inc., owner of the tractor leased to Chart House, Inc. (stipulation); Saunders Leasing System, Inc., which assumed the tort liabilities of Dixie Leasing of New Orleans, Inc. (stipulation); and Liberty Mutual Insurance Company and Leatherby Insurance Company, which insured the tort liability of the foregoing defendants.

The trial court rendered judgment in favor of the defendants based on the legal conclusion that the plaintiffs’ decedent was contributorily negligent. From this judgment the plaintiffs have appealed. We affirm.

The underlying issue to be resolved by this court on-appeal is whether the decedent was contributorily negligent, thus barring the plaintiffs’ recovery.

The trial judge articulated the reasons for his decision which are as follows:

“There can be no question of the negligence of the defendant driver, Steven Clark. As he drove to the top of the overpass, he heard a loud noise in his rig and, thinking it would damage the vehicle to drive it further, he opted to leave it on the traveled roadway. There is conflicting testimony on the question of whether he properly placed out warning devices; but, the testimony leaves little doubt that he was not protecting traffic reasonably at the time of the accident but was, instead, sitting on the guard rail of the overpass. Negligence is established clearly, Dixie Drive It-Yourself System v. American Beverage Co., [242 La. 471], 137 So.2d 298.
But the demonstrated negligence of Hugh Walter Wilson is equally compelling. The immobile vehicle had been stopped for a considerable time before the accident, with traffic proceeding around it without mishap. Taken together, the testimony of the bus driver, Donald Clay, Officer Mike Sunseri, and Mr. Dart leads necessarily to the conclusion that in the clear weather of the day, the truck was Risible for a very long distance at least near to one thousand feet for one traveling in the direction traveled by Mr. Wilson; and that Mr. Wilson was driving at an excessive rate of speed under the circumstances then prevailing. The testimony of Mr. Diliberto taken by way of deposition, indicated that when he first saw the truck he thought it was stopped naturally as a consequence of the traffic. The testimony of Mr. Dart is particularly enlightening in the matter of speed, his having used conversative factors in making his computation and arriving at a speed of 53 M.P.H., without taking impact into consideration.
The logical inference of his testimony is that if his testimony had taken into consideration impact speed and that the braking action of the motorbike was applied in an uphill grade rather than a level surface, the speed of the motorbike would have been demonstrated to be greater still.
While the record amply demonstrates negligence on the part of the defendant driver, the evidence also indicates contributory negligence on the part of Mr. Wilson, which was a proximate cause of the accident.”

The evidence in the record provides reasonable basis for a determination that the accident did not result from a particular risk from which the tractor-trailer (defendant) driver’s duty to park correctly was imposed to protect. Because the driver of the tractor-trailer was in violation of law in parking on the overpass, the defendants had the burden of proving that the decedent-motorcyclist was guilty of contributory negligence.

It is our opinion that the trial court reasonably determined that the infraction of the parking or stopping statute by the driver of the tractor-trailer was “a legal cause” of the accident.

Consistently, the courts in Louisiana have decided the issue of whether the risk resulting in a person’s harm was within an imposed duty, by adopting a two pronged query. These two principal questions are: First, was the conduct complained of a cause in fact of the harm? Secondly, if so, did the actor breach a legal duty imposed to protect against the particular risk involved? Carter v. City Parish Government of East Baton Rouge Parish, 423 So.2d 1080 (La.1982); LeBlanc v. Department of Highways, 419 So.2d 853 (La.1982); Hill v. Lundin Associates, Inc., 260 La. 542, 256 So.2d 620 (1972).

When the rule relied upon for imposing responsibility is based upon a statute, the court must attempt to interpret the legislative intent as to the risk contemplated by the legal duty, often resorting to the court’s own judgment of the scope of protection intended by the legislature. Hill v. Lundin, supra. See also Pierre v. Allstate, 257 La. 471, 242 So.2d 821 (1970) and Dixie Drive It Yourself System v. American Beverage Co., 242 La. 471, 137 So.2d 298 (1962). The identical public policy considerations which act to motivate our legislative body to enact laws to impose duties to protect our unsuspecting citizency from unreasonable risks of harm should also be applied by the judiciary in making its determination. Hill v. Lundin, supra.

The statute we are concerned with on appeal can be found at LSA — R.S. 32:141 which provides:

“Upon any highway outside of a business or residence district, no person shall stop, park, or leave standing any vehicle, whether attended or unattended, upon the paved or main traveled part of the highway when it is practicable to stop, park, or leave such vehicle off such part of said highway, but in every event an unobstructed width of the highway opposite a standing vehicle shall be left for the free passage of other vehicles and a clear view of such stopped vehicles shall be available from a distance of two hundred feet in each direction upon such highway.”

This statute imposes upon vehicle operators, a duty not to stop or park a vehicle on the traveled portion of a highway and a duty to leave an unobstructed width for the passage of other vehicles.

The tractor-trailer driver’s parking violation was a cause in fact of the accident because the tragic incident would not have occurred if his vehicle had not been stationary on the overpass. Furthermore, he violated a duty derived from the statute which was imposed to prevent the risk of an accident due to an obstruction of a thruway, that is an area necessary for the safe and efficient movement of traffic.

Notwithstanding the foregoing, we must agree with the trial judge and have ourselves concluded, that the evidence supports and justifies a reasonable inference that the stopping and parking of the tractor-trailer in the right lane of traffic of a four lane highway did not impede the safe and efficient negotiation of the highway by others. We therefore conclude that the plaintiffs have failed to show that the risk created by the violation was a legal cause of the accident.

The record is clear with sufficient and adequate testimony to establish that the decedent was traveling greater than the legal speed limit and, in fact was traveling at an unreasonable rate of speed.

Olin Dart, who was qualified as an expert in the field of traffic engineering, highway safety and accident reconstruction, specifically indicated that the speed of the decedent’s motorcycle had to be no less than 55 miles an hour and probably at least 60 miles per hour. The speed limit at this location was 45 miles per hour.

To further support the position of the defendants, there is no doubt that the tractor-trailer was stopped at the crest of the overpass and there is no question that it was in plain view. On the afternoon of the accident, the weather was clear with sufficient daylight and there was a dry road surface with light traffic. Although the tractor-trailer was in plain view, the decedent took no action to avoid colliding into the rear of the trailer. In fact, the manner in which the decedent operated his vehicle could be characterized as failure to maintain proper control.

Accordingly, the trial court’s judgment in favor of the defendants was not clearly wrong. Therefore, the judgment of the trial court is affirmed for the above stated reasons.

AFFIRMED.


author: SCHOTT, Judge.

text:
    Shirley McNAMARA, Secretary of the Department of Revenue & Taxation, State of Louisiana v. FIRST COMMERCE CORPORATION.
    No. CA 0828.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 9, 1983.
    Rehearing Denied Jan. 25, 1984.
    Writ Denied March 16, 1984.

      Douglas F. Herbert, Riley F. Boudreaux, Jr., Dept, of Revenue & Taxation, Baton Rouge, for plaintiff-appellee.
    Thomas C. Keller, Robert W. Nuzum, Jones, Walker, Waechter, Poitevent, Carr-ere & Denegre, New Orleans, for defendant-appellant.
    Before SCHOTT, BARRY and LOBRA-NO, JJ.
   SCHOTT, Judge.

This is a dispute over the proper method of computing corporation franchise tax due by a holding corporation owning a subsidiary bank as defined in LSA R.S. 47:602 B. The State through its Secretary of Revenue and Taxation rejected the method of computation adopted by First Commerce Corporation (FCC) and the trial court approved the state’s position. From that judgment FCC has appealed. The issue is whether FCC properly included short-term liabilities in borrowed capital in computing the deduction allowed by R.S. 47:602 B from the taxable base provided by R.S. 47:602 A.

The first step in the computation of the franchise tax is governed by R.S. 47:602 A which provides as follows:

“Every corporation taxed under this chapter shall determine the amount of its issued and outstanding capital stock, surplus, undivided profits and borrowed capital as the basis for computing the franchise tax levied under this chapter and determining the extent of the use of its franchise in this state.”

Since FCC is a holding corporation it was entitled to take from its tax base arrived at in Step 1 the deduction provided for by R.S. 47:602 B as follows:

“Any corporation having as a subsidiary a banking corporation as defined below shall be entitled to deduct from its capital stock, surplus, undivided profits and borrowed capital, as defined in this chapter, its investments in and advances to such subsidiary banking corporation to the extent that such investments and advances exceed the difference between the total assets and the capital stock, surplus, undivided profits and borrowed capital of the holding corporation .. ”

Both sides agree that short term liabilities are properly excluded from “borrowed capital” for the purpose of computing the franchise tax base under R.S. 47:602 A based upon the following definition of borrowed capital provided by R.S. 47:603:

“As used in this Chapter, ‘borrowed capital’ means all indebtedness of a corporation, subject to the provisions of this Chapter, maturing more than one year from the date incurred, or which is not paid within one year from the date incurred regardless of maturity date .... ”

However, FCC contends that the same short term liabilities are not to be excluded from “borrowed capital” as used in R.S. 47:602 B, while the state’s position is that they should be excluded.

By way of explanation, R.S. 47:602 B provides for a deduction from the franchise tax base of a holding corporation of the amount of its investments and advances to its subsidiary banking corporation but only to the extent that these exceed the difference between the holding corporation’s total assets on the one hand and the capital stock, surplus, undivided profits, and borrowed capital on the other hand. Thus, the greater the figure for borrowed capital, the less will be the difference between total assets and the capital components of the holding corporation and the greater will be its deduction from the franchise tax base. As a result, the inclusion of short term liabilities in 602 B’s borrowed capital will reduce the holding corporation’s franchise tax liability.

We cannot reconcile FCC’s position with the plain words of R.S. 47:603 which specify that “[a]s used in this Chapter ‘borrowed capital’ means” long term obligations. The “this chapter” refers to Chapter 5 of Sub-Title II of Title 47 of the revised statutes. The definition applies to Section 602 B just as it does to Section 602 A. Any other conclusion would require a strained interpretation of R.S. 47:603.

However, FCC argues that its interpretation is supported by the wording of 602 B in that it provides for the deduction from its capital components including “borrowed capital, as defined in this chapter ” but in repeating the words “borrowed capital” among the capital components to be subtracted from total assets the statute does not repeat the qualifying words “as defined in this chapter.” Thus, FCC contends that the legislature intended to place a different meaning on “borrowed capital” the second time it is referred to in 602 B.

We are not persuaded by this argument. In the first place, it does not explain away the specific definition provided by the legislature in Section 603 for “borrowed capital” as discussed above to be applied throughout this chapter dealing with franchise tax. Secondly, it presupposes that the words “as defined in this chapter” modify only “borrowed capital” and not all of the capital components such as capital stock, the computation of which is set forth in Section 604, and surplus and undivided profits which are treated in Section 605. We are satisfied that the legislature could have repeated “as defined in this chapter” the second time but it was unnecessary and would have been redundant to do so. To agree with FCC on this point would require a strained implication from the legislature’s decision to avoid redundancy through unnecessary repetition. Thirdly, we have concluded that FCC’s interpretation would lead to an inconsistency which the legislature did not intend.

Franchise tax is in the nature of an annual license tax imposed on corporations based on capital structure for the tax year. Only borrowed capital generally committed to the corporation for at least a year is included for the purpose of computing franchise tax under Section 602 A and 603. Thus, capital which is only available by way of short term obligations is excluded in computing the franchise tax.

The practical effect of excluding short term obligations from the difference with the corporation’s total assets is to decrease the deduction, but the same rationale applies here as did to the computation of the tax base. Only relatively long term capital is taxed for franchise tax purposes and only relatively long term capital is included to enhance the deduction for investments and advances by the holding corporation to its subsidiary banking corporation. FCC’s approach would, in effect, result in a double deduction which was not the intent of the legislature.

In deciding against FCC the trial court correctly observed that statutes affording special deductions or exemptions must be strictly construed. Ethyl Corp. v. Collector of Revenue, 351 So.2d 1290 (La.App. 1st Cir.1977) writ refused, 353 So.2d 1035 (1978). We have concluded that FCC’s position could be supported only by a strained construction of R.S. 47:602 B.

Accordingly, the judgment appealed from is affirmed.

AFFIRMED.


author: WARD, Judge.

text:
    STATE of Louisiana v. Robert BOYD.
    No. KA-1030.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 9, 1983.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., New Orleans, Harry F. Connick, Dist. Atty., Beryl M. McSmith, Asst. Dist. Atty., New Orleans, for plaintiff-appellee, The State of Louisiana.
    Dwight Doskey, New Orleans, for defendant-appellant, Robert Boyd.
    Before WARD, GULOTTA and KLEES, JJ.
   WARD, Judge.

Robert Boyd was charged by Bill of Information with violating R.S. 14:42.1 by committing forcible rape of an eighteen year old female. He waived his right to trial by jury, and the Trial Judge found him guilty as charged. Boyd was sentenced to serve two years at hard labor. On appeal, Boyd requests this Court to review the record for errors patent. Finding no reversible errors patent on the record, we affirm the judgment of the Trial Court.

The record reveals error, but not reversible error. Code of Criminal Procedure Article 873 requires that the imposition of the sentence be delayed until at least twenty-four hours after the denial of a motion for a new trial. The record shows that Boyd was sentenced immediately after the denial of his motion for a new trial. Although it was error to sentence Boyd at that time, in State v. White, 404 So.2d 1202 (La.1981), the Louisiana Supreme Court held that an error in procedure which does not affect the fundamental fairness of the process does not necessarily require reversal and remand unless prejudice is shown. See also State v. Bogdan, 426 So.2d 158 (La.1983). In the instant case, there is no showing that Boyd was prejudiced by this procedural error.

When a defendant requests this Court to review the record for errors patent, we also review the record for sufficiency of evidence. See State v. Raymo, 419 So.2d 858 (La.1982). The standard of review of the sufficiency of evidence is found in the United States Supreme Court decision of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The appellate court is to review “the evidence in the light most favorable to the prosecution” to determine whether “any rational trier of fact could have found the essential elements of any crime beyond a reasonable doubt.” 443 U.S. at 319, 99 S.Ct. at 2789, 61 L.Ed.2d at 573 (Emphasis in the original); State v. West, 408 So.2d 1302 (La.1982); State v. Fuller, 414 So.2d 306 (La.1982).

In order to sustain a conviction of forcible rape, the prosecution must prove that there was sexual intercourse without the lawful consent of the victim because the victim was prevented from resisting by force or threats of physical violence under circumstances where the victim reasonably believed that such resistence would not prevent the rape. R.S. 14:42.1.

At the beginning of the trial, counsel for defendant stipulated that Boyd had intercourse with the alleged victim on the date in question. Thus, the prosecution had only to prove there was an absence of lawful consent because force or threats of physical violence prevented the victim from resisting.

The alleged victim testified that she did not willingly consent to the act and that she believed it would have been useless to resist because she had been threatened with a wine bottle. According to her testimony, she had never dated Boyd but was an acquaintance of his prior to the alleged rape. She testified that on the date in question, she got out of school early and was shooting pool in a game room while waiting for a bus. Boyd approached her and told her that he wanted to talk to her about something. She and Boyd left the game room together and walked toward Boyd’s residence. Upon arriving at his residence, Boyd invited her upstairs. Once inside, Boyd allegedly asked her to be his girlfriend and she refused. She testified that he then, began kissing her on the neck, but when she objected to his advances, he began punching her, then he grabbed her around the neck and pulled her through the house. He then reportedly threatened her with a wine bottle and, upon realizing that she could not get away, she consented to intercourse. She testified that afterwards, the defendant let her go and instructed her not to say anything. She also stated that two people whom she believed to be Boyd’s brothers were in the house during the rape and were “bamming” on the locked bedroom door during the incident. After the rape, the two men entered the room briefly, asked her why she was trembling, and then went into the kitchen. She followed them into the kitchen and was given some milk and cookies. When she left the house, she went straight to the police station. She testified that she was checked by a doctor at the police station who gave her some medication to take for a swollen neck. On cross-examination, she explained that she did not ask the people she believed to be Boyd’s brothers for help because she feared that they would try to help or protect Boyd. She stated that she went into the kitchen and had cookies and milk only to gain time. The alleged victim was the State’s only witness.

The defendant’s brother, Donald Tanks, testified on behalf of the defense. He stated that he was at the house with a friend, Shelton Reynolds, during the time of the alleged rape. Tanks testified that the bedroom door had not been locked and that he passed through the bedroom on his way to the kitchen to get some cookies and milk. As he passed back through the bedroom on his way to the living room, the alleged victim, who was fully clothed at the time, asked him for some cookies so he gave her the cookies and milk and went back to the kitchen for more for himself. He again passed through the bedroom in returning to the living room. He testified that each time he observed Boyd and the State’s witness they were fully clothed, calm, and there was no indication that a struggle had taken place. After passing through the bedroom to get his cookies and milk, Tanks returned to the living room, and she came into the living room after about five minutes, got a cigarette from his friend, and returned to the back of the house for approximately fifteen minutes. He stated that she then returned with Boyd to the living room and Boyd showed her to the front door. According to Tanks, she did not appear upset when leaving, her hair was neat, and her clothing was not in a state of disarray.

Shelton Reynolds, the friend of defendant’s brother, gave an account that was consistent with that given by Tank’s with the exception that he stated that the alleged victim did not go into the back after receiving a cigarette from them, but that she smoked the cigarette in their company and left.

A neighbor who resided in the same building as Boyd testified that he was sitting on his front porch throughout the afternoon in question. He stated that he saw Boyd and the alleged victim enter the apartment together and that he later saw her exit alone. She stopped to ask him the time, stood there as if deciding which way to go, and then left. The neighbor testified that she appeared calm during their conversation and that she did not appear to have been injured. According to the neighbor, it is easy to hear from apartment to apartment but he did not hear any “bamming” or fighting. He estimated that the State’s witness had stayed in the apartment for approximately one and one-half hours. Another witness for the defense owned a business located under Boyd’s apartment and also denied hearing any disturbance at the time of the incident.

Boyd testified that the alleged victim invited him to play pool after school. After playing pool about half an hour, they walked to his house which was about five blocks from the pool hall and he invited her in. Once inside, Boyd got some milk and turned on the stereo. According to Boyd, she suggested that they go to his room and while they were in his bedroom, she made advances toward him. They had intercourse and she then asked him to have oral sex. When he refused she got dressed. His brother went through the bedroom to the kitchen and gave her cookies and milk when she asked. Boyd testified that she continued to try to coerce him into oral sex. She got a cigarette and returned to help him take out the back- braids in his hair. He then walked her to the door. He stated that she wanted him to catch the bus home with her to meet her mother. Boyd categorically denied hitting or threatening the alleged victim.

Although there was much contradictory testimony, the Trial Judge stated that he believed the State’s witness who testified that she did not willingly consent to intercourse with Boyd and that she believed it would-have been useless to resist. Viewing all of the evidence in the light most favorable to the prosecution, we conclude that a rational trier of fact could have found the essential elements of forcible rape were proved beyond a reasonable doubt. See Jackson v. Virginia, supra. Accordingly, we affirm.

AFFIRMED.

      . R.S. 14:42.1 provides: “Forcible rape is a rape committed where the anal or vaginal sexual intercourse is deemed to be without the lawful consent of the victim because the victim is prevented from resisting the act by force or threats of physical violence under circumstances where the victim reasonably believes that such resistance would not prevent the rape.
      Whoever commits the crime of forcible rape shall be imprisoned at hard labor for not less than two nor more than forty years. At least two years of the sentence imposed shall be without benefit of probation, parole, or suspension of sentence.”


author: REMY CHIASSON, Judge Pro Tem. WARD, Judge,

text:
    Mary Page Moran, wife of Martin B. FLAMM v. Martin B. FLAMM.
    No. CA 0651.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 9, 1983.
    Rehearing Denied Jan. 25, 1984.
    Writ Denied March 16, 1984.

      Robert J. Fineran, New Orleans, for plaintiff-appellee.
    Robert C. Lowe and Terence L. Hauver, Sessions, Fishman, Rosenson, Boisfontaine & Nathan, New Orleans, for defendant-appellant.
    Before BARRY and WARD, JJ., and REMY CHIASSON, J. Pro Tem.
   REMY CHIASSON, Judge Pro Tem.

Martin B. Flamm, husband-appellant, appeals the judgment of the district court granting unto the wife, Mary Page Moran, a divorce and finding her “to be free from fault”. No alimony, child support, custody, or other collateral issues were included in the judgment presently before us. From that judgment, which we affirm, the husband appeals.

On November 9, 1978, the wife filed a petition for separation on the grounds of mental cruelty. The husband answered the petition and reconvened for a separation in his favor on the grounds of cruel treatment. The wife then amended her petition to allege further grounds for the separation and finally supplemented her petition to seek a divorce on the grounds of living separate and apart for more than one (1) year under La.R.S. 9:301. The answer of the husband to the supplemental petition was a simple general denial. After a hearing, judgment was rendered by the trial court on August 2, 1982.

On appeal, the husband argues the trial judge erred in ruling directly on the divorce action, alleging that the June 17th hearing should have been a hearing solely on the petitions for separation.

In Jordan v. Jordan, 408 So.2d 952, 955 (App. 2d, 1981) our brethren on the Second Circuit found a demand for divorce took precedence over the initial suit for separation. In Jordan, the wife filed initially for a separation on the grounds of abandonment. The husband then reconvened seeking a divorce under La.R.S. 9:301, living separate and apart for one year. The court found that the trial judge acted properly in pretermitting the separation action.

Appellant argues that the judge’s action in pretermitting the separation action constitutes an unconstitutional deprivation of property on the theory that if a judgment of separation had been granted, the division of community property would be retroactive to November 9, 1978, whereas upon only a divorce judgment, the community terminates as of the date of the filing of the supplemental petition for divorce, January 7, 1982.

The judgment presently before this court deals only with the grant of divorce and the question of fault. The judgment does not contain any awards of alimony or child support, grant custody or award amounts pursuant to a partition of community property. Defendant’s argument would be more properly addressed when the issue of community property is before this court. As the issue of the date of termination of the community property is not now properly before this court, we will not address this issue any further.

In the instant case both parties admitted to all elements of an R.S. 9:301 divorce in their testimony. Under Brady v. Brady, 388 So.2d 57 (App. 1st, 1980), the trial judge was clearly required to grant an R.S. 9:301 divorce to the sole party who requested it, in this case the wife.

Because the issue of alimony was present, the trial court correctly held a hearing upon the “freedom of fault” of the wife in the separation. Turning to the substantive assessment of the trial court’s fault determination, the trial judge found that the husband was involved in a consistent and calculated campaign to make his wife believe she was of unsound mind. On her part, she was diagnosed an acute paranoid schizophrenic in 1976 and was treated at Coliseum House where she voluntarily committed herself and from which she was later released. More specifically, the trial judge rendered the following oral reasons for judgment:

“The court is' very much impressed with the educational background of Dr. Flamm, especially with his total record and the fact that he has been going to law school and, as I understand, is a senior in law school, but is not at all impressed with the testimony. It seems to be calculated and cruel.
“The Court is more impressed with the testimony of the wife and the progress on the wife in what the wife has testified to. The fact that the husband could go to the Coliseum House when the wife is under psychiatric treatment and tell the wife about an affair with the sister that might have been going on at the house seems to me to not only go beyond what medical people would understand, but certainly beyond what any layman would understand to be the proper thing to do.
“The Court believes that because of the activities of Dr. Flamm and the fact that he seems to relish going into all these kinds of facts, especially as to the condition of his wife and what she has, the Court believes he has contributed considerably to the condition that the wife is presently in or was in certainly at the time of the separation.
“Insofar as the witness for Dr. Flamm, she seemed to be well rehearsed insofar as what was being testified to. It was the testimony in effect of both parties to say they had an agreement he would move out in August. The Court believes the testimony of the wife that she thought they would come back at a later time and would reconcile after some kind of counseling for both parties.
“Dr. Flamm testified that Dr. Morris, one of his co-workers, was involved in drugs. He, Dr. Flamm, testified against him, and yet, Dr. Flamm himself admits to using drugs. The Court believes that the use of these drugs has caused a change, if there ever was a change, in the personality of Dr. Flamm.
“Therefore, the Court finds the fault is of Dr. Flamm, and the wife is without fault.”

On appeal, the standard of review to be applied by this court is whether the trial judge is manifestly erroneous in his factual determinations. Arceneaux v. Domingue, 365 So.2d 1330 (La., 1979); Canter v. Koehring Co., 283 So.2d 716 (La., 1973). Manifest error means “clearly wrong”. Areeneaux, supra, 1333. In the instant appeal, the trial judge’s factual determinations are based upon his observation of the witnesses and of Dr. Flamm’s demeanor at trial and his observations are clearly reflected in his oral reasons for judgment. Based solely on the “cold, unfeeling record”, this court cannot conclude that the trial judge was clearly wrong in his factual assessments or that he abused his discretion in his evaluations of the credibility of the witnesses. Burns v. Fernandez, 401 So.2d 1033 (La.App. 4th Cir., 1981). We therefore hold the trial judge was correct in finding the wife free from fault.

Defendant-appellant argues that the trial judge was unduly impressed with Dr. Flamm’s admission to his wife of his affair with her sister while his wife was in psychiatric confinement. We think not. We find that the trial judge’s comment was merely illustrative of the many events indicating a cruel and calculated campaign by Dr. Flamm to make his wife believe she was of unsound mind.

For these reasons the judgment of the district court is affirmed at appellant’s costs.

AFFIRMED.

WARD, J., concurring with reasons.

WARD, Judge,

concurring with reasons.

Civil Code Article 159 provides that “... the judgment of divorce carries with it the dissolution of the community, which dissolution is retroactive to the date on which the original petition in the action was filed_” Thus, the effect of the judgment on appeal is a dissolution of the community retroactive to the date of the filing of the divorce petition, March 20, 1981. Therefore, I believe the issue raised by the husband, whether pretermitting the separation action constitutes an unconstitutional deprivation of property, is properly before this Court.

      . In the instant appeal, the record before this court was designated on appeal so that the com-píete record is not before this court.


author: KLEES, Judge.

text:
    Geraldine NEWMAN v. Henry T. BURKS, ABC Insurance Company, Melvin Jackson, Dairyland Insurance Company, Leola Gaudin and Melvin Gaudin, XYZ Insurance Company.
    No. CA-0832.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 12, 1983.

      Joel P. Loeffelholz, New Orleans, for plaintiff-appellant.
    Bernard, Cassisa, Babst & Saporito, A Professional Law Corp. by Mickey S. deLa-up, Metairie, for defendants-appellees.
    Before KLEES, GULOTTA and WARD, JJ.
   KLEES, Judge.

This is an action for damages brought by Geraldine Newman, a passenger in an automobile driven by Melvin Jackson, for injuries alleged to have been sustained as a result of an automobile accident.

One of the defendants in the suit, Dairy-land Insurance Company, brought a motion for summary judgment contending that it did not insure the Melvin Jackson involved in the accident or his automobile on the date of the accident. After a hearing, the trial court rendered judgment granting the motion filed by Dairyland, dismissing the suit as to that defendant.

Plaintiff appeals, contending that the trial court erred in rendering a summary judgment because a genuine issue of material fact exists. We agree with the trial court’s findings and affirm.

FACTS

Plaintiff, Geraldine Newman, alleges that on May 14, 1981, at approximately 12:10 a.m., she was a guest passenger in an automobile owned and driven by defendant, Melvin Jackson, which was traveling in a southerly direction on Causeway Boulevard in Jefferson Parish.

While approaching the top of an overpass, Melvin Jackson braked and/or slowed his vehicle to render assistance to another defendant who had lost control of a mo-ped he was riding and had fallen in the lane next to the defendant. The vehicle in which the plaintiff was a passenger was then struck from the rear by another vehicle being driven by a third defendant. The collision caused severe physical damage to the plaintiff including a broken neck and spinal column injuries.

Through an amended answer, Dairyland contends that it insured a Melvin Jackson, but not the Melvin Jackson that was involved in the accident. Counsel provided by Dairyland later moved to withdraw as counsel of record based on the mistaken identity of Melvin Jackson, Jr. (defendant) as Dairyland’s insured, rather than Melvin Jackson, Sr., who is actually insured by Dairyland.

Defendant Dairyland then sought a motion for summary judgment based on the assertion that it had not been the insurer of the defendant Melvin Jackson, Jr. or anyone else involved in the automobile accident in which plaintiff, Geraldine Newman, was injured. Defendant Melvin Jackson, Jr. did not oppose the motion for summary judgment, however, plaintiff Newman did offer opposition. Finding that the evidence in the record supported the motion, the trial judge granted the motion for summary judgment.

The facts as they are presented in the pleadings, depositions, answers to interrogatories admissions on file, and affidavits demonstrate that the vehicle involved in the May 14th, 1981 accident in which the plaintiff was injured was a 1972 Buick, two door automobile, La. Lie. 126A299, with VIN # 4239T228283. According to the police report, the driver of that vehicle at the time of the accident was Melvin Jackson, Jr., LA. Drivers License # 4798651, born 10-08-61, and residing at 3505 Desire Pkwy., Apt. D, NOLA. Dairyland provided affidavits from its Branch Manager in Baton Rouge, who declared that, of his own personal knowledge, Dairyland did not insure Melvin Jackson, Jr. on the date of the accident or at any other time for a 1972 Buick, VIN 4239T228283, but that Dairyland did issue a policy to Melvin Jackson, Sr., LA. Drivers License No. 2326353 for a 1972 Buick Auto, VIN 4V3772H483628.

Plaintiff argues that Dairyland made a payment to defendant Melvin Jackson, Jr. under the uninsured motorist provision of the alleged insurance policy. Dairyland admitted that it did make such a payment, but submits that this payment was made in error and that Dairyland has instituted suit to recover the monies paid. Plaintiff further argues that because payment was made, even though Dairyland says it was made “in error” there is presented a disputed material fact.

The facts as established in the record indicate that Melvin Jackson, Jr. was involved in the May 14, 1981 accident as the driver of the car in which Geraldine Newman was a passenger. This fact can be adduced from the police report which indicated Mr. Jackson’s name, address, date of birth and license number as the operator of the vehicle. Furthermore, it was established that the vehicle involved in the accident was a 1972 Buick, two-door, with La. license plate # 126A299. A registration certificate was attached to the report which indicated that Melvin Jackson, Jr. was the owner of a 1972 Buick Century with a La. License Plate # 126A299.

The defendant has provided an affidavit to establish that it did not insure Melvin Jackson, Jr. on the date of the accident or at any other time for his 1972 Buick.

It should be noted that defendant, Melvin Jackson, Jr., admitted through deposition that he was the driver at the time of the accident, that Geraldine Newman was a passenger in his car, and that he did not have an insurance policy on the day of the accident with defendant Dairyland or with any other company.

In this case mover, Dairyland Insurance Company, has established that it was not the insurer of Melvin Jackson, Jr., the owner and driver of the automobile involved in the accident. No counter affidavits or receivable evidence tending to disprove that fact were presented at the hearing so we must conclude that there is no genuine issue of material fact.

La.Code of Civil Procedure, Article 967 reads in pertinent part:

“When a motion for summary judgment is made and supported as provided above, an adverse party may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided above, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be rendered against him....”

In Duplechain v. Houston Fire & Casualty Insurance Company, 155 So.2d 459 (La.App. 3rd Cir.1963), the court in facing a similar situation said at p. 464:

“If the movant at the trial produces convincing proof of the facts upon which the motion is based, and no counter affidavits or other receivable evidence are offered by the opposing party to contradict that proof, then we think a conclusion may be justified that there is no genuine issue as to the facts so proved, even though allegations to the contrary might be contained in the pleadings.”

Clearly, the trial court correctly granted the motion for summary judgment based on the showing that there is no genuine issue as to material fact as evidenced by the pleadings, depositions, answers to interrogatories, admissions on file, as well as affidavits and other information entered into the record.

For the reasons herein assigned, the judgment appealed from is affirmed. All costs of this appeal are assessed to plaintiff-appellant.

AFFIRMED.


author: CUTRER, Judge.

text:
    Wiley Joseph HAYES, Plaintiff-Appellee, v. The HAMMETT COMPANY, INC. OF FLORIDA, et al., Defendants-Appellants.
    No. 83-261.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 14, 1983.
    Jeansonne, Briney, Balfour & Goude-locke, Patrick J. Briney, Lafayette, for defendants-appellants.
    Domengeaux & Wright, Richard C. Broussard, Lafayette, for plaintiff-appellee.
    Before CUTRER, DOUCET and LA-BORDE, JJ.
   CUTRER, Judge.

This suit for workmen’s compensation benefits was instituted by Wiley Joseph Hayes against his employer, The Hammett Company, Inc., and its workmen’s compensation insurance carrier, the Home Insurance Company. The trial court held that the plaintiff was totally disabled and enti-tied to workmen’s compensation benefits plus 12% penalty on the amount of compensation withheld and attorney’s fees. From this decision defendants appeal. We affirm.

The defendants’ assignments of error are as follow:

(1) The trial court erred in finding that the plaintiff’s alleged neck injury was caused by or in any way connected with the accident and/or accidents in question;
(2) The trial court erred in finding that the defendants’ failure to resume compensation benefit payments was arbitrary and capricious; and
(3) The trial court erred in casting defendants in judgment for 12% penalties in the amount of $1,564.80.

The trial judge handed down well written reasons for judgment which correctly dispose of the first two issues set forth above. We have examined the record and agree with the trial judge’s reasons which read as follow:

“This suit for workmen’s compensation benefits presents two issues: (1) whether or not plaintiff sustained injuries as a result of a work related accident, and, if so, (2) whether plaintiff is entitled to attorneys fees and penalties on the amount of the claim due.
“In May, 1981, plaintiff was employed by Hammett as a fueler. He claims to have suffered two separate accidents causing separate injuries to his back. The first accident allegedly took place on May 2, 1981 when plaintiff and a co-worker, Mr. Roberts, were lifting a large tool box out of a truck. Plaintiff claims to have injured his ‘lower back’ as a result of this accident. Plaintiff testified that although his lower back was giving him some pain, he returned to work on Monday, May j, 1981. On this date plaintiff allegedly slipped from the top of a truck and fell into a sitting position on the ground, injuring his upper back/neck area. No witnesses were present at the time of this accident. Plaintiff began seeing doctors on May 5, 1981 and has not returned to his regular employment. The parties stipulated that plaintiff was within the course and scope of his employment at the time of the alleged accident.
“Plaintiff testified that since the accidents he has attempted to work on a shrimp boat and has also assisted his wife in a crawfishing operation. Both plaintiff and the skipper of the shrimp boat stated that plaintiff could not perform the work due to lower back pain. Plaintiff and his wife testified that although he tried to do some of the lifting involved in the crawfishing operation, he was unable to do so due to pain in his upper back/neck area.
“Plaintiff began seeing Dr. Kenneth Foumet, his family physician, on May 5, 1981. Dr. Foumet stated that plaintiff complained of pain in both the upper and lower back areas, and upon examination found muscle stiffness and tenderness. Dr. Foumet stated that plaintiff had seen him concerning prostate trouble and associated low back pain, however, went on to state that prostate problems do not cause upper back pain. Dr. Foumet stated that the fall from the truck could injure the upper as well as lower spine, but prescribed only conservative treatment.
“Dissatisifed with Dr. Foumet’s treatment, plaintiff was referred by the Hammett’s insurer to an orthopaedic surgeon, Dr. Fred Webre. Dr. Webre first saw plaintiff on June 15, 1981 and felt that plaintiff had only strained his back. Conservative treatment was prescribed. On July 2, 1981 Dr. Webre saw plaintiff again and felt he could return to work. On July 7, 1981 compensation benefits were discontinued on the basis of Dr. Webre’s report. On July 15, 1981 plaintiff returned to Dr. Webre and told him that he had attempted some yardwork around his house but could not continue due to pain. Dr. Webre then instructed plaintiff not to work. However, compensation benefit payments were not resumed.
“Plaintiff saw Dr. Stuart I. Phillips, an orthopaedic surgeon, on December 7, 1981. Dr. Phillips testified that plaintiff complained of neck pain radiating into the left arm and fingers of the left hand. On the basis of x-rays and physical examination Dr. Phillips diagnosed a ruptured disc with a pinched nerve causing radiating pain. Dr. Phillips saw plaintiff again in March of 1982, and found his condition unchanged. Dr. Phillips felt further testing would be necessary before recommending surgery.
“Plaintiff saw Dr. James C. McDaniel, an orthopaedic surgeon, on June 2, 1982 at the request of counsel for the defendants. Dr. McDaniel performed a physical examination of plaintiff and took x-rays. He testified that he found no objective evidence of a ruptured disc.
“Plaintiff saw Dr. Stephen I. Gold-ware, a neurosurgeon, on June 15, 1982. After a physical examination and review of x-rays, Dr. Goldware felt that plaintiffs pain was being caused by a pinched nerve in his neck, which could be due to ruptured discs. Dr. Goldware stated that a fall as described by plaintiff could cause a disc injury in the cervical spine. He further stated that plaintiff could not be expected to return to heavy manual labor until his neck problem was corrected. Dr. Gold-ware prescribed traction, and if this does not work would prescribe further testing and possible surgery based on the results of these tests.
“The preponderance of the evidence indicates that plaintiff has suffered injuries to his back, and that he still suffers pain due to the injury to his upper back/neck area. It also confirms that a fall such as that described by plaintiff could cause this injury. Regarding the question of the accidents themselves, Olds v. Ashley, [250 La. 935] 200 S 2d 1 (1967) held that evidence of witnesses, which stands uncon-tradicted, must be accepted as true in the absence of circumstances casting suspicion on the reliability of this testimony. The plaintiffs testimony was uncontradicted and reliable. In view of the stipulation that plaintiff was within the course and scope of his employment at the time of his accident, and the other facts listed above, this court finds that plaintiff suffered a disabling injury while within the course and scope of his employment with The Hammett Co., Inc. of Florida.
“This court further finds that plaintiff is totally disabled under the ‘odd-lot’ doctrine as adopted in Oster v. Wet-zel Printing, Inc., 390 So.2d 1318 (La. 1980). This determination is made in view of these facts: (1) plaintiff has held only jobs involving manual labor; (2) his injury prevents his return to manual labor; and (3) he attended school only through the seventh grade, resulting in very limited reading ability and almost no ability to write. These facts indicate plaintiff ‘cannot perform the substantial and material parts of some gainful work of occupation with reasonable continuity. ’ LSA-R.S. 23:1221(2).
“The only remaining questions are whether the employer was arbitrary in discontinuing compensation benefits or in refusing to resume payment of these benefits.
“The evidence shows that compensation benefits were discontinued on July 7, 1981 pursuant to Dr. Webre’s report to the effect that plaintiff could return to work. Laborde v. Roy 0. Martin Lumber Co., Inc., 316 So2d jjO (La.App. 3rd Cir.1975), held that where compensation benefits were discontinued only after the treting physician stated that the employee was fit to return to work, the employer’s action was not arbitrary. Therefore the discontinuance of benefits in this case was not arbitrary.
“However, the failure to resume compensation benefit payments was arbitrary. Alexander v. Department of Culture, Etc., 410 So2d 1286 (La.App. 3rd Cir., 1982), held that ‘where subsequent to an initial optimistic report, an employer receives information indisputably showing a claimant to be disabled, the employer and/or insurer cannot rely upon the early report and solely on its basis avoid penalty and attorneys fees for arbitrary nonpayment of compensation benefits indisputably due the disabled claimant. ’ In the present case, Dr. Webre’s report following the July 15, 1981 appointment with plaintiff clearly indicated that plaintiff should not attempt to work at that time. The parties stipulated to the demand correspondence. Alexander, supra, held also that the employer and/or insurer should have investigated the claim by such means as requesting that the employee submit to a medical examination. In Alexander, supra, as in this case, the employer and insurer did not investigate. Defendants had not disputed plaintiffs right to workmen’s compensation benefits prior to Dr. Webre’s report, as the facts show that compensation benefits were paid through July 7, 1981. Again, the discontinuance based on Dr. Webre’s first report was not arbitrary. However, where defendants neither reinstated benefits after Dr. Webre’s second report nor investigated plaintiffs claim timely as required by Alexander, supra, and LSA-R.S. 23:1201.2, this court finds arbitrary and capricious failure to pay workmen’s compensation benefits. For these reasons plaintiff is entitled to penalties in the sum of 12% of the amount of workmen’s compensation withheld, and attorneys fees.
“In summary, this court finds that plaintiff is totally disabled and is entitled to workmen’s compensation benefits, plus 12% penalty on the amount of compensation withheld, plus attorneys fees. ”

By assignment of error number 3, the defendants contend that the 12% penalty should not be imposed upon the compensation payments which accrued from the time the case was taken under advisement until oral reasons for judgment were handed down. The trial was held on June 9, 1982, and it was held open for medical depositions which were submitted by June 23, 1982. The case was taken under advisement and the written reasons for judgment were handed down on January 3, 1983. The judgment was prepared and approved by counsel for both parties. The judgment dated February 1, 1983, set forth compensation being due through January 18, 1983, in the amount of $13,040.00 and 12% penalties in the amount of $1,564.80 (12% of $13,040,00). Defendants contend that they should not be made to pay penalties for the payments accruing during the time the case was under advisement. The defendants cite no authority for their position, nor do we find any such authority.

The amount of compensation payments past due were not judicially established until the judgment of the trial court was rendered. In this judgment the past due payments were decreed to be $13,040.00 as of January 18, 1983. The 12% penalty was properly applied to this amount under the provisions of LSA-R.S. 23:1201.2. This assignment of error has no merit.

For these reasons the judgment of the trial court is affirmed. Defendants-appellants are to pay the costs of this appeal.

AFFIRMED.


text:
    Leah Maxine LACOUR, Administratrix, Plaintiff-Appellant, v. Joseph E. SANDERS, Defendant-Appellee.
    No. 83-282.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 14, 1983.
    Writ Denied March 16, 1984.

      William E. Skye, Alexandria, for plaintiff-appellant.
    Trimble, Randow, Percy, Wilson & Foote, H. Gregory Walker, Alexandria, for defendant-appellee.
    Before CUTRER, DOUCET and LA-BORDE, JJ.
   CUTRER, Judge.

This is a suit for partition by licitation of approximately thirty acres of land located near Woodworth, Rapides Parish, Louisiana. Leah Maxine Jett Lacour, in her capacity as administratrix of the succession of her mother, Mary Ellen Scott Jett, sued Joseph E. Sanders claiming a one-half interest in a tract of land Sanders purchased from Ms. Lacour’s father, Robert Jett, Jr. Sanders answered the suit pleading the affirmative defense of ten year acquisitive prescription. The trial judge rendered judgment recognizing Sanders as the owner of the disputed tract of land. Ms. Lac-our appeals. We affirm.

The trial judge has favored us with excellent reasons for judgment and we will take the liberty of quoting from his statement of the facts and his discussion of the issues.

“Robert Jett, Jr. and Mary Ellen Scott were married in Grant Parish on September 1, 1932 .... The property in dispute was acquired by Robert Jett, Jr. while married and living with Mary Ellen Scott by act of sale dated May 25, 1937 .... About the time of the deed, Robert Jett, Jr. and Mary Ellen Scott Jett moved on this property and farmed it with their children and Ellen children by her first marriage. In 1947 the Jett family moved about a mile away to a twenty-acre tract which Jett had purchased. The Jetts continued to farm the property, the subject of this lawsuit, until the death of Mary Ellen Scott on December 14, 1959 .... Joe Sanders, the purchaser and possessor, testified that three or four years before Ellen Scott Jett died no one lived on the property .... Joe Sanders, his family, and the Jett family were friends for many years in a small community. The families attended the same church. The Jett children and the Sanders children played together and went to school together. Joe Sanders and his wife knew Mary Ellen Scott Jett died on December 14, 1959. Both attended the wake.
“Shortly after the funeral, Robert Jett, Jr. married Willie Mae Williams. On July 9, 1960, Robert Jett, Jr. alone sold the property, subject of this lawsuit, to defendant, Joe Sanders.
“Shortly thereafter the Sanders family occupied a frame house, which they moved onto the property, and lived there until 1976, when they constructed on the property the brick veneer house in which they presently reside .... Mr. Sanders further testified that he executed two mineral leases on the property. He executed a ten-year lease in 1970 and a five-year lease in 1982 .... Mr. Sanders testified that from the date of purchase until the date of this trial he believed he was indeed the owner of the full 30.30 acres which he possessed as owner.
“To plaintiffs claim to be recognized as co-owners of an undivided one-half interest in the property, defendant has answered alleging ten years acquisitive prescription; estoppel, and ownership of his home. Defendant third partied his vendor, Robert Jett, Jr., who answered and third partied Ellen Scott’s forced heirs, which issues were deferred for later hearing.” (Reference to trial exhibits omitted.)

ISSUES

The determinative issue in this appeal is whether the trial judge’s ruling, that Sanders had proven ownership of the property by prescription, is correct. Ms. Lacour also raised questions concerning equitable es-toppel and the appropriateness of partition by licitation. Because of our resolution of the prescription issue it is not necessary that we discuss these other questions.

ACQUISITIVE PRESCRIPTION

Civil Code art. 3458, as it read at the time this suit was filed, defined acquisitive prescription as follows:

“The prescription by which the ownership of property is acquired, is a right by which a mere possessor acquires the ownership of a thing which he possesses by the continuance of his possession during the time fixed by law. ”

An immovable, such as the tract of land at issue in this case, can be acquired in full ownership, by the operation of acquisitive prescription, in ten years, if four criteria are met. These criteria are set out in Civil Code art. 3479. They are: (1) Good faith on the part of the possessor; (2) A title which shall be legal, and sufficient to transfer the property; (3) Possession during the time required by law; and (4) An object which may be acquired by prescription.

The trial judge, after enumerating the prerequisites of art. 3479, stated:

“This Court finds that Joe Sanders proved without contradiction that he exercised continuous and uninterrupted, peaceable, public, and unequivocal possession as owner for more than ten years and with a legal title sufficient to transfer the property. Melancon v. Wood, 357 So.2d 75 (4th Cir., 1978), [writ denied, 359 So.2d 201 (La.1978)], C.C. 3479, 3483, 3487, (C.C. 3475, 3476, 3483 as amended by Act No. 187 of 1982.)
“The final element to be determined for ten-year acquisitive prescription and the only element disputed by plaintiff is good faith on the part of Sanders.
“Civil Code Article 3451 provides: ‘The possessor in good faith is he who has just reason to believe himself the master of the thing which he possesses, although he may not be in fact; as happens to him who buys a thing which he supposes to belong to the person selling it to him, but which, in fact, belongs to another. ’
“Civil Code Article 3481 provides:
‘Good faith is always presumed in matters of prescription; and he who alleges bad faith in the possessor, must prove it. ’
“The Court in Melancon, supra, at page 77, held that to be in good faith, a possessor must have legitimately and reasonably believed that the person from whom he acquired title was the true owner of the property. ’
* * * 5⅜ Sfc ⅜
“Both Robert Jett, Jr. and Joe Sanders are uneducated ... men who lived in the rural community of Woodworth. Sanders was ignorant of Louisiana community property laws .... The property in dispute is located in the Ashton [Community], Furthermore, at the time of the sale Article 2404 of the Civil Code, the Head and Master rule, was. in effect whereby the husband could transfer full interest in the community by onerous title without the permission of his wife.
“Plaintiffs position is that defendant is in bad faith because he knew of the death of Ellen Scott Jett. Plaintiffs contention is based upon Juneau vs. Laborde [219 La. 921], 54 So.2d 325 (1951) and Thibodeaux v. Quebodeaux, 282 So.2d 845 (3rd Cir., 1973). These cases are inapposite. It is clear that in these cases the vendee had knowledge of title defects.
“In Juneau, the vendee was warned against buying the property and told that the title was not good. In Thibo-deaux, the vendee lived near the vendor. He was aware that the vendor acquired the property while married and sold it after the vendor’s wife died. Equally, in Thibodeaux, supra, at page 850, the vendee was aware of the Louisiana community property laws and knew that '... when a man and a woman are married and they acquire property half is for the man and half is for the woman. ’ [This emphasis ours.] The Courts in the Juneau and Thibodeaux cases found the vendee’s knowledge tantamount to an error in law which previously barred 10-year acquisitive prescription. This Court notes in passing that under the new law, Article 3481, neither error of law, nor error of fact defeats the right to acquire by ten-year acquisitive prescription.
“In this case, Sanders testified that several years prior to the sale, while Ellen Scott Jett was alive, he asked Robert Jett, Jr. to sell the property and Jett said no. Sanders testified he told Jett if he changed his mind to let him know. Sanders testified that in 1960, Jett came to him and said he wanted to sell.
“Joe Sanders’ wife, Ola Marie Sanders, testified that Jett stated all of the children were willing to sell .... In her deposition at page 7 she was asked:
Q. ‘You thought that Robert Jett, Jr. could sell all the property in spite of the fact that his wife had died?’
A. ‘Well, I didn’t think in those terms that way, but I thought after we had wanted to buy the property and he had come to us and say the children all had agreed and they wanted to sell the property and knowed we were looking for land, so, and after that, well, I ...’
Reading her entire deposition makes it clear that even Ola Marie thought Robert Jett could convey all of the property. Celestine Cole and Leah Maxine Jett LaCour, daughters of Robert Jett, Jr., testified that before the sale they told their father that they did not want to sell the property. It is clear that neither Jett nor his daughters conveyed this information to the Sanders. Additionally, after both Celestine and Leah received from their father $200.00 each as their portion of the proceeds from the sale, they still did not tell the Sanders of their opposition to the sale until this suit was filed twenty-two years later.
“Under Melancon v. Wood, 357 So.2d 75 (4th Cir., 1978) ... [Writ ref d, 359 So.2d 201 (La.1978)], legal bad faith of the seller is not a relevant determination as to the issue of good faith by the purchaser. Additionally, the knowledge of the seller’s lack of right or in terest in the property is not imputed to the buyer, and the buyer’s error in buying from the seller is an error of fact. The record is silent as to any information conveyed to Sanders which would place him on notice to inquire about his title. He remained a good faith possessor.
“A title examination would not reveal that Mary Ellen Scott Jett was deceased, thus the preparation of the act of sale by [the] attorneys [involved in the sale] would have been made in accordance with the facts set forth in the public records[ ]Sanders testified he did not study and read the documents and that the lawyers prepared the deed and kept everything straight.
“It is abundantly clear that defendant Joe Sanders was a good faith possessor of the entire 30.30 acres in dispute and entitled to acquire full ownership under the acquisitive prescription of ten years and this Court so holds.”

A careful review of the record before us and a thorough study of the jurisprudence of acquisitive prescription convinces us that the trial court’s determination was correct. We find no error in the trial judge’s actual findings or in his application of the law to those facts. The trial court judgment shall be affirmed.

For the reasons assigned, the judgment of the trial court is affirmed. Plaintiff-appellant, Leah Maxine Lacour, is assessed with the costs of this appeal.

AFFIRMED.

      . Generally, immovables are susceptible to prescription. In certain specified situations ownership of land cannot be acquired by prescription. For the most part these situations involve lands owned by the state. Though not specifically addressed by the trial judge or either parties’ counsel, it is clear from the record that the land in dispute is susceptible to acquisition by prescription.

        . We note this is true because Mary Ellen Scott Jett’s succession was not opened, and plaintiff was not appointed Administratrix until 1982, shortly prior to this suit.