text:
    Vanessa CONDALL v. AVONDALE SHIPYARDS, INC.
    No. CA 0723.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 28, 1983.

      Mr. Delbert G. Talley, Windhorst, Pasto-rek & Gaudry, Gretna, for defendant-appellant.
    James H. Minge, New Orleans, for plaintiff-appellee.
    Before SCHOTT, AUGUSTINE, and CI-ACCIO, JJ.
   SCHOTT, Judge.

In this Workers’ Compensation case there was a consent judgment declaring plaintiff temporarily totally disabled and awarding her benefits as provided for in LSA-R.S. 23:1221(3). In a separate judgment, which is the subject of this appeal by defendant, the trial judge awarded plaintiff $250 as a civil penalty and $500 for attorney fees because of defendant’s failure to furnish plaintiff with medical reports; $29.04 for unpaid medical benefits and $1000 for attorney fees as a penalty for its failure to pay medical benefits; and $5000 for attorney fees and 12% penalties on unpaid compensation for defendant’s failure to pay compensation benefits timely. Issues are whether plaintiff is entitled to penalties and attorney fees and whether the attorney fees are excessive.

Plaintiff was injured in January, 1981, and was treated by Dr. Charles Johnson. He performed surgery on her knee on October 23,1981, and on May 18,1982, he issued a slip certifying that she “may return to work.” Plaintiff returned to work on May 19, but defendant discharged her for “personal medical reasons.” Compensation benefits were paid through May 22, 1982 when they were terminated. On June 1 plaintiff employed counsel who immediately called upon defendant to furnish him with medical reports on plaintiff. Plaintiff was referred to Dr. Bernard Manale, and on June 16 her counsel sent defendant a copy of Manale’s report and bill with a request that defendant pay it. In July plaintiff’s counsel sent additional medical reports from Dr. Manale and repeated his request for copies of defendant’s reports and payment of the medical expenses incurred by plaintiff. He repeated these requests during July and August and on August 12 filed the instant suit. Defendant was served with the petition on August 19. On August 23 defendant sent plaintiff’s counsel a check for $1449.03 to cover workers’ compensation benefits for the period of June 8, 1982 to August 24, 1982, and on September 10 defendant sent plaintiff a check for medical expenses of $345 for Dr. Manale and $33.96 for prescription drugs. However, defendant never paid a $29.04 bill for prescription drugs and did not furnish plaintiff’s counsel with copies of the medical reports until the day of trial on November 10, 1982.

Plaintiff’s claim for penalties and attorney fees for defendant’s failure to furnish the medical reports is based on R.S. 23:1125 which requires an employer to furnish to its employee or his representative copies of medical reports and provides in pertinent part:

“Any employer who without just cause fails to furnish such report to an employee so requesting same within the thirty day period provided [by the statute] shall be liable to the employee for civil penalty in the amount of $250.00 plus a reasonable attorney’s fee for the collection of such penalty.”

The trial court’s conclusion that failure to furnish medical reports was without just cause is supported by the record which contains no explanation by defendant for its conduct. Plaintiff was clearly entitled to the civil penalty and nothing in the record suggests that the $500 awarded for the attorney fee was not “reasonable” considering the repeated requests by plaintiff’s counsel for the reports and the stubborn refusal of defendant to furnish them even after this suit was filed.

As to plaintiff’s entitlement to penalties and attorney fees for defendant’s failure to pay compensation benefits and the medical expenses, R.S. 23:1201.2 makes the employer liable when the failure to make payments or the discontinuation of payments is found to be arbitrary, capricious or without probable cause.

In his reasons for judgment the trial judge noted that plaintiff had reported for work on May 19 but defendant terminated her for medical reasons, thereby admitting its obligation to continue with compensation benefits. In effect, the trial court’s conclusion was based on the failure to pay benefits for the period beginning on May 23. In this court, defendant argues that it was entitled to rely on Dr. Johnson’s back-to-work slip of May 18, so that its discontinuation of benefits was justified. However, this argument ignores defendant’s overall conduct in the handling of plaintiff’s case until the suit was filed in August.

Perhaps by June 17 and surely by July 15 defendant had a copy of Dr. Ma-nale’s report of June 11 stating that both of plaintiff’s knees had been fitted with braces in the hope of improving her condition and that further surgery was a distinct possibility. Furthermore, Dr. Johnson reported to defendant on July 15 that plaintiff had a permanent partial physical impairment of 15% to her right lower extremity. Defendant’s workers’ compensation specialist admitted that she changed her mind about plaintiff’s entitlement to benefits at the end of June and yet defendant did not resume payments at this time. Only after being served with plaintiff’s petition did defendant pay the benefits for the period from June 8 to August 24, 1982. Thus, we need not labor over defendant’s conduct from May 23. The record is clear that a discontinuation of payments occurred, and at some point long before suit was filed payments should have been resumed. It is well established that if an employee has but a partial disability the employer is not justified in terminating all compensation and if compensation even for partial disability is arbitrarily withheld penalties and attorney fees may be assessed. Lucas v. Ins. Co. of North America, 342 So.2d 591 (La.1977). In the present case defendant gave no explanation for paying plaintiff nothing in the face of the medical information in its possession. The trial judge correctly concluded that its conduct was arbitrary, capricious, or without probable cause.

Likewise, the record supports the trial judge’s conclusion that defendant was arbitrary, capricious, or without probable cause in failing to pay the medical expenses of plaintiff. While in his reasons for judgment the trial judge seems to base the additional award of $1000 attorney fees because defendant never paid the $29.04, the record shows that defendant had received a barrage of requests for payment of Dr. Manale’s bills of $315 beginning in June, 1982, and yet it did not pay these bills until September 10, almost three weeks after being served with plaintiff’s petition. R.S. 23:1201.2 authorizes the imposition of attorney fees for failure to pay medical expenses. Bryant v. New Orleans Public Serv., Inc., 367 So.2d 100 (La.App. 4th Cir. 1979) writ den. 369 So.2d 457.

Having concluded that plaintiff is entitled to penalties and attorney fees, we turn to the question of whether the amounts of $5000 and $1000 awarded by the trial court are excessive. In his reasons for judgment the trial judge made the following findings and conclusions:

“On November 18, 1981, Defendant was advised in writing of Plaintiff’s orthro-scopic surgery (D-14). On February 24, 1982, Defendant was again advised in writing by Dr. Johnson that Plaintiff was totally disabled for at least six more months (D-8). (Emphasis added) Approximately three months later, on May 18, 1982, Plaintiff was issued an Unrestricted ‘Return to Work’ note (D-2). Following the physicians’ instructions, she reported for duty on May 19, 1982, and was callously and cruelly, summarily and wrongfully fired by the Defendant who claimed that she was unable to perform the duties of her employment because of the medical injuries which she received while working (P-1). The Defendant knew or should have known from the previous medical records in their possession that Plaintiff had not fully recovered as six months had not elapsed (D-8). Or if they accepted their physician’s note that she was capable of working, they should have given her an opportunity to perform her duties. Defendant Avondale intentionally elected to terminate Plaintiff’s employment, wages and workmen’s compensation benefits thereby depriving Plaintiff of any income or medical benefits.”

Defendant takes sharp issue with the trial judge’s characterization of its firing of plaintiff as “callously and cruelly, summarily and wrongfully.” To a certain extent defendant’s argument has merit. In the first place, Dr. Johnson’s February 24 report states that plaintiff was expected to be disabled “for approximately six months from the time of her surgery.” (Emphasis supplied). The surgery had taken place on October 23, 1981 so that there was nothing obviously inconsistent between Dr. Johnson’s February 24 report and his May 18 back-to-work slip. Thus, the trial judge’s conclusion that defendant should have known on May 18 “that plaintiff had not fully recovered as six months had not elapsed” is unwarranted.

Furthermore, the trial judge concluded that plaintiff was “callously and cruelly, summarily and wrongfully fired by defendant” on May 19 because plaintiff returned to work in compliance with the back to work slip, and, yet, she was not given a chance to try to work. The evidence to explain the circumstances of her discharge was sparse. It consists only of plaintiff’s testimony and the naked discharge slip. She testified that when she returned she was sent to the first aid station,

“.... and I seen Dr. Maybe, and he checked my knee over and I told him I was still having problems with the knee and before I could, they could put me back in the yard they took my file and sent me over to the personnel office — and I can’t remember the man’s name, but they told me I was to be terminated.”

On cross examination plaintiff further stated:

“.... He told me he wasn’t going to put me back in the yard, because of my knee. He said they were going to terminate me, and he wouldn’t want to go out back in the yard and hurt my knee anymore than what I already hurt it. So, he just terminated me.”

We are not necessarily persuaded by this evidence that plaintiff was callously, cruelly or wrongfully fired as was the trial judge. With plaintiff still having problems defendant acted properly in referring her to the first aid station and may have been quite prudent in deciding that she should not go back to work for her own well being. Of course, as the trial court found, defendant should have reinstated her on compensation, and its failure to do so subjects it to statutory penalties and attorney fees. But the evidence does not support the conclusion that defendant’s decision to terminate plaintiff was, in itself, sinister or cruel.

In determining the reasonableness of attorney fees the trial court has much discretion. Moreau v. Houston General Ins. Co., 386 So.2d 151 (La.App. 3rd Cir.1980); Fontenot v. Town of Kinder, 377 So.2d 554 (La.App. 3rd Cir.1979); Wactor v. Gurtler Hebert Const. Co., 343 So.2d 383 (La.App. 4th Cir.1977) writs den. 345 So.2d 59. In each of these cases an award of $5000 for attorney fees was not considered abusive of the trial court’s discretion. In the exercise of discretion in this case the trial court based the award of $6000 at least in part on the erroneous conclusion that defendant should have known that plaintiff was still totally disabled on May 18 (not yet six months after February 24) and the unsupported conclusion that plaintiff’s discharge was not done in good faith. While it may be argued that this necessarily supports some reduction in the award, we are not persuaded that these errors mandate a significant reduction when they are viewed in the totality of circumstances. We may agree that the award is high, but we are not convinced that it is beyond the range of discretion vested in the trial court.

Accordingly, the judgment is affirmed.

AFFIRMED.


source: Caselaw Access Project

author: SCHOTT, Judge.

license: Public Domain

text:
    Shirley B. WILSON v. Mrs. Frederick POU, Kemper Insurance Company, Aetna Insurance Company and Benjamin Holland.
    No. CA 0484.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 28, 1983.

      Robert J. Caluda, New Orleans, for plaintiff-appellant.
    R. Henry Sarpy, Jr., Jones, Walker, Wae-chter, Poitevent, Carrere & Denegre, New Orleans, for defendants-appellees.
    Before SCHOTT, AUGUSTINE and CI-ACCIO, JJ.
   SCHOTT, Judge.

This is a damage suit by plaintiff against the owner of her apartment, Mrs. Frederick Pou, Pou’s insurer, Kemper Insurance Company, and Pou’s building manager, Benjamin Holland. When plaintiff returned from a one month trip to California in July, 1979, she found that there was an accumulation of mildew in her apartment which she alleged caused extensive property damage and personal injury to her. The trial court awarded her a judgment of $1500. She has appealed, seeking an increase in the amount of the award, and defendants have answered the appeal contesting liability. The issues are whether the trial judge committed manifest error in his factual determinations as to liability and quantum and whether he abused his discretion in assessing damages.

Plaintiff had resided in this apartment since 1975 and had experienced some problems with mildew prior to her trip to California in June, 1979. Upon her return there was an extensive accumulation of mildew in the apartment. Before leaving on her trip she had set the thermostat of the air conditioning unit at 70 °. The trial court was convinced that some damage was done to plaintiff’s property due to the malfunctioning of the air conditioning and defendants would have us reverse this finding on the basis of manifest error. We are not persuaded to do so. Plaintiff testified that she had problems during the past with the air conditioning. She produced an expert witness who testified that if the thermostat was set at 70 ° for a four week period there should not be a great accumulation of mildew if the system is working properly. The air conditioning technician who had serviced the system in the past testified that he had repaired it in 1976 because the thermostat was not making contact, in 1977 because the rooms were overcooling and in 1978 because of a leak in the tank. Finally, the apartment manager, defendant Holland, testified that plaintiff did complain to him occasionally about air conditioning problems in the apartment. The record establishes that the trial court’s finding that air conditioning malfunctioning caused some mildew is not clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.1975).

Defendants further question the trial court’s judgment on liability on the basis of evidence that while plaintiff was on her trip her son occupied the apartment and caused, or contributed to, the mildew problem, that her failure to call her son as a witness in her behalf cast doubt on her case, and that her previous knowledge of mildew formation in the apartment charges her with contributory negligence and assumption of the risk with respect to mildew.

To support their argument that plaintiff’s son caused the mildew, they proved that he occupied the apartment for a week while plaintiff was away and that he was quite messy. They suggest that he may have set the thermostat too low, allowed wet clothing to hang around the apartment, let rain come in, or had parties in the apartment. The simple answer is that these suggestions are based on speculation and are not supported by evidence that the vast accumulation of mildew was caused by the conduct attributed to plaintiff’s son.

But defendants seek to avoid carrying their burden of proof by invoking an adverse presumption against plaintiff for failing to call her son as a witness in her behalf as in Moore v. Skidmore, 301 So.2d 428 (La.App. 4th Cir.1974). However, plaintiff was required to prove her case by a preponderance of evidence and was not obliged to call her son or any other additional witnesses whose testimony would have been cumulative as to her case. Penoailh v. Crain, 396 So.2d 947 (La.App. 1st Cir.1980) writ den. 399 So.2d 585. She was under no obligation to produce her son as a witness to rebut the speculation raised by defendants that his conduct and not the malfunction of the air conditioning system caused her some loss.

Defendants’ contention that plaintiff was contributorily negligent or assumed the risk of the mildew damage is based on evidence that she knew that this apartment had a tendency to produce mildew before she left for California. However, such evidence does not support the conclusion that she knew or should have known such a tremendous onslaught of mildew would occur as did on her 1979 trip. The burden was on defendants to prove this affirmative defense and the trial judge was apparently unconvinced by their proof. We find no manifest error in this conclusion.

As to quantum, plaintiff contends, first, that she is entitled to an increase to compensate her for physical suffering due to an aggravation of a pre-existing respiratory problem. Plaintiff testified that she had been treated by ear, nose and throat specialists before her trip to California but they were not called as witnesses. When she called her eye doctor to prove aggravation of her condition, defendants objected and the trial court sustained the objection stating that this doctor could not testify as to aggravation of a condition of which he had no knowledge. We see no error in this ruling and conclude that plaintiff failed to carry her burden of proof in this regard.

As to property damage, plaintiff contends that the trial judge should have awarded her some $7221 while defendants contend that she proved no damages. Plaintiff’s claim was based on her testimony as to the cost of replacing her wardrobe and furnishings, re-upholstering furniture and hiring persons to clean her property, her own time in cleaning up, and the cost of an appraisal of her damages. The trial judge noted that her replacement figures were based on the cost of new items and her refinishing was not confined to mere repair of damage caused as opposed to improvement. The same applies to the hours spent in cleaning up the apartment. Furthermore, the trial judge was in the best position to evaluate her testimony as to her own time spent cleaning the place and the record does not warrant a change by this court. As to the expert’s bill, we are cited no authority for awarding this item to plaintiff. On the other hand, plaintiff suffered some damages to her property which could not be exactly estimated. The award of $1500 is within the discretion of the trial judge under the circumstances of the case. Jordan v. Travelers Insurance Company, 257 La. 995, 245 So.2d 151 (1971).

Accordingly, the judgment is affirmed. AFFIRMED.


author: CIACCIO, Judge.

text:
    STATE of Louisiana v. Ronald RHOME.
    No. KA-0501.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 28, 1983.
    Harry F. Connick, Dist. Atty., Mary Charlotte McMullan, Asst. Dist. Atty., New Orleans, for State.
    Dwight Doskey, Howard McCurdy, Orleans Indigent Defenders, New Orleans, for appellant.
    Before SCHOTT, AUGUSTINE and CI-ACCIO, JJ.
   CIACCIO, Judge.

Defendant, Ronald Rhome, was charged by Bill of Information, with armed robbery. R.S. 14:64. He was tried before a jury, found guilty as charged and sentenced, as a multiple offender, to fifty (50) years imprisonment at hard labor without benefit of probation, parole or suspension of sentence. R.S. 15:529.1.

On August 21, 1982, at approximately 2:30 p.m., Louise Watson was working as a manager and cashier at the Little General Food Store at 3549 General Mayer Street in Algiers, Louisiana when she was approached by the defendant, Ronald A. Rhome. Rhome held a butcher knife on the victim and demanded that she remove the money from the cash register and place it in a brown paper bag for him. Ms. Watson complied with the demand and the defendant left the store with the bag containing the money. The victim reported the incident to a mechanic, Clifton Huff, who worked in a building near the crime scene. Mr. Huff followed the defendant into the TOO block of Lee Lane where he disappeared behind some houses. The police were summoned and they apprehended the defendant in the bedroom of a house on Lee Lane after being granted admission to the house by the defendant’s mother. The police seized the knife, a brown paper bag, some money and clothing of the defendant which were in plain view. The defendant was identified by the victim as the perpetrator of the armed robbery and he was also identified by Mr. Huff as the man he had followed unto Lee Lane. The defendant contended that he remembered little about the crime as he had been drinking on the day of its commission. The defense was rejected by the jury which voted 11 to 1 to convict the defendant of the crime of armed robbery.

The defendant assigned no specific assignments of error but requested a review of the record for errors patent. Accordingly, this record has been reviewed and we find none.

Additionally, we have reviewed the record for sufficiency of evidence in accordance with State v. Raymo, 419 So.2d 858 (La.1982). We find that viewing the evidence in the light most favorable to the state, a rational finder of fact could have found that each and every element of armed robbery had been proved beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560; State v. Fuller, 414 So.2d 306 (La.1982).

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

AFFIRMED.


text:
    Mrs. Hazel Jean PATTERSON v. Thomas James PATTERSON.
    No. CA-0565.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 28, 1983.

      Ronald F. Fontana, Metairie, for plaintiff-appellant.
    Louis A. Heyd, Jr., New Orleans, for ap-pellee.
    Before SCHOTT, AUGUSTINE and CI-ACCIO, JJ.
   CIACCIO, Judge.

Plaintiff, Hazel Patterson, appeals from a judgment of the district court which sustained the defendant’s exceptions of prescription and no cause of action. The exceptions were filed in response to the plaintiff’s rule to collect past due child support under a judgment secured in a foreign state. The judgment of the district court is affirmed in part and reversed in part.

The issues presented are: (1) Does Louisiana law or Mississippi law apply when a litigant seeks to collect past due child support under a Mississippi judgment made executory and sued upon in Louisiana? (2) Who may sue to collect the arrearages?

The facts are: Mr. & Mrs. Patterson secured a final divorce in Hinds County, Mississippi on May 8, 1972. Pursuant to the divorce decree, Mr. Patterson was ordered to pay $225.00 per month for the support of the couple’s three children. Mrs. Patterson had been awarded custody of the three children. The defendant made the last support payment in May, 1975. On October 22, 1981, Hazel Patterson filed a petition with the local district court for recognition of her foreign judgment. The Orleans Parish District Court rendered a judgment on June 3, 1982 which recognized the foreign judgment and made the same executory. On August 18, 1982, plaintiff filed a rule to show cause why her former husband should not be compelled to pay past due support in the amount of $51,850.00. The defendant filed exceptions of prescription and no cause or right of action. The district court maintained the defendant’s exceptions of prescription and no cause of action, dismissing the plaintiff’s action and plaintiff appeals.

Exception of Prescription

The trial court maintained the exception of prescription and dismissed the mover’s rule for past due child support and alimony for the period prior to August, 1979.

Appellant argues that her action has not prescribed because the Mississippi law of prescription applies to this case. We disagree.

Once a judgment of another state has been properly recognized and made the judgment of a Louisiana court, it has the same effect as if it was rendered by the Louisiana court. C.C.P. Art. 2541. Hastings v. Dinning, 308 So.2d 451 (La.App., 3rd Cir., 1975), writ den. 310 So.2d 851.

The general rule is that substantive rights are determined by the lex loci or the place where the action arose, while the procedural rights are governed by the lex fori or the place of the forum. See: Matney v. Blue Ribbon, 12 So.2d 249 aff. 202 La. 505, 12 So.2d 253 (La., 1942). Generally, prescription is a procedural matter and is governed by the law of the forum (i.e., which in this case is Louisiana). C.C. Art. 3532. Gierling v. Garner, 284 So.2d 664 (La.App., 3rd Cir., 1973): See also: Davis v. Colvin, 410 So.2d 1211 (La.App., 3rd Cir., 1982). In Louisiana, an action for arrearages of alimony is prescribed by three (3) years. C.C. Art. 3538. Arabie v. Arabie, 230 La. 1036, 89 So.2d 890 (La., 1956). See also: Morasco v. Metcalf, 381 So.2d 901 (La.App., 3rd Cir., 1980).

Mrs. Patterson filed her summary proceedings to collect past due support payments on August 18, 1982. Therefore, the trial judge was correct in maintaining the exception of prescription with regard to any arrearages prior to August, 1979 because these arrearages would have been in excess of three years old. We, accordingly agree with this portion of the trial court’s judgment.

Exception of No Right or Cause of Action

The following judgment was rendered by the district court, in response to the defendant’s exception of no right or cause of action:

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the exception of no cause of action filed on behalf of THOMAS JAMES PATTERSON, is hereby maintained and that mover in rule’s claim for the past due child support for the period subsequent to August 1979 be dismissed in accordance with LSA. Article 9:309(B).
JUDGMENT READ, RENDERED AND SIGNED in open court.

The exceptions of no cause of action and no right of action are peremptory exceptions. C.Cr.P. Art. 927.

No Cause of Action

The exception of no cause of action concedes for the purpose of its trial the correctness of the well-pleaded allegations of fact. Allied Chemical Corp. v. Iberville Parish Police Jury, 426 So.2d 1336 (La., 1983). This exception questions whether the law affords any remedy under the facts presented. Johnson v. Edmonston, 383 So.2d 1277 (La.App., 1st Cir., 1980). The pleadings reveal a Mississippi judgment, judicially recognized in Louisiana, which decrees a divorce between the parties and an obligation by Mr. Patterson to pay child support payments of $225 per month for the support of the three minor children. Mrs. Patterson’s rule to show cause reveals that it was filed August 18, 1982 and it seeks arrearages of $225.00 per month from May 3, 1972, pursuant to the executory judgment. Since the district court correctly found that the past due child support for the period prior to August, 1979 had prescribed, it would follow that no cause of action exists to collect those payments. Accordingly the district court correctly dismissed the plaintiff’s action with regard to those payments.

The parties agree that an obligation exists to support the minor children of the marriage, however they disagree on the law to be applied in order to determine minority. As previously stated, Mississippi law will be applied to questions which are remedial in nature. Accordingly, under the laws of Mississippi a minor is any person under twenty-one years of age. In August, 1979, Lydia was 24; Debra was 22 and Thomas was 19. Hence, the only cause of action which existed was for child support payments due for Thomas Patterson, Jr. subsequent to August 18, 1979 until June 23, 1981, when he would have become 21 years of age.

No Right of Action

The peremptory exception of no right of action raises the issue of whether the plaintiff belongs to that particular class of persons to which the law grants a remedy. Brouillette v. Consolidated Construction Co. of Florida, Inc., 422 So.2d 176 (La. App., 1st Cir., 1982). This peremptory exception, when pleaded before answer, shall be tried and decided in advance of the trial of the case. C.C.P. Art. 929. See: South Central Roofing & Sheet Metal Supply, Inc. v. McKay, 425 So.2d 951 (La.App., 5th Cir., 1983).

In the instant case it does not appear from the record that the trial court disposed of the exception of no right of action. This Court will resolve the issue because of judicial economy.

In the case of Hastings v. Dinning, supra, the court addressed the issue of whether the plaintiff-mother had a right of action for child support payments which became due during the minority of the children. The court stated the following:

Defendant’s first contention is that the plaintiff-wife has no right of action for child support for the children who are now over the age of 18. Defendant contends that as to the children who are over 18 years of age, only they have a right of action to recover these amounts. This contention was recently answered by this Court in Eaglin v. Eaglin, 306 So.2d 375 (3rd Cir.1975). We held there that the mother in whose favor the judgment for child support was rendered had a right of action to bring a suit to make executory child support payments which accrued during the minority of the children. We distinguished Bernhardt v. Bernhardt, La, 283 So.2d 226 (1973), which is relied on by defendant, on the grounds that Bernhardt held only that the mother has no right of action to sue for child support which becomes due after the child reaches the age of majority. Both in Eaglin and in the present case all of the child support sought became due before the children reached the age of majority. Hastings v. Dinning, supra, [308 So.2d] at 452.

Under the rationale of the Hastings decision, supra, Mrs. Patterson has a right of action for the child support payments that accrued during the minority of her youngest child for the period subsequent to August 18,1979 until June 23,1981. Therefore, the trial court should have overruled the exception of no right of action and awarded Mrs. Patterson a judgment for accrued child support payments for Thomas Patterson, Jr. from August 18, 1979 through June 23, 1981.

Accordingly, for the reasons assigned, the judgment of the district court maintaining the defendant’s exception of no right of action is reversed and we award judgment to the plaintiff in the amount of $1725 plus interest, attorney fees of $500 together with the cost of the proceedings in the trial court and for this appeal.

AFFIRMED IN PART AND REVERSED IN PART.

      . The three children of the marriage were bom as follows: Lydia Denise Patterson bom January 22, 1955, Debra Lynn Patterson bom April 10, 1957, Thomas James Patterson, Jr. born June 23, 1960.

      . See: Mississippi Code Article 1-3-27. Since this statute was offered to the trial court and considered by that court, we can assume that the statute is properly before this Court.


author: COVINGTON, Judge.

text:
    James E. DASPIT, et al. v. Ellen Tooley SWANN, et al.
    No. 15070.
    Court of Appeal of Louisiana, First Circuit.
    June 28, 1983.
    Rehearing Denied Aug. 23, 1983.

      L. Jay McCreary, Slidell, for plaintiffs, appellees.
    Tom W. Thornhill, Frank M. Repass, III, Slidell, for defendants, appellants.
    Before COVINGTON, LANIER and ALFORD, JJ.
   COVINGTON, Judge.

This is a suspensive appeal by Ellen Too-ley Swann, widow of Francis E. Swann, individually and as administratrix of the succession of Francis E. Swann, from a judgmentx, of the trial court signed July 17, 1981, in favor of James E. Daspit and Janet S. Daspit in the amount of $105,000, plus interest and costs.

This case involves a determination of the cause of a fire which occurred on or about September 27,1978, at the leased premises known as Swann Supply, destroying the building owned by Swann, and the merchandise and hardware business of the lessees, the Daspits. The hardware business had been sold by the Swanns to the Daspits (partially on credit), and they had also leased the building to the Daspits. U.S. Fire carried fire insurance for the Daspits on the business contents.

The trial court found that the Daspits had proved that the fire was most probably caused by an electrical malfunction, or a defect in the electrical wiring, located in the crawl-space between the ceiling and the roof, which area was not within the control of the lessees. In making this finding, the trial judge observed, in his reasons for judgment, that:

After reviewing all the evidence there is no doubt in the Court’s mind that the fire started in the crawl space between the ceiling and the roof and was more than likely electrical in nature. There is no question in the Court’s mind that this was not within the control of the lessee and was the responsibility of the owner of the building, Mrs. Ellen T. Swann. The Court finds that Mr. James E. Daspit proved to the satisfaction of the Court that it was not his responsibility that caused the fire and the evidence shows that Mrs. Swann failed to show that it was not her responsibility. Accordingly the Court holds that Mrs. Swann is responsible for the damages caused in this matter.

Under LSA-C.C. 2695, the lessor is liable to the lessee for any losses sustained as a result of “vices and defects” in the premises, provided they did not arise as a result of the lessee’s fault.

This case turns on a question of burden of proof, and as to whether the evidence, taken as a whole, establishes that the fire, more probably than not, was caused by fault of defendant Swann.

The fire occurred on a Wednesday afternoon, at a time when the hardware store was closed for business, as was its custom. The first person on the fire scene was A.J. McGehee, the Pearl River Chief of Police. Chief McGehee saw no flames inside the store at that time, but he did observe smoke in the building, coming out the eave area of the second room.

“The lessor guarantees the lessee against all the vices and defects of the thing, which may prevent its being used even in case it should appear he knew nothing of the existence of -such vices and defects, at the time the lease was made, and even if they have arisen since, provided they do not arise from the fault of the lessee; and if any loss should result to the lessee from the vices and defects, the lessor shall be bound to indemnify him for the same.”

Steve Baragona, a member of the Pearl River Fire Department, was also one of the first persons on the scene. Upon arrival, he saw smoke coming out of the side of the building in the roof part. When he first walked into the store (after forcing the front doors), he saw very little smoke in the front part of the building. On his second trip inside the store (after getting his mask and equipment), he still only saw a small amount of smoke toward the rear of the store, coming from the ceiling, and he quickly left the store. On neither trip inside the store did Baragona observe flames in the actual store area. Baragona stated that .the fire originated in the area between the ceiling and the roof. He specified that the only space the fire could have started was the crawl-space area, where the electric wires were located. There was no evidence of an explosion.

Ansel Kern, the Civil Defense Director of the City of Pearl River, arrived at the scene at about the same time as did the fire truck. He noticed smoke coming through the roof section, around the eaves and facia boards. He looked through a window and saw smoke inside the store, coming from the ceiling. He did not see flames in the building. As he walked around the building, he observed some firemen pulling boards away from the roof area, and flames appeared in that area. He also smelled traces of ozone, which he said was created by the arcing of electric wires.

Edward Poppler, Chief of the Slidell Fire Department, was called to the fire by the Pearl River Chief to render assistance. When Poppler entered the store, he observed heavy smoke near the ceiling, but saw no flames inside the building. He testified that the char-depth on the beams indicated that the flames started toward the back of the building.

James Daspit received a call at his home, telling him of the fire. When he arrived at the scene, the fire engines were already there. He noticed that the front door had been broken open, and he could see smoke coming from the facia boards near the roof. He went to Chief McGehee, who told him that the fire had not yet been located. Daspit then entered the store to get his gate key for the Chief. While inside the store, he saw no flames, but he did see smoke near the ceiling in the second room. After unlocking the gate to the yard fence, Daspit saw firemen pulling facia boards from the building. It was after the boards had been removed that he first saw flames, and the flames quickly spread over the roof. In a matter of minutes, the roof section collapsed into the store area.

Daspit further testified that the crawlspace was a small space between the ceiling and the roof. This space was not accessible to and was not used by the Daspits. No paints, thinners, or other flammable materials, or anything else was stored in the area. The only heat source known to have been in the crawl-space was electrical wires running to ceiling light fixtures — the same electrical wires that were in place when the Daspits first leased the building. The Das-pits had not made any electrical repairs or installations in that area.

Patsy Ellis testified that she heard an explosion while working on Mrs. Daspit’s hair at the Ellis Beauty Parlor, about a half block away from the hardware store. Shortly thereafter, Mrs. Ellis heard the fire engines as they went to the scene. She followed the Pearl River fire truck to the scene, and she saw flames, and heard, on arrival, several more explosions coming from the flaming building. She could not state with any degree of certainty that the explosion she first heard came from the hardware store. Mrs. Daspit denied having heard an explosion while in the beauty parlor. Baragona observed no such flames when he arrived on the scene with the Pearl River fire truck; he fought the fire to its conclusion and knew nothing about any explosion. There is nothing in the testimony of any of the firemen or officers at the scene to support the testimony of Mrs. Ellis concerning the flames and explosions.

There were several suggestions made by appellant’s expert in industrial and occupational safety, Stanley L. Day, as to possible causes. However, Day admitted that he could not reach a “firm conclusion” as to the cause and origin of the fire. A possibility suggested by Day dealt with spontaneous combustion or ignition of flammable materials located on the ground floor of the store; however, the firemen and the officers testified to seeing no flames on the ground floor level at the start. Day’s suggestion of the forced air heater as being the source of the fire was also ruled out by the testimony of those at the scene.

Francis A. Richard, an independent adjuster, when asked as to where and how the fire started, testified as follows:

Q. Could you conclude from your investigation where the fire might have started?
A. Yes.
Q. Where do you think?
A. In the crawl space or attic space between the ceiling in the store and the roof.
Q. What facts that you got from the people that you interviewed indicated to you that there might have been fire originating in the crawl space in the attic?
A. Well, the — first of all, we had our own insured’s statement that he gave us. The fact that he had entered the store. We also had Mr. Ansel Kern, I believe, that we interviewed who was one of the first people on the scene, who told us where he saw the smoke coming from around the eaves of the building, if you will. That when they entered the building when the firemen arrived, there was no fire on the inside of the building. There was some smoke but no fire and since fire always burns up, you know, it was a foregone conclusion from the fact where the firemen were fighting to try to get to the fire. They were trying to pull off siding to get to the crawl space. The fire couldn’t be located. It obviously was very concealed and not in the open area of the store.
Q. Could there have been more than one cause of the fire in your opinion?
A. Well, we pretty much ruled out the weather situation and because of the location of the fire, we came to the conclusion that the fire was in all likelihood electrical in origin.

Dr. Robert L. Drake, an electrical engineering expert, testified that the wires he examined which came from the burned building were of substandard quality and were not suitable for use in certain locations.

We believe the evidence clearly preponderates in favor of the trial court’s conclusion that the fire started from defective electrical wiring located in the crawl-space between the ceiling and the roof of the hardware store. While plaintiffs must establish their claim by a fair preponderance of evidence, direct or circumstantial, it is not necessary that they do so beyond all doubt. Their burden has been successfully borne when the evidence, as a whole, shows that the defendant’s fault was the most plausible or likely cause of the fire and when no other factor can as reasonably be ascribed as the cause. The likelihood of causation due to the particular defendant’s fault must preponderate over the likelihood of causation from any other factor. Boudreaux v. American Insurance Company, 262 La. 721, 264 So.2d 621 (1972); Hanover Insurance Company v. Jacobson-Young, Inc., 294 So.2d 564 (La.App. 4th Cir.1974); Nickens v. McGehee, 184 So.2d 271 (La.App. 1st Cir.1966), writ refused 249 La. 199, 186 So.2d 159 (1966).

In the instant case, the trial court determined that the plaintiffs established that the defendant’s fault was the most plausible cause of the fire. Such a finding of fact is not to be disturbed in the absence of manifest error. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978); Canter v. Koehring Company, 283 So.2d 716 (La.1973). There was a considerable amount of impressive circumstantial evidence from which the trier of fact could have reasonably concluded that the fire was caused by an electrical defect in the wiring in the crawl-space between the ceiling and the roof. There was no credible evidence from which one could conclude that the fire was caused by fault attributable to the lessees, or from any other source. Therefore, we find that the evidence preponderates in the plaintiffs’ favor.

On the question of damages to the Das-pits, the trial court found that the loss of the Daspits was $105,000.00, as follows:

The question of damages as to Mr. Daspit is very difficult to assess in view of the loss of the records of the business in the fire. Mr. Daspit has established that he had a beginning inventory of $95,000.00 at the beginning of the year in addition he had purchased $56,824.00 worth of merchandise. He had total sales of $51,-672.20 to the date of the fire in 1978. In view of the fact that his sales would represent a profit margin he should have had an excess of $100,000.00 in merchandise in the store at the time of the fire. In addition to the cost of the merchandise he had furnishings which if established at a cost less depreciation would amount to $3,285.83. But as pointed out at the trial the furnishings would probably cost a great deal more if these items had to be replaced inasmuch as the figures were used for income tax purposes rather than the actual value at the time of the fire. The Court believes that the evidence supports the finding of $105,000.00 as being the loss suffered by Mr. Daspit in the destruction of his business by the fire. Accordingly the Court will award him the sum of $105,000.00 subject to the claim of U.S. Fire Insurance Company in the amount of $75,000.00 and the claim of Mrs. Swann.

Where damages cannot be accurately measured or proven, the trial court is vested with considerable discretion in the assessment of damages as may be warranted by the facts and circumstances. An award made under such circumstances will not be disturbed unless it appears that the trial court has abused its discretion in fixing the amount thereof. Nickens v. McGe-hee. In the instant case, we find that the trial court gave due consideration to the facts and circumstances involved; hence, we find no abuse of discretion. Thus, the Daspits are entitled to recover the sum of $105,000.00 subject to the claim of U.S. Fire in the amount of $75,000.00 and the claim of Swann in the amount of $25,548.18, plus interest and attorney fees.

For the reasons assigned, we amend the judgment signed July 17, 1981, to accord with the October 2, 1981, amended judgment, and as amended the judgment appealed is affirmed. Costs of this appeal are to be borne by appellant.

AMENDED AND AFFIRMED.

      . There are judgments also in favor of U.S. Fire Insurance Company and against Mrs. Swann in the amount of $75,000, and in favor of Mrs. Swann in the sum of $25,545.18 on her demand against the Daspits. The judgment was amended October 2, 1981, to show that the award to the Daspits was subject to a credit of $75,000.00 to be paid to the insurance company as subrogee.

      . There were three related cases on the docket of the trial court: The present case, which is a suit for damages .brought by the Daspits against Mrs. Swann for a fire loss; the second case, 436 So.2d 611, in which Mrs. Swann sought recovery on a promissory note given by the Daspits in the purchase of a business and of damages for breach of contract for failure to keep insured against fire loss the premises leased to the Daspits; and the third case, 436 So.2d 612, in which U.S. Fire Insurance Company, as the subrogated fire insurer, sought recovery of the amount paid by it to the Das-pits for their fire loss. We are rendering a separate judgment in each case. The last case had been dismissed as an appeal by another panel of this Court on March 2, 1982, 411 So.2d 1173, but has now been reinstated on order of the Louisiana Supreme Court, 424 So.2d 240, decided November 29, 1982.

      .The fire report and other documents give the date of the fire as September 27, 1978 although some of the testimony and the Louisiana Supreme Court mention September 20, 1978 as the date of the fire. During his testimony, Mr. Daspit and his counsel referred to September 27, 1978 as the date of the fire. The date is not significant for purposes of these cases, since obviously there was only one fire (which totally destroyed the building).

      . LSA-C.C. art. 2695 provides:


text:
    Ellen T. SWANN v. James E. DASPIT.
    No. 15071.
    Court of Appeal of Louisiana, First Circuit.
    June 28, 1983.
    Rehearing Denied Aug. 23, 1983.
    Frank M. Repass, III, Tom W. Thornhill, Slidell, for plaintiff, appellant.
    Edward A. Shamis, Jr., L. Jay McCreary, Slidell, for defendant, appellee.
    Before COVINGTON, LANIER and ALFORD, JJ.
   COVINGTON, Judge.

This is a companion case to “James E. Daspit, et al. versus Ellen Tooley Swann, et al.", 436 So.2d 606.

On January 30,1979, James E. Daspit and his wife, Janet S. Daspit, d/b/a Swann Supply, brought suit against Ellen Tooley Swann, widow and administratrix of the succession of Francis E. Swann. Plaintiffs sought damages on the ground that Swann Supply, a business operated out of a building leased by plaintiffs from defendant, was destroyed on or about September 27, 1978, by a fire allegedly caused by defective wiring.

On February 7, 1979, Ellen T. Swann filed suit against James E. Daspit, seeking through her original and amended petitions to recover $30,696.05, plus interest and attorney fees, allegedly owed on a $46,000 note held by Swann, and representing the sum claimed to be owed by Daspit in payment for the purchase of Swann Supply. Swann also claimed breach of contract in that Daspit was alleged to have agreed to keep Swann Supply insured against loss by fire.

Since all three cases arose out of the same occurrence and common questions of law and fact were involved, the cases were ordered consolidated for trial.

In the present case, the trial court found that Daspit owed Swann $25,545.18, plus interest and attorney fees, on the promissory note, and rendered judgment in that amount in her favor. On this appeal, Swann contends that the trial court failed to award her all sums due on the promissory note.

After hearing the testimony, the trial judge ruled that Daspit had signed the act of sale and the promissory note, and held that Swann was entitled to collect on the note. The court found that there was a balance of $25,545.18 due at the time of the fire. The evidence showed that Daspit made all payments on the note up until the time of the fire, and made no payments thereafter. Based on this evidence, the judge figured the balance due, using the amortization schedule, and arrived at the amount awarded in the judgment. 'We agree. The record reflects that the trial court properly and correctly calculated the amount due and owing to Swann in the instant case.

For the reasons assigned, we affirm the judgment appealed at appellant’s costs.

AFFIRMED.

      . The present case was also consolidated with the case of “U.S. Fire Insurance Company versus Ellen Tooley Swann", 436 So.2d 612, which case had been dismissed as an appeal by another panel of this Court, 411 So.2d 1173 (March 2, 1982); the dismissal was reversed by the Louisiana Supreme Court and the case ordered to be reinstated, 424 So.2d 240, decided November 29, 1982.

      . The fire report and other documents give the date of the fire as September 27, 1978. During his testimony, Mr. Daspit and his counsel referred to the fire as being on September 27, 1978. The date is not significant for purposes of these cases, since obviously there was only one fire (which totally destroyed the building). We mention this date only because some of the testimony and the Louisiana Supreme Court mention the date of the fire as being on September 20, 1978.


text:
    U.S. FIRE INSURANCE COMPANY v. Ellen Tooley SWANN.
    No. 15072.
    Court of Appeal of Louisiana, First Circuit.
    June 28, 1983.
    Rehearing Denied Aug. 23, 1983.

      Leonard A. Young, New Orleans, for plaintiff, appellee.
    Frank M. Repass, III, Tom W. Thornhill, Slidell, for defendant, appellant.
    Before COVINGTON, LANIER and ALFORD, JJ.
   COVINGTON, Judge.

This is a companion case to “James E. Daspit, et al.. versus Ellen Tooley Swann, et al.”, 436 So.2d 606, and “Ellen T. Swann versus James E. Daspit,” 436 So.2d 611. This appeal was originally dismissed as untimely 411 So.2d 1173, but has been reinstated on order of the Louisiana Supreme Court in “U.S. Fire Insurance Company versus Ellen Tooley Swann, et al.,” 424 So.2d 240 (La.1982).

The evidence in the record establishes that U.S. Fire paid the amount of $75,-000.00 to the Daspits, its insureds, as a result of the fire caused by the fault of Swann and was subrogated to their rights to the extent of the payment. For the reasons assigned in the companion case of “James E. Daspit versus Ellen Tooley Swann, et al.,” 436 So.2d 606, we amend the judgment of July 15, 1981 to accord with the October 2, 1981 amended judgment, and as amended affirm the judgment appealed. Costs of this appeal are to be borne equally by appellant and appellee.

AMENDED AND AFFIRMED.

      . On August 1, 1979 on motion of Swann, the U.S. Fire suit was consolidated with the two other lawsuits. Trial on the merits of the three consolidated suits was held on November 5, 1980. On July 9, 1981 the trial judge issued reasons for judgment in the matter. Essentially the lower court found that fault lay with Swann because the fire was caused by defective wiring in the building. He found that the damages to which the Daspits were entitled amounted to $105,000.00; that Swann was entitled to recover from the Daspits $25,548.18 (plus interest and attorney’s fees), the balance due on the Daspits’ promissory note; and that United States Fire, as subrogee, was entitled to a $75,000.00 portion of the $105,000.00 Daspit damages. Thus he recited that the court would award the Daspits the sum of $105,000.00 subject to the claim of United States Fire Insurance Company in the amount of $75,000.00 and the claim of Mrs. Swann.
      The trial judge concluded his reasons by reciting, “the court will sign a judgment in accordance with these reasons when one is presented to it.”
      The reasons for judgment were issued under the following caption and number:
      JAMES E. DASPIT and his wife JANET S. DASPIT d/b/a SWANN SUPPLY
      VERSUS
      ELLEN TOOLEY SWANN, widow of FRANCIS E. SWANN, Individually and Administratrix of the Succession of FRANCIS E. SWANN
      NUMBER 54668
      22ND JUDICIAL DISTRICT
      COURT
      PARISH OF ST. TAMMANY
      STATE OF LOUISIANA
      At this juncture the attorneys did not, as contemplated by the trial judge, present a single judgment in the three consolidated cases conforming with the trial judge’s reasons. Rather, respective counsel for U.S. Fire and the Daspits presented, and had the judge sign, separate judgments on July 15, 1981 and July 17, 1981.
      The July 15, 1981 judgment awarded U.S. Fire $75,000.00, plus costs and legal interest against Swann. The July 17, 1981 judgment awarded the Daspits against Swann $105,-000.00, costs and legal interest, and in a separate paragraph it awarded Swann against the Daspits $25,545.18 plus legal interest and attorney fees. This latter judgment did not recite, as it should have, that $75,000.00 of the $105,-000.00 Daspit award belonged to U.S. Fire.
      As a result of the signing of the two judgments as presented, in the latter of which the $105,000.00 Daspit award was not made subject to credit for U.S. Fire’s $75,000.00 entitlement, Swann was cast in judgment for $75,-000.00 more than was intended by the trial judge in his written reasons.
      Counsel for Swann chose not to have the judgments corrected by way of a motion for new trial, but instead, chose to seek relief by way of appeal. Accordingly, on August 7, 1981, counsel for Swann filed a petition and order for suspensive appeal. This petition was captioned and numbered exactly like the trial court’s reasons for judgment, that is, No. 54,-668, “James E. Daspit and his wife, Janet S. Daspit, d/b/a Swann Supply v. Ellen Tooley Swann, widow of Francis E. Swann, Individually, and as Administratrix of the Succession of Francis E. Swann.”


author: CUTRER, Judge.

text:
    Leroy “Lee” J. DAUTREUIL, et al., Plaintiffs-Appellants-Appellees, v. Larry C. DEGEYTER, et al., Defendants-Appellees-Appellants.
    No. 83-68.
    Court of Appeal of Louisiana, Third Circuit.
    June 29, 1983.

      David W. Groner, New Iberia, for plaintiffs-appellants-appellees.
    Perrin, Landry, DeLaunay & Durant, Gerald C. deLaunay, Lafayette, for defendants-appellees-appellants.
    Before FORET, CUTRER and LA-BORDE, JJ.
   CUTRER, Judge.

Leroy J. and Shirley M. Dautreuil (Dau-treuil) brought suit for a declaratory judgment against Larry C. and Juanita M. De-geyter and others (Degeyter) to have interpreted certain provisions of a conventional servitude of passage. After trial the trial judge “reformed” the servitude agreement to provide that plaintiff and defendants share the “cost of improving the servitude regardless of when or by whom it is improved.” Both sides have appealed. We reverse.

FACTS

The trial judge correctly stated the basic facts of this case as follows: (To assist the reader in understanding the facts of this case a rough sketch of the area involved is appended in this opinion.)

“In 1978 Dautreuil, Lee and Landry acquired in indivisión a tract of approximately 116 acres of farm land in Iberia Parish near Vida Shaw Road (a public road) for the purpose of developing a residential subdivision.
“On March 23,1979, Dautreuil, Lee and Landry partitioned the property. Dau-treuil acquired the front 33 acres which did not front on Vida Shaw Road but which had access to it via LaChute Street, a public street, * * * while Lee and Landry acquired the rear 83 acres in indivisión. The rear tract did not front on either Vida Shaw Road or LaChute Street or any other public road. * * * In the partition Dautreuil granted a servitude of passage to Lee and Landry in the following terms:
' Appearers LEROY (LEE) J. DAU-TREUIL and SHIRLEY MIGUEZ DAUTREUIL hereby grant a right-of-way or servitude in favor of the property received by RALPH K. LEE, JR., MARILYN HILLMAN LEE, J. WAYNE LANDRY, and RITA DU-GAS LANDRY as above described, and conveys to RALPH K. LEE, JR., MARILYN HILLMAN LEE, J. WAYNE LANDRY, and RITA DUGAS LANDRY, their heirs, successors and assigns a right-of-way or servitude over and across the property received by LEROY (LEE) J. DAUTREUIL and SHIRLEY MIGUEZ DAUTREUIL as described above, said servitude to be sixty (60') feet in width fronting on the Vida-Shaw Road and extending back to the property received by RALPH K. LEE, JR, MARILYN HILLMAN LEE, J. WAYNE LANDRY, and RITA DU-. GAS LANDRY shown as Tract 2 on the plat of survey attached hereto, the precise location of said servitude or right-of-way to be mutually agreed upon by consent of LEROY (LEE) J. DAUTREUIL and SHIRLEY MIGUEZ DAUTREUIL, their heirs, successors, or assigns, and RALPH K. LEE, JR., MARILYN HILLMAN LEE, J. WAYNE LANDRY, and RITA DU-GAS LANDRY, their heirs, successors or assigns.’
“Discussion thereafter ensued between Dautreuil and Lee (the latter apparently as spokesman for his co-owners) as to the location of the servitude. Lee wanted it as an extension of LaChute Street parallel to the common boundary between these properties and the Brendon Country Club property to the west. Dautreuil wanted it parallel to and adjacent to the canal which forms the eastern boundary of these properties.
“On June 30th, 1980 Dautreuil and Lee came to terms and a servitude agreement (prepared by Lee and Landry) was signed by all parties (P.R. Burke apparently having acquired an interest with Lee and Landry) placing the servitude roughly in the center of the Dautreuil property in a “Z” configuration connected to LaChute Street. * * * ” (Emphasis ours. Reference to exhibits by trial court omitted.)

The owners had planned to subdivide their respective portions for residential purposes. Lee, Landry and Burke surveyed the rear property and the servitude preparatory to such improvements. However, they abandoned their plans for development of the rear property and sold it to defendants herein. In the deed to defendants, specific reference was made to the servitude agreement. The defendants took no steps to utilize or improve the servitude. They began using the rear acreage for farming purposes.

Dautreuil, on the other hand, proceeded with the development of his front acreage for subdivision purposes. In the process of opening the subdivision Dautreuil laid out his proposed subdivision in such a manner that approximately thirteen lots were fronting along the servitude in question. To be able to sell these lots, it was necessary that Dautreuil open and improve the servitude to give these lots ingress and egress to Vida Shaw Road. To accomplish this, Dautreuil graded and placed shell on a portion of the servitude, leaving the remainder of the servitude (454 feet) unimproved.

Defendants had taken no steps to improve or use any of the servitude and had taken no steps that would indicate an intended use of their property for subdivision development. They refused to pay for the improvements that had been made by Dau-treuil.

Dautreuil filed suit to have the trial court declare that Degeyter was obligated to pay for the improvements made by him.

To resolve the controversy the trial judge, relying on the equities of the situation as he saw them, declared that the servitude agreement between Dautreuil and Lee, et al., which now exists in favor of Degeyter as owner of the dominant estate, required reformation. The trial judge noted “defendants’ property does not front on any public road, therefore, sooner or later it is likely defendants will utilize the road and benefit from it,” and held “that justice requires that the servitude agreement be reformed to provide that plaintiffs and defendants shall each bear one-half the cost of improving the servitude area regardless of when or by whom it is improved.”

Both Dautreuil and Degeyter have appealed; each arguing that the other, alone, should bear the cost of improving the servitude. Both sides cite and rely upon the language of the servitude agreement to support their respective positions.

The issue presented is whether Dautreuil is entitled to a declaratory judgment pursuant to the servitude agreement, stating that Degeyter must pay for Dautreuil’s improvement of the servitude of passage. The solution to this issue will be determined by an interpretation of the conventional predial servitude in question.

The principles to be applied in the resolution of the issue are as follows:

Basically, a predial servitude is a charge on one piece of land, a servient estate, for the benefit of another piece of land, a dominant estate; the estates belonging to different owners. LSA-C.C. art. 646. Such a servitude may be established by contract, LSA-C.C. articles 654, 697 and 722; and one such servitude specifically provided for in the Civil Code is the servitude of passage, LSA-C.C. articles 699 and 705. When a servitude of passage is created by contract, that contract regulates the extent of the servitude, LSA-C.C. art. 697, keeping in mind that servitudes are limitations on ownership and, as such, are not favored in law; thus, any doubt as to the existence, extent or manner of exercise of a predial servitude is to be resolved in favor of the servient estate, LSA-C.C. art. 730.

Generally, the owner of a dominant estate has a right to use the servitude in favor of his estate along with any rights which may be accessory to the use of the servitude. LSA-C.C. art. 743. An owner of a dominant estate may go upon a ser-vient estate to make either original works or repairs, at his own expense, which are necessary to the use and preservation of the servitude. LSA-C.C. articles 744 and 745. The owner of the servient estate must suffer the use of his property by the dominant estate but usually is not called upon to do anything to facilitate the dominant estate’s use. LSA-C.C. art. 651. The owner of the servient estate is, in fact, precluded from hampering the use of the servient estate by the dominant estate. LSA-C.C. art. 748.

The Louisiana Supreme Court has spoken on the weight to be given to the terms of a contract which establishes a predial servitude. In Ogden v. Bankston, 398 So.2d 1037 (La.1981), the court said:

“This court must give effect to the terms by which such servitudes are established: property owners have the right to establish whatever servitudes they deem proper, ‘... their power in that respect being limited only by considerations of public policy ...’ Bernos v. Canepa, 114 La. 517, 520, 38 So. 438, 440 (1905).
******
“[W]hen the initial establishment of a servitude does not, by its terms, reserve any special rights in favor of the servient estate, such rights cannot be recreated and superimposed over the terms of the original contract without the assent of the owner of the dominant estate.”

The servitude of passage, executed by Dautreuil and Degeyter’s ancestors in title states as follows:

“Grantors [Dautreuil], owners of the property described first hereinabove, for and in the same consideration as that in the deed of partition recorded at COB 706, folio 158, Entry Number 79-2387, Iberia Parish Records, and the agreements and covenants hereinafter made, do hereby grant unto and in favor of the property described secondly below and owned by Grantees, their heirs, assigns and successors [Degeyter], a servitude of passage across and over the property owned by Grantors herein, said servitude of passage being Sixty (60') feet in width and beginning at Point A where the property of Grantors and Vida-Shaw Road are adjacent and contiguous across and over the lot of Grantors to Point B where Grantors’ and Grantees’ properties are adjacent and contiguous as shown on plat of survey by J. Wayne Landry, G.E., L.S., dated June 16, 1980, a copy of which is attached hereto and paraphed for identification herewith.
“Any road or roadways constructed over and across the above granted right-of-way or servitude shall be at the sole expense of Grantees, their heirs or assigns, and shall be so constructed so as to be acceptable to the Parish of Iberia as a public road.
“After any road or roadways acceptable to the governing authority of Iberia Parish are constructed over and across the above granted right-of-way or servitude and Grantees, their heirs or assigns, desire to dedicate such road or roadways to the public, Grantors, their heirs or assigns, agree to so dedicate that road or roadways.” (Emphasis added.)

As we examine the servitude agreement along with the authorities cited above, we conclude that the trial judge was clearly wrong in reforming the agreement and applying the principles of equity.

The language of the servitude agreement provides that the dominant estate has a right to go over and across the servient estate to a public road. As the facts now stand Degeyter’s estate is still landlocked. No logical construction of the servitude agreement suggests that the dominant estate agreed to pay for a road which does not allow ingress or egress for the dominant estate. The agreement cannot be interpreted so as to obligate the owners of the dominant estate to pay for the partial improvement of the servitude which improvement does not enure to the benefit of the dominant estate.

A servient estate cannot force a dominant estate to use a right-of-way which exists in favor of the dominant estate.

The very essence of a predial servitude is that the dominant estate has a right to do something which may limit the use of the servient estate. The fact that this is a conventional predial servitude indicates that at least Dautreuil, being a party to the original servitude agreement, understood that his estate would have to suffer the inconvenience of the servitude by the dominant estate. It is only after the dominant estate has gone upon the servient estate that the servient estate can demand certain upkeep and repair from the dominant estate. The servient estate cannot compel the owners of the dominant estate to exercise their right of passage.

The trial judge was clearly wrong in finding injustice in the fact that, in the future, the dominant estate might benefit from Dautreuil’s improvements along the servitude right-of-way. Degeyter never sought to use his right of passage and should not be charged for improvements which he does not desire. The trial judge assumes that, because the Degeyter estate is “landlocked,” it may one day require access and, thus, since it will benefit from the partial improvement, it should share the cost of the improvement. It is speculation that Degeyter will ever use the right-of-way which exists in his favor. We cannot force him to do so and there is no injustice in Dautreuil having to pay the cost of an improvement to part of the right-of-way which benefits only his estate. Degeyter has the statutory right to either use or not use the servitude. If he chooses not to use same, it may be extinguished by the prescription of non-use.

In conclusion, we find the trial judge, though guided by what he believed to be the equities of the situation, was clearly wrong in holding the servitude agreement in question required reformation. We hold that, in no event, does the servitude agreement contemplate the dominant estate paying for improvements along the servitude right-of-way which do not provide the dominant estate ingress and egress. Further, the essence of a predial servitude is the right, as opposed to the obligation, of a dominant estate to make use of a portion of the servient estate; as such, the servient estate cannot, at its convenience, make improvements along the servitude right-of-way, which improvements the dominant estate neither desires nor contemplates using, and charge these costs to the dominant estate..

For these reasons the judgment of the trial court is reversed and set aside. Plaintiff’s suit is hereby dismissed. The costs of the trial court and of this appeal are to be borne by plaintiffs.

REVERSED AND RENDERED.

      . Apparently defendants have other ingress and egress to the rear property which they use for their farming operations.

      . The only testimony presented at trial consisted of testimony by Dautreuil and the original owners of the defendants’ land (Lee, Landry and Burke) relating to the intent of the parties to the agreement. Since Lee, Landiy and Burke are not made parties to this lawsuit this parol evidence will not be considered, Graham v. Congregation of St. Rita Roman Catholic Church, 146 So.2d 666 (La.App. 4th Cir.1962), and we will limit our review to the actual wording of the pertinent documents.


author: FORET, Judge.

text:
    STATE of Louisiana v. Jarrell Delano FRITH.
    No. K83-97.
    Court of Appeal of Louisiana, Third Circuit.
    June 29, 1983.
    See also La.App., 412 So.2d 1000.
    Paul J. deMahy, St. Martinville, for defendant-relator.
    Bernard E. Boudeaux, Dist. Atty., and J. Phil Haney, Asst. Dist. Atty., St. Martin Parish, St. Martinville, for plaintiff-respondent.
    Before FORET, CUTRER and LA-BORDE, JJ.
   FORET, Judge.

Jarrell Delano Frith (defendant) was indicted on September 17, 1980, for three counts of attempted aggravated rape of his six-year-old niece Upon motion of the State, the counts were severed and the indictment amended to charge defendant with one count of attempted aggravated rape alleged to have occurred in October of 1979. Defendant was tried by jury on this count and found guilty on December 11, 1980. From this conviction, defendant appealed to the Louisiana Supreme Court. In State v. Frith, 412 So.2d 1000 (La.1982), defendant’s conviction was reversed and the case remanded to the trial court.

On July 19, 1982, the State began the second trial of defendant on the amended indictment. Prior to trial, in answer to a “MOTION FOR BILL OF PARTICULARS”, the State averred that the offense was committed between October, 1979 and May, 1980. After trial commenced, the State moved to amend the indictment “... to read the dates of October to May — October of 1979 to May of 1980”. Upon conclusion of the trial, the jury retired to deliberate. After approximately twenty minutes, the jury informed the trial court that it had reached the following verdict:

“WE, THE JURY, FIND THE DEFENDANT: Guilty.”

After completion of the pre-sentence investigation, the trial court sentenced defendant to serve thirty years at hard labor. From this conviction, defendant appealed to this Court. In State v. Frith, 436 So.2d 623 (La.App. 3 Cir.1983), we affirmed defendant’s conviction.

ASSIGNMENT OF ERROR

“The Trial Court erred in denying Jarrell D. Frith’s Motion to Quash Counts 2 and 3 of the indictment against him.”

FACTS

On December 6, 1982, defendant filed a “MOTION TO QUASH” the indictment against him on the ground that the time limitation for commencement of trial had expired. The trial court ordered the State to show cause on January 19,1983, why the motion should not be granted. On that date, a contradictory hearing was held by the trial court and the matter was submitted. The trial court then denied the motion.

Thereafter, defendant filed notice of his intention to apply to this Court for a writ of certiorari (review) and for a stay order. On February 3, 1983, defendant filed his application. Subsequently, we denied defendant’s application for a writ of review in part and granted it in part, stating that:

“Relator’s application is denied insofar as Count I of the indictment is concerned, the trial court having ruled, that inasmuch as relator’s conviction on that Count is now on appeal before this Court, the trial court is divested of jurisdiction of any consideration of a motion to quash; as to Counts II and III of the indictment, relator’s application is granted and will be set for briefing, hearing with oral argument, unless waived, and for a considered opinion at a later date.”

We will now proceed to render that opinion.

MOTION TO QUASH

Defendant contends that the trial court erred in denying his motion to quash Counts II and III of the indictment against him. Defendant’s contention is based on the provisions of LSA-C.Cr.P. Article 578(2).

LSA-C.Cr.P. Article 578(2) provides:

“Art. 578. General rule
Except as otherwise provided in this Chapter, no trial shall be commenced:
(2) In other felony cases after two years from the date of institution of the prosecution; and

LSA-C.Cr.P. Article 382 provides, in pertinent part, that:

“Art. 382. Methods of instituting criminal prosecutions
A prosecution for an offense punishable by death, or for an offense punishable by life imprisonment, shall be instituted by indictment by a grand jury. Other criminal prosecutions in a district court shall be instituted by indictment or by information.

Defendant argues that prosecution was instituted against him on all three counts of attempted aggravated rape, when the St. Martin Parish Grand Jury indicted him for those offenses on September 17, 1980. He further argues that the only suspension of the time limitation was caused by the filing of pre-trial motions on November 3, 1980. The suspension ended on December 1, 1980, when these motions were heard and disposed of. LSA-C.Cr.P. Article 580. Thus, the time limitation for bringing him to trial on Counts II and III of the indictment has expired.

The record reveals a lapse of more than two years since defendant’s indictment on Counts II and III, and the State has failed to commence trial of him on those counts. A heavy burden, therefore, is placed upon the State to show some interruption or suspension sanctioned by law to justify trial of the accused. State v. Guidry, 395 So.2d 764 (La. 1981).

However, a review of the transcript of the hearing held on defendant’s motion to quash shows that the State presented no evidence to show that some interruption or suspension sanctioned by law had occurred, which would justify trial of defendant on Counts II and III of the indictment. In fact, the State admitted that the time limitation had expired with respect to these two counts.

Confusion arose at the trial court’s hearing on defendant’s motion to quash when he attempted to argue that the time limitation had expired with respect to all three counts contained in the indictment. Essentially, defendant asserted that it was impossible for the State to prove which count he had been tried on and convicted of. The trial court, without determining whether defendant’s assertion was correct, in effect, decided that it had been divested of jurisdiction over this entire matter by virtue of defendant’s appeal to this Court of his conviction of Count I.

LSA-C.Cr.P. Article 916 provides, in pertinent part, that:

“Art. 916. Divesting of jurisdiction of trial court
The jurisdiction of the trial court is divested and that of the appellate court attaches, upon the entering of the order of appeal.

The trial court was correct in finding that it had been divested of jurisdiction with respect to Count I of the indictment (save for certain matters enumerated in LSA-C.Cr.P. Article 916 which are not pertinent to a resolution of the issues presented). However, the trial court incorrectly concluded that it was divested of jurisdiction regarding Counts II and III of the indictment, as no trial of defendant (obviously no appeal was taken) had even been conducted on these counts.

LSA-C.Cr.P. Article 581 provides:

“Art. 581. Expiration of limitations; motion to quash; effect

Upon the expiration of the limitations established by this Chapter, the court shall, upon motion of the defendant, dismiss the indictment. This right of dismissal is waived unless the motion to quash is made prior to trial.
If the indictment is dismissed under this article, there shall be no further prosecution against the defendant for the same or a lesser offense based on the same facts.” (Emphasis ours.)

Defendant waived his right of dismissal, under the provisions of LSA-C.Cr.P. Article 581, with respect to Count I as he filed his motion to quash subsequent to his trial on that count. However, the trial court should have dismissed Counts II and III (and had the jurisdiction to do so) as defendant timely filed his motion to quash with respect to those counts, and the time limitation had expired for the State to bring him to trial on them.

DECREE

IT IS ORDERED, ADJUDGED AND DECREED that the writ of review granted defendant, with respect to Counts II and III of the indictment against him, is hereby made peremptory.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that these two counts of the indictment against the defendant be dismissed.

      . The indictment charged defendant with three violations of LSA-R.S. 14:27 and 14:42(3), alleged to have occurred between October of 1979 and May of 1980.

      . In his application for a writ of review, defendant stated his assignment of error as follows: “The Trial Court erred in denying Jarrell D. Frith’s Motion to Quash the indictment against him.” On April 7, 1983, we denied defendant’s application in part and granted it in part, using the language quoted in the “FACTS” section of this opinion. Subsequently, in his original brief filed in this Court, defendant amended the wording of his assignment of error to read as quoted in the body of this opinion.

      . LSA-C.Cr.P. Article 580 provides:
      “Art. 580. Suspension of time limitations
      When a defendant files a motion to quash or other preliminary plea, the running of the periods of limitation established by Article 578 shall be suspended until the ruling of the court thereon; but in no case shall the state have less than one year añer the ruling to commence the trial.” (Emphasis ours.)
      We note the emphasized language of this article because the trial court’s ruling on defendant’s motion to quash was made on Jan. 19, 1983. Thus, it could be argued that the State has one year from the date of this ruling within which to commence trial of defendant on Counts II and III of the indictment. However, the Official Revision Comment to LSA-C. Cr.P. Article 580 states, in pertinent part, that:
      “It is essential, however, to allow the state a reasonable time after the ruling on the plea to reset the case for trial, especially in cases where the plea is filed when the prescriptive period is about to expire. For this reason, the article allows the state at least one year after the ruling within which to commence the trial.” (Emphasis ours.)
      It is clear from a reading of the Official Revision Comment that the State is allowed one year after the ruling, within which to commence trial, when the ruling on the plea upsets a trial date previously fixed within the applicable time limitations. However, this one-year extension granted the State is inapplicable in situations where the State has simply failed to commence trial prior to the ruling on the motion to quash or other preliminary plea. A finding to the contrary would, in effect, repeal LSA-C.Cr.P. Article 578 and the time limitations for the commencement of trial contained therein.


text:
    STATE of Louisiana, Appellee, v. Jarrell Delano FRITH, Appellant.
    No. CR82-590.
    Court of Appeal of Louisiana, Third Circuit.
    June 29, 1983.
    Writ Denied Oct. 17,1983.

      Paul J. deMahy, St. Martinville, for defendant-appellant.
    J. Phil Haney, Asst. Dist. Atty., New Iberia, for plaintiff-appellee.
    Before FORET, CUTRER and LA-BORDE, JJ.
   FORET, Judge.

Jarrell Delano Frith (defendant) was indicted for three counts of attempted aggravated rape of his six-year-old niece in violation of LSA-R.S. 14:27 and 14:42(3) . Upon motion of the State, the counts were severed and the indictment amended to charge defendant with one count of attempted aggravated rape, alleged to have occurred in October of 1979. Defendant was tried by jury on this count and found guilty on December 11, 1980. From this conviction, defendant appealed to the Louisiana Supreme Court. In State v. Frith, 412 So.2d 1000 (La.1982), defendant’s conviction was reversed and the case remanded to the trial court.

On July 19, 1982, the State began the second trial of defendant on the amended indictment. Prior to trial, in answer to a “MOTION FOR BILL OF PARTICULARS”, the State averred that the offense was committed between October, 1979, and May, 1980. After trial commenced, the State moved to amend the indictment, “... to read the dates of October to May — October of 1979 to May of 1980”. The jury found defendant guilty. At the completion of the pre-sentence investigation, the trial court sentenced defendant to serve thirty years at hard labor. From this conviction, defendant appeals to this Court.

ASSIGNMENTS OF ERROR

1. “THE HONORABLE TRIAL COURT ERRED IN FAILING TO ORDER THE PROSECUTION IN ANSWER TO THE REQUEST FOR BILL OF PARTICULARS TO SPECIFY THE ALLEGED DATE OF THE OFFENSE.”
2. “THE HONORABLE TRIAL COURT ERRED IN ALLOWING EVIDENCE OF ANOTHER CRIME TO PROVE GUILT OF THE CRIME CHARGED.”
3. “THE HONORABLE TRIAL COURT ERRED IN ALLOWING THE PROSECUTION TO AMEND THE INDICTMENT DURING THE TRIAL TO EXPAND THE DATE OF THE INDICTMENT FROM ‘OCTOBER, 1979,’ TO ‘OCTOBER, 1979 TO MAY, 1980’.”

FACTS

The evidence indicates that defendant began living with his sister, Lanell Verret, in October, 1979, at the Catrone Trailer Park in Stephensville. At that time, defendant’s niece (Mrs. Verret’s daughter) was also living there.

Mrs. Verret testified that she was working during October, 1979, and that while she was at work defendant would care for her children. She stated that defendant lived in the trailer, at various times, until May, 1980. During this time, she noticed that the victim was extremely nervous and easily upset. However, it was only after defendant moved out of the trailer that the victim informed her of the alleged offense. Mrs. Verret brought her daughter to a physician in Morgan City and to the coroner of St. Martin Parish, Dr. Kenneth Foumet. She then filed charges against her brother for attempted aggravated rape. Defendant was arrested by the St. Martin Parish Sheriff’s Office in the latter part of May, 1980.

The victim was in the second grade at the time defendant allegedly attempted to rape her. She testified that the offense occurred in October, 1979. She stated that defendant entered her bedroom, removed her clothing, and attempted to have sexual intercourse with her. While he was attempting to do so, the victim told defendant to stop and tried to scream. However, defendant placed his hand over her mouth and threatened to slap her if she did not shut up. When he finally let her go, the victim took a bath and returned to her bedroom. She stated that defendant then entered her bedroom again, told her that her mother was about to come home, and stated that he had been instructed by her mother to do what he did. He also threatened to harm the members of her family if she informed anyone of what had occurred. Because of this, the victim failed to tell her mother about the incident until defendant had moved from the trailer.

The testimony of Dr. Fournet was inconclusive. He stated that his examination of the victim in May of 1980 showed no signs of physical injury or emotional trauma. He explained that the lack of evidence of any injury at all could be attributed to the time interval between the date of his examination and the date of the alleged offense.

Defendant attempted to contradict the State’s evidence by calling four witnesses. Mr. and Mrs. Joe Bullock testified that defendant was living with them from October, 1979 to April, 1980. Mr. and Mrs. Ray Legnon stated that defendant resided with them from April, 1980, until his arrest.

In rebuttal, the State introduced in evidence testimony given by defendant at a prior hearing. In it, defendant admitted that he went to live with his sister on October 15, 1979, and that he, “... stayed there until December 28 and I left”.

ASSIGNMENT OF ERROR NUMBER 1

Defendant contends that the trial court erred in failing to order the prosecution (in answer to his motion for a bill of particulars) to specify the date of the alleged offense. Defendant argues that neither the indictment, nor the bill of particulars, supplied him with adequate information concerning the time and date of the alleged offense to allow him to prepare his defense. As noted above, the bill of particulars and the indictment (as amended) specify that the alleged offense occurred between October, 1979 and May, 1980.

The purpose of a bill of particulars is to provide an accused with sufficient information as to the nature and cause of the offense with which he is charged. LSA-C.Cr.P. Article 484; State v. Naas, 409 So.2d 535 (La.1981), on rehearing, 409 So.2d 542 (La.1981), certiorari denied, 457 U.S. 1119, 102 S.Ct. 2933, 73 L.Ed.2d 1332 (1982). It is now clear that the constitutional provision (LSA-Const. Art. 1, § 13) requiring that a defendant be informed of the nature and cause of the accusation is not to be restricted to mean that he must be so informed by indictment. State v. Gainey, 376 So.2d 1240 (La.1979), and authorities cited therein. However, the State is required, on request for a bill of particulars, to inform the defendant of the essential facts of the offense, charged. State v. Gainey, supra; State v. Durr, 371 So.2d 790 (La.1979).

LSA-C.Cr.P. Article 468 provides:

“Art. 468. Date and time
The date or time of the commission of the offense need not be alleged in the indictment, unless the date or time is essential to the offense.
If the date or time is not essential to the offense, an indictment shall not be held insufficient if it does not state the proper date or time, or if it states the offense to have been committed on a day subsequent to the finding of the indictment, or on an impossible day.
All allegations of the indictment and bill of particulars shall be considered as referring to the same date or time, unless otherwise stated.”

Citing LSA-C.Cr.P. Article 468, State v. Glover, 304 So.2d 348 (La.1974), stated at page 350 that:

“At the outset, it should be noted that the date is not essential to the crime of aggravated rape; therefore, it need not be alleged in the indictment. When the date is not essential to an offense, the indictment shall not be held insufficient if it does not state a proper date.”

Obviously, this reasoning is also applicable to the offense of attempted aggravated rape, and to the information that must be set forth in a bill of particulars.

The victim and witnesses in the instant case were unable to recall the exact date on which the alleged offense occurred. The State did not withhold it, and introduce it at trial to the defendant’s surprise. Rather, the State supplied the defendant with all the available information concerning the date.

It is our opinion that defendant possessed enough information to identify the criminal offense and defend against it. This assignment of error is without merit.

ASSIGNMENT OF ERROR NUMBER 2

Defendant contends that the trial court erred in allowing evidence of other crimes to prove him guilty of the offense with which he was charged.

We see no need for any detailed discussion of this alleged inadmissible “other crimes evidence”, which was given in the form of testimony and a transcribed (and edited) version of a tape recorded statement made by defendant. The testimony was elicited from the prosecution’s witnesses under very determined cross-examination by defendant’s counsel and was responsive to the questions being asked. Defendant -never objected to this testimony and would have been unable to do so successfully under the circumstances. Further, defendant never moved for a mistrial, nor made any request for an admonition, (on the basis of the admission of the testimony) as required by LSA-C.Cr.P. Articles 770, 771 and 775. See also the Official Revision Comments to these articles.

While defendant did object to the admission in evidence of the transcribed (and edited) version of his tape recorded statement on the ground that it contained inadmissible “other crimes evidence”, the trial court overruled the objection. We agree with the trial court’s ruling on this objection. A review of the statement shows that it was concerned with only one offense committed by defendant. Defendant’s version of how the incident occurred, and the date on which it occurred, is at variance with the testimony given by the victim. However, the jury could have properly concluded that the defendant was lying on both of these points, and it could have accepted the victim’s testimony.

We note that the record clearly shows that the State made a very conscientious and successful effort to adduce evidence pertaining only to the offense for which defendant was convicted. There is no merit to this assignment of error.

ASSIGNMENT OF ERROR NUMBER 3

Defendant contends that the trial court erred in allowing the prosecution to amend the indictment, during trial, to expand the date of the alleged offense from “October, 1979” to “October, 1979 to May, 1980”.

LSA-C.Cr.P. Article 487 provides, in pertinent part, that:

“Art. 487. Defective indictment; amendment
A. An indictment that charges an offense in accordance with the provisions of this Title shall not be invalid or insufficient because of any defect or imperfection in, or omission of, any matter of form only, or because of any miswriting, misspelling, or improper English, or because of the use of any sign, symbol, figure, or abbreviation, or because any similar defect, imperfection, omission, or uncertainty exists therein. The court may at any time cause the indictment to be amended in respect to any such formal defect, imperfection, omission, or uncertainty.

If the date or time is not an essential element of the offense charged, a mistake respecting the date on which the offense occurred is only a defect of form, which may be corrected at any time with leave of court. State v. McCoy, 337 So.2d 192 (La.1976); State v. Sharp, 321 So.2d 331 (La.1975).

We have already noted that the date is not an essential element of the crime of attempted aggravated rape. Under the provisions of LSA-C.Cr.P. Article 487, the court may cause an indictment to be amended at any time with respect to a defect of form. Thus, the trial court properly allowed the prosecution to amend the indictment.

LSA-C.Cr.P. Article 489 provides:

“Art. 489. Continuance where amendment prejudicial

If it is shown, oil motion of the defendant, that the defendant has been prejudiced in his defense on the merits by the defect, imperfection, omission, uncertainty, or variance, with respect to which an amendment is made, the court shall grant a continuance for a reasonable time. In determining whether the defendant has been prejudiced in his defense upon the merits, the court shall consider all the circumstances of the case and the entire course of the prosecution. If it becomes necessary to discharge the original jury from further consideration of the case, the trial before a new jury will not constitute double jeopardy.” (Emphasis ours.)

The record shows that defendant objected to the trial court’s ruling, allowing the prosecution to amend .the indictment. However, no motion for a continuance was made by defendant at this time, and the trial continued.

This same set of circumstances was presented in State v. Williams, 347 So.2d 184 (La.1977), which held that:

“When an indictment 'is' amended, unless a defendant moves for a continuance on the ground that he is prejudiced thereby and requires additional time to prepare his defense, he cannot later contend that he was prejudiced by the amendment.”
This assignment of error is without merit.

DECREE

For the reasons assigned, defendant’s conviction is affirmed.

AFFIRMED.

      . The indictment originally stated that the three crimes that defendant was alleged to have committed occurred between October of 1979 and May of 1980.

      . We note that in State v. Frith, 436 So.2d 620 (La.App. 3 Cir.1983), we have made peremptory the writ of review granted upon defendant’s application for such with respect to the other two counts. We have ordered these two counts against defendant dismissed on the basis that the time limitation for bringing defendant to trial on them has expired.

      .The Court concluded that the trial court had committed reversible error in unduly restricting defendant’s voir dire examination of prospective jurors.

      . The victim also testified that defendant inserted his finger into her vagina, while holding her mouth shut.