author: GRISBAUM, Judge.

text:
    Johanna Jackson WHITE, et al. v. Russell MILLER, et al.
    No. 83-CA-634.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 13, 1984.
    Writ Denied May 4, 1984.

      Levy & Levy, Lazard Levy, Joel Levy, Marrero, for plaintiffs-appellants.
    Paul P. Rutledge, Metairie, for defendants-appellees.
    Before BOWES, GRISBAUM and DU-FRESNE, JJ.
   GRISBAUM, Judge.

This appeal involves a suit for damages arising out of an automobile accident which occurred March 27,1982. Suit was filed on April 20, 1983, and thereafter, the defendant filed a peremptory exception pleading prescription. The trial court maintained the exception and dismissed the plaintiffs’ petition. From this judgment, the plaintiffs appeal. We affirm.

The issue is whether prescription was interrupted by acknowledgment on the part of Hartford Insurance Company pursuant to article 3520 of the Louisiana Civil Code.

The plaintiffs retained counsel as early as November 17, 1982 in order to recover damages for injuries sustained as a result of the accident. Plaintiffs’ counsel and Tara B. Huguet, the claims adjuster for the defendant insurer, the Hartford Insurance Company, communicated both verbally and in writing during the year following the accident. The record reflects a letter was admitted into evidence dated November 17, 1982 written by Ms. Huguet and addressed to plaintiffs’ counsel requesting medical reports offering to settle the claims of Melvin for $150, Timothy for $50, Gwen for $1500, and Johanna for $2000. Also admitted into evidence are four settlement checks issued by Ms. Huguet to the plaintiffs in the above-stated amounts and respective releases. By correspondence on March 9, 1983, the plaintiffs’ itemized damages, along with supporting documentations, were mailed to Ms. Huguet who testified she received them on March 14, 1983. Thereafter, a telephone conversation between plaintiffs’ counsel and Ms. Huguet took place in which Ms. Huguet, according to her own testimony, told plaintiffs’ counsel she had received his letter, the file was being requested from storage, and she would review the file when it arrived. She further testified she told plaintiffs’ counsel she would locate the file and call him. Subsequently, on April 6, 1983, plaintiffs’ counsel telephoned Ms. Huguet whereupon she advised him the claim had prescribed. The checks were never cashed.

The plaintiffs claim prescription has been interrupted by an acknowledgment on the part of Hartford Insurance Company of the plaintiffs’ right to recover damages in that Hartford’s claim adjuster, Ms. Huguet, made payment on the debt due in sending the four checks. Additionally, the plaintiffs claim Ms. Huguet acknowledged the debt by admitting Hartford’s liability in the communications between the parties during the year following the accident. The defendant contends the communications were merely negotiations to settle a dispute outside of court and did not constitute an admission of liability nor any other form of acknowledgment of the plaintiffs’ right to be compensated.

Louisiana Civil Code article 3520 which governs the issue in this case provides:

Prescription ceases likewise to run whenever the debtor, or possessor, make acknowledgment of the right of the person whose title they prescribed.

In Flowers v. United States Fidelity & Guaranty Company, 381 So.2d 378 (La.1980), the Supreme Court in dicta stated the acknowledgment with the interruptive effect may be express or tacit. The court listed specific acts that may be considered tacit acknowledgment:

Accordingly, this court has stated that acknowledgment sufficient to interrupt prescription may be made verbally, in writing, by partial payment, by payment of interest or by pledge, or in other ways; and that it may be inferred from the facts and circumstances. Lake Providence Equipment Company v. Tallulah Prod. Cred. Assn., [257 La. 104] 241 So.2d 506 (1970).

The Flowers court held evidence in that case did not disclose the defendant insurance company ever admitted owing the plaintiff damages for her personal injuries. Likewise, in the instant case, if Hartford’s statements and actions do not manifest an intention to admit the company’s indebtedness to the plaintiffs, there has been no acknowledgment.

We find the correspondence between Ms. Huguet and plaintiffs’ counsel do not manifest an intention to admit the company’s liability but consisted of nothing more than negotiations to compromise and settle the plaintiffs’ claims. Ms. Huguet’s affidavit indicates that in none of her letters to the plaintiffs’ counsel did she acknowledge an indebtedness to the claimants, but she merely requested information and ultimately made an offer to compromise and settle the claims as indicated by offers made in her letter of November 17, 1982. At trial Ms. Huguet testified she did not at any time indicate to plaintiffs’ counsel in her discussions with him that she intended to waive prescription on the plaintiffs’ claim. The plaintiffs’. counsel had ample opportunity to cross-examine Ms. Huguet, and in none of his cross-examinations of her did he attack these statements or elicit testimony from her which would indicate their discussions were other than negotiations and attempts to compromise in order to avoid litigation.

In Trainer v. Aycock Welding Company, 421 So.2d 416, at 418 (La.App. 1st Cir.1982), the court held negotiations between the accident victims’ attorney and an insurance company’s claims examiner did not result in an acknowledgment such as would interrupt prescription throughout the one-year prescriptive period of article 3536 of the Louisiana Civil Code. The Trainer court stated:

It has long been the public policy of this. state that the compromise of disputes are highly favored and promote judicial efficiency. La.C.C. art. 3071 et seq; Richard v. Southern Farm Bureau Casualty Insurance Company, 254 La. 429, 223 So.2d 858 (1969)... Candid and good faith settlement negotiations should be encouraged between the parties to a dispute to implement this policy. If settlement negotiations which do not result in an oral compromise agreement can constitute an acknowledgment of the disputed indebtedness so as to interrupt prescription, then undoubtedly in the future such negotiations will be less candid and less productive. We do not believe that the law should be interpreted to place such a chilling effect on settlement negotiations. The ruling of the trial court that the negotiations between the parties did not result in an acknowledgment is correct. Trainer, supra.

In the instant case, the evidence amply demonstrates issuance of the checks by Hartford constituted an offer to compromise, not an admission of liability. Ms. Huguet’s testimony to this effect was largely unrefuted. Moreover, the amount of the debt owing to the plaintiffs was at all times in dispute, and the checks sent to them were never cashed. Therefore, we find the plaintiffs have failed to prove an acknowledgment of a debt sufficient to interrupt prescription.

For the reasons assigned, the judgment of the trial court is affirmed, and all costs of this appeal are assessed against the appellants.

AFFIRMED.


source: Caselaw Access Project

license: Public Domain

text:
    Barry D. LeBLANC v. GIBBENS POOLS, INC.
    No. 83-CA-619.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 13, 1984.
    Rehearing Denied April 17, 1984.
    Writ Denied May 25, 1984.

      Warren G. DeAgano, Jr., New Orleans, for plaintiff-appellee.
    Post, Reinhardt & Rougelot, John M. Garic, Metairie, for defendant-appellant.
    Before BOWES, GRISBAUM and DU-FRESNE, JJ.
   GRISBAUM, Judge.

This appeal arises from a dispute involving the construction of a swimming pool. The trial court found in favor of Barry D. LeBlanc, buyer-homeowner, and against Gibbens, Inc., the swimming pool contractor, in the amount of $7500. In addition, the trial court awarded $150 for an expert fee and $1500 for attorney fees. From this judgment, Gibbens Pools, Inc. suspensively appeals. We affirm.

There are three issues:

(1) Was there a breach of the contract?

(2) Did the trial court abuse its discretion in its award of damages?

(3) Did the trial court commit error in not granting a hearing on a motion for a new trial?

Barry D. LeBlanc contracted with Gib-bens Pools, Inc. to build a pool eight feet in depth. A provision of the contract includes a clause which allowed Gibbens Pools to stop excavation at six feet if a “serious cave-in” is eminent. Gibbens Pools constructed a pool with a depth of six feet, 10 inches.

Gibbens Pools contends it did not breach its contract to build an eight foot pool because the contract’s limitation clause is applicable. The pertinent provision states:

Due to soil conditions in some limited areas, Gibbens Pools, Inc. has the option to stop excavation at six feet in the deep end in the event a serious cave-in is eminent. If the before mentioned occurs buyers with depths over six feet in contract will receive liquidated damages from Gibbens Pools, Inc. in the amount of $150 plus cost of diving board if in contract.

The record reflects on April 26, 1982, Gibbens Pools began excavation. Mr. Gib-bens testified on that date a foot of water was in the yard behind the LeBlanc home. According to Gibbens, as digging of the pool continued, water began rushing into the pool cavity. He further explained he put shells in the bottom of the pool to hold the weight of the pool down and to keep the bottom from coming up. He testified he told Mr. LeBlanc several times his company would not be able to construct the pool with an eight foot depth. In addition, Mr. and Mrs. LeBlanc admitted the hole was “mucky.” Mrs. LeBlanc described what she saw in the hole as appearing like “mud, mucky mud,” “like clay.”

The LeBlancs’ expert in construction of pools, John A. Tedesco, testified he constructed a pool across the street from the LeBlancs with no difficulties. He also stated his company had constructed pools near the LeBlanc home with no difficulties as to the depth. He further stated he had never stopped excavation of a pool nor had he ever not met the depth required by the contract. It was his opinion if an excavation problem related to depth occurs, it could be remedied by an application of additional concrete to the hole; however, he admitted he had pool walls which had fallen in.

In order to determine whether there was a breach of this contract, the trial court was called upon to consider whether the conditions were present which allowed the performance of the obligation of building a six foot pool. If a cave-in was eminent, the contractor could fulfill its obligation to do by building a six foot pool at his option.

After hearing testimony and allowing post-trial memorandum to be filed, the trial court concluded the special limitation clause of the contract did not apply. In its reasons for judgment, the trial court stated:

The defense witness, Mr. Gibbens, testified that after he had dug to a depth of nine feet, he decided to stop because it would be impractical to go deeper since the walls would force the bottom of the pool up. This testimony did not satisfy the court of an eminent serious cave-in which would have allowed him to stop at his option and pay liquidated damages of $150.

Because the trial court made the factual determination that a cave-in was not eminent, the limitation clause allowing construction of a six foot instead of an agreed upon eight foot pool did not apply. Consequently, the court found a breach of the contract, and in accordance with statutory authority, the plaintiff was entitled to damages under article 1926 et seq. of our Civil Code. We recognize the trial court is in a better position to evaluate live witnesses. We further recognize the proper allocation of trial and appellate functions; therefore, this court will not disturb this finding in the absence of manifest error. Canter v. Koehring Company, 283 So.2d 716, 724 (La.1973). We find no manifest error in the trial court’s finding.

Addressing the second issue of whether the trial court abused its discretion in its award for damages, we note Mr. Tedeseo’s calculations as to the amount required to repair the pool to a depth of eight feet. He provided a figure of approximately $17,000. In contrast, when Mr. Gibbens was asked the cost to repair the LeBlanes’ pool, he estimated the costs of repair to be $3500 with a 12 percent profit and a 10 percent overhead. The court concluded LeBlanc was entitled to damages for breach of contract in the amount of $7500 and stated:

There was extremely divirgent estimates as to the cost of correcting the depth of the pool varying from $3500 plus 12 percent to $17,100 plus 40 percent profit and overhead.

Our Louisiana Civil Code article 1934 is applicable to damages for breach of contract. It provides in part: “Where the object of the contract is any thing but the payment of money, the damages due to the creditor for its breach are the amount of the loss he has sustained, and the profit of which he has been deprived...” The article continues in part by stating in § 1: “When the debtor has been guilty of no fraud or bad faith he is liable only for such damages as were contemplated or may reasonably be supposed to have entered into the contemplation of the parties at the time of the contract_” (Emphasis added)

Our Louisiana Supreme Court has addressed the question of damages in a contract case and has stated in Hall v. Arkansas-Louisiana Gas Co., 368 So.2d 984, 991 (La.1979):

Actual damages arising from a breach of contract must be proven; they cannot be merely speculative or conjectural.... It must appear reasonably certain that the amount of damages rest upon a certain basis.... The sufficiency of proof of damages must be determined in relation to the particular contract at issue and the circumstances surrounding its breach. The question of the certainty of proof of damages becomes a matter for decision in each individual case.... (Emphasis added.)

In addition a minimal degree of detail or specificity is required in fixing damages. See Campbell v. Lelong Trust, 327 So.2d 533, 536 (La.App. 2d Cir.1976).

We find the trial court had more than a minimal degree of detail or specificity to estimate the damages. It had two different but substantiated estimates. The trial judge stated in his reasons for judgment “the plaintiff had numerous other complaints, the costs of which were not proven to the satisfaction of the court.” It is evident that the court discounted certain items of plaintiff’s estimate. Therefore, the trial court’s determination was not conjectural, and consequently, it did not abuse its discretion in its award for damages.

In reference to the issue of whether the trial court abused its discretion in not granting a hearing on a motion for a new trial, our Code of Civil Procedure article 1971 states:

A new trial may be granted, upon contradictory motion of any party or by the court on its own motion, to all or any of the parties and on all or part of the issues, or for reargument only. If a new trial is granted as to less than all parties or issues, the judgment may be held in abeyance as to all parties and issues.

In addition, article 1976 of our Code of Civil Procedure states that notice of a motion for a new trial and the time and place assigned for its hearing must be served upon the opposing party as provided by in article 1314 of our Code of Civil Procedure.

The Louisiana Supreme Court in Sonnier v. Liberty Mutual Insurance Co., 248 So.2d 299, 302 (La.1971) interpreted these two articles as not changing the previous codal authority which did not require a hearing for a motion for a new trial. We further note the case of Gervais v. Falgoust, 285 So.2d 583, 587 (La.App. 4th Cir. 1973) which held a trial court could grant a new trial without a contradictory hearing if it was convinced by the motion that the party is entitled thereto. Therefore, we find the trial court did not abuse its discretion in not granting a hearing on the motion for a new trial.

Other issues have been raised which we find are not relevant.

For the reasons assigned, we affirm the judgment of the trial court. All costs of this appeal are to be assessed against Gib-bens Pools.

AFFIRMED.


author: GAUDIN, Judge. GRISBAUM, Judge,

text:
    Israel Angus PASSMAN, et al. v. COMMON MARKET EMPLOYEE BENEFIT ASSOCIATION, et al.
    No. 5-310.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 13, 1984.

      John M. Crum, Jr., Carol R. Welch, La-Place, for defendant-appellant.
    William P. Golden, Jr., LaPlace, for plaintiff-appellee.
    Before BOUTALL, KLIEBERT, BOWES, GAUDIN and GRISBAUM, JJ.
   GAUDIN, Judge.

This appeal from the 29th Judicial District Court concerns the duty of care owed by an employer to its employees with regard to the securing of a group medical insurance plan.

Judgment in the amount of $6,392.00 was rendered in favor of the deceased employee’s surviving husband, Israel Passman, and against Mrs. Passman’s employer, Schwegmann Brothers Giant Supermarkets, Inc., because a Schwegmann executive, according to the trial judge, had not exercised due care in recommending an out-of-state company that later went into receivership and was unable to fully satisfy the Passman claim'.

On appeal, Schwegmann contends (1) that the executive in question did act with due care and that he was in good faith and (2) that Schwegmann can’t be held responsible for the company’s subsequent insolvency.

For reasons following, we find no breach of duty on Schwegmann’s part, and we set aside the judgment in appellee’s favor.

FACTUAL BACKGROUND

In September of 1976, Schwegmann was notified that Blue Cross was cancelling its group medical policy effective November 1, 1976. With time of the essence, Joseph Warnke, Director of Personnel, was given responsibility for finding a replacement company.

Warnke consulted Schwegmann’s comptroller vice president, who told him about a hospitalization plan described “... in correspondence that he (the comptroller) got from the Louisiana Retail Food Dealers Association...” Warnke then contacted the association, and was referred to Common Market Benefit Association, a company domiciled in Phoenix, Arizona. Warnke said he contacted a friend in the insurance business and was advised that Common Market was a relatively new company with no apparent problems.

At Warnke’s request, Common Market sent a representative to Louisiana and he presented Common Market’s hospitalization plan to Warnke, who then offered it to Schwegmann employees.

There was no obligation to join, but if an employee did sign up, Schwegmann would deduct premiums from paychecks and provide forms if a claim was to be made. Schwegmann did not receive a fee for these services.

Mrs. Passman did join the plan. In January of 1977, she was diagnosed as having cancer of the pancreas and she died shortly thereafter. Before becoming insolvent, Common Market paid the $3,000.00 death benefit claim and offered an additional $2,000.00, which was rejected. This litigation ensued.

THE FEDERAL ACT

In his “Reasons for Judgment,” the trial judge concluded that Schwegmann’s “... duty of due care was not met...” and noted that Warnke had not sought an opinion from the Louisiana Insurance Commission before recommending Common Market.

Mrs. Mary Robinson, a 25-year employee and the general counsel of the Insurance Commission, testified at the trial that had Warnke called her office, he would have been told that Common Market and similar self-funding companies were formed in accord with the Employee Retirement Income Security Act of 1974. Under this federal act, Common Market received funds from the United States government; and in 1976, claims were being processed and paid from the initial federal deposit and from collected premiums.

While Mrs. Robinson could have advised Warnke that Common Market had no statutorily-established reserve to pay claims and had no registered agent in Louisiana for service of process, she was in no position then to know that Common Market and similar companies would not last.

Mrs. Robinson stated that companies formed under the federal act were now (at time of trial) a bad risk. She was asked, however, about the status of these companies in November and December of 1976.

She replied:

“Five years ago, I am not sure because the track record was not that bad ... they were still using the federal funds and had plenty money to operate.”

The record is devoid of even a suggestion that Warnke in 1976, no matter how diligent, could have uncovered a clue or warning about Common Market’s eventual collapse.

STANDARD OF CARE

The trial judge in his “Reasons for Judgment” and appellee in his brief cite Neider v. Continental Assur. Co., 213 La. 621, 35 So.2d 237 (1948), and Woodard v. Prudential Insurance Company of America, 350 So.2d 948 (La.App. 2nd Cir.1977).

Although these cases (and the others referred to by appellee) are concerned mostly with employers acting negligently as agents for insurance companies, this wording in Neider is significant:

“... the employer owes to the employee the duty of good faith and due care in attending to the policy...”

The trial judge properly applied a like standard of care to Schwegmann in the obtaining of the group plan. In imposing such a standard, the prime considerations are the conditions and circumstances as they were in September, 1976, when Blue Cross gave short notice that it was terminating coverage as of November 1st. This standard cannot be influenced by Common Market’s eventual failure.

Warnke understandably contacted the Louisiana Retail Food Dealers Association, which referred him to Common Market. While a call to the Insurance Commission would have revealed that federally-established and federally-funded companies had no statutorily-established reserve, how was he to suspect that the initial funds and collected premiums would ultimately be inadequate to satisfy claims? These companies were established and funded by the United States government, supposedly under federal supervision and approval.

We are of the opinion that the trial judge erred in deciding that Warnke did not use due care.

HOLDING

We hold that an employer does not breach the duty of care owed to its employees by recommending a federally-established and federally-funded company that apparently is functioning well and paying its claims from the original deposit and from collected premiums, notwithstanding the fact that the company has no statutorily-set reserve and no registered agent for service of process.

Accordingly, we reverse the appealed-from decree of the 29th Judicial District Court and render judgment in favor of Schwegmann and against appellee.

REVERSED.

GRISBAUM, J., dissents.

GRISBAUM, Judge,

dissenting.

I dissent.


author: GAUDIN, Judge.

text:
    STATE of Louisiana v. Scott LANDECHE.
    No. 83-KA-565.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 13, 1984.
    Daniel E. Becnel, Jr., Reserve, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara B. Rutledge, Asst. Atty. Gen., Harry J. Morel, Jr., Dist. Atty., Kurt F. Sins, Gregory C. Champagne, Asst. Dist. Attys., for plaintiff-appellee.
    Before CHEHARDY, BOWES and GAU-DIN, JJ.
   GAUDIN, Judge.

The primary issue involved in this appeal is whether a person can be convicted under LSA-R.S. 14:98, often referred to as the drunk driving statute, when he operated his vehicle only in a parking lot and not on a public street or highway. For the following reasons, we affirm appellant’s conviction and sentence.

Scott Landeche was tried and convicted in the 29th Judicial District Court, and on appeal he has but one assignment of error, to wit:

“It was error for the trial judge to convict the defendant of violating R.S. 14:98, operating a vehicle while intoxicated, when the State failed to prove the defendant had in fact driven his vehicle on a public road in an intoxicated condition.”

R.S. 14:98 reads, in pertinent part:

“Operating a vehicle while intoxicated is the operating of any motor vehicle, aircraft, vessel or other means of conveyance while under the influence of alcoholic beverages...
“Whoever operates a vehicle while intoxicated is guilty of a crime...”

Appellant admits in his brief that the prosecution proved “... beyond a reasonable doubt that the defendant had been drinking but not that he was operating his vehicle. Defendant’s vehicle never, never entered upon any public highway...”

The State apparently showed, to the trial judge’s satisfaction, that appellant, in an intoxicated condition, had entered his automobile in the parking lot of the Pier 2 lounge and attempted to drive off.

The investigating police officer said:

“When I arrived at that location, I pulled into the parking lot. I pulled up to the front door which was open. And I noticed the defendant, Mr. Landeche, walk out of his — out the front door of the bar. He staggered out the front door of the barroom, got into his vehicle which I later learned — later learned was his, started the car up, and attempted to back out of the driveway, I pulled my car up along side of his car. I got out, stopped his vehicle, ordered him to turn the car off and to get out of the car and approach me. As he approached me, I requested some form of identification. He produced a Louisiana driver’s license in the name of Scott Landeche. I noticed while talking to him that he had a very strong odor of alcoholic beverages on his breath. I also noticed that when Mr. Landeche approached me, approximately twenty feet away from — between his automobile and my police unit, that he had great difficulty standing upright and maneuvering.”

The fact that appellant drove his automobile in the parking lot and not on a public street or highway can sustain a drunk driving conviction, assuming that other necessary elements are proven beyond a reasonable doubt.

In State v. Layssard, 310 So.2d 107 (La.1975), the Supreme Court of Louisiana stated:

“The statute (R.S. 14:98) does not limit the prohibition of drunk driving to highways, and evidence of driving while intoxicated, even in the neighbor’s yard, would constitute some evidence of the offense.” (Underlining provided).

It clearly follows that if an intoxicated driver can be charged for operating a vehicle in a neighbor’s yard, he can be prosecuted for driving in a parking lot open to the general public, at least open to patrons of the barroom.

Appellant also argues on appeal, although not strenuously, that the State did not prove that Mr. Landeche actually entered his auto and tried to drive out of the parking lot. The trial judge’s findings of fact, which were contrary to appellant’s assertions, were well supported by the record and we will not disturb them.

One of appellant’s own witnesses, a male friend named Jody Fremen, was asked: “Did you see Scott drive the car that night? Did you see him get in the ear and start the car and drive or attempt to drive off?”

He replied: “Yes, sir.”

Accordingly, we hold, as in the Layssard case, that a person can be charged and convicted under R.S. 14:98 even if the operation of a motor vehicle was not on a public street or highway.

We affirm the trial judge’s findings that appellant was intoxicated and that he in fact entered his automobile and tried to drive from the parking lot of the Pier 2 lounge, and we affirm Mr. Landeche’s conviction and his sentence, which was six (6) months in parish prison, suspended, and a fine of $500.00.

AFFIRMED.


text:
    Charles E. CLARK v. Juanita STONE.
    No. 83-CA-656.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 13, 1984.

      Wiley J. Beevers, Metairie, for defendant-appellant.
    Neil Levith, Metairie, for plaintiff-appel-lee.
    Before CHEHARDY, CURRAULT and GAUDIN, JJ.
   GAUDIN, Judge.

Appellant Juanita Stone sought to nullify and set aside a final judgment in the 24th Judicial District Court because the judgment was based on promissory notes given for gambling debts. The trial judge maintained an exception of prescription and we affirm.

After suit on the notes was filed, personal service was made on appellant on May 15, 1980 and a default judgment taken on June 6, 1980. Appellant was served personally with a copy of the judgment on July 27, 1980. She did not move for a new trial or lodge an appeal; instead, she waited until May 3, 1983 and filed a petition to annul.

The Code of Civil Procedure states that final judgments can be annulled for vices of form or for vices of substance.

Art. 2002 says that a final judgment shall be annulled for vices of form if rendered:

“(1) Against an incompetent person not represented as required by law;
“(2) Against a defendant who has not been served with process as required by law and who has not entered a general appearance, or against whom a valid judgment by default has not been taken; or
“(3) By a court which does not have jurisdiction over the subject matter of the suit.”

Judgments in violation of Art. 2002 are absolutely null, and an action to annul on these grounds may be brought at any time. While appellant does not contend that she fits under Art. 2002 as written, she does argue that the judgment is contra bonos mores — against good morals — and should be annulled for that reason.

Art. 2002, however, is exclusive of other grounds. See Webb v. Polk Chevrolet, Inc., 415 So.2d 402 (La.App. 1st Cir.1982); also, Warner v. Garrett, 268 So.2d 92 (La.App. 1st Cir.1972), writs denied at 270 So.2d 123.

Art. 2004 deals with judgments that are relatively null and reads:

“A final judgment obtained by fraud or ill practices may be annulled.
“An action to annul a judgment on these grounds must be brought within one year of the discovery by the plaintiff in the nullity action of the fraud or ill practices.”

Even if the instant judgment was obtained by “fraud or ill practices,” the action to annul was not timely filed. Appellant received personal notice of both the suit and the subsequent judgment. A judgment debtor rule was filed on August 19, 1980 and personally served on August 27, 1980, and appellant appeared for the rule on September 9, 1980.

Art. 2004 gave appellant one year from discovery of the fraud or ill practices in which to institute a suit to annul, and clearly more than a year passed from “discovery” until May 3, 1983.

Accordingly, we affirm the trial judge’s maintaining the exception of prescription, with appellant to pay all costs.

AFFIRMED.


text:
    Albert Joseph HENRY v. ALLIED INDUSTRIAL SERVICES, INC. et al.
    No. 83-CA-675.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 13, 1984.
    Robert R. Faucheux, Jr., Reserve, for plaintiff-appellee.
    Stephen L. Williamson, New Orleans, for defendants-appellees.
    Before BOUTALL, CHEHARDY and GAUDIN, JJ.
   GAUDIN, Judge.

Appellants are Allied Industrial Services, Inc. and its insurance carrier, contending that a May 19, 1983 judgment of the 29th Judicial District Court requiring them to pay 100 weeks of workmen’s compensation to Albert J. Henry was not supported by the testimony and evidence. We agree, and reduce the award to ten weeks.

Mr. Henry was employed by Allied Industrial Service for approximately two months in 1979 when he complained of a skin condition, contact dermatitis. Because he had worked for this employer for less than one year, he was required by LSA-R.S. 23:1031.1(D) to show by an overwhelming preponderance of the evidence that the contraction of his dermatosis occurred during his two-month employment and that he was subsequently disabled by this occupational disease and therefore entitled to extended workmen’s compensation payments.

The evidence did not substantiate either of these possibilities. The medical testimony, particularly that of the treating dermatologist, Dr. Jack P. Murphy, showed (1) that Mr. Henry had suffered from contact dermatitis long before he went to work for Allied Industrial Services and (2) that his period of disability, following the flareup of the disease while at Allied Industrial Services, lasted only a short time.

Mr. Henry had worked at a lumber mill for many years prior to going to Allied Industrial Services, and Dr. Murphy was asked if Mr. Henry had mentioned skin problems related to the lumber company. Dr. Murphy replied:

“He stated that he had had rashes since he worked at the lumber mill.”

Another physician, Dr. Remy F. Gross, treated Mr. Henry from September, 1974 to August, 1979 for dermatological conditions.

Nonetheless, Mr. Henry’s contact dermatitis did break out again during his Allied Industrial Services employment and he is entitled to some benefits. The aggravation of a condition is compensable, in accord with Self v. Riverside Companies, Inc., 382 So.2d 1037 (La.App. 2nd Cir.1980), writs denied at 385 So.2d 793, and many similar cases.

Dr. Murphy said that Mr. Henry is allergic to things found in lumber yards and at Allied Industrial Services, such as uncured or “oozing” wood and certain kinds of metals, including nickel. The doctor noted that “... as a laborer, he is going to have that problem all his life...,” and added:

“There’s no cure. Occasionally you may see a patient 50 years later and test them, and they won’t be allergic, but that’s probably an immune system change, and really has little clinical applications. For all practical purposes, he’s allergic to these things for the rest of his life.”

On appeal, Mr. Henry’s main contention is that a trial judge’s findings in a workmen’s compensation should not be changed unless manifestly erroneous. Appellant cites Clay v. Bituminous Coal Corp., 401 So.2d 1257 (La.App. 1st Cir.1981), writs denied at 409 So.2d 616; Harris v. Louisiana-Pacific Corp., 420 So.2d 1220 (La.App. 3rd Cir.1982), and several other decisions with synonymous holdings. However, we have carefully considered Mr. Henry’s testimony along with the medical evidence, and the record does not support a period of disability, because of the manifestation of contact dematitis while appellant was at Allied Industrial Services, of more than ten weeks. Mr. Henry was employed elsewhere within this period of time, and he said that he worked the following year without missing any days because of his allergy. •

For these reasons, the appealed-from judgment is amended to award workmen’s compensation for ten weeks. In all other aspects, the district court decree is affirmed.

AMENDED AND AFFIRMED.


text:
    Joycelyn M. Jones, wife of Hurie JONES v. JEFFERSON PARISH SCHOOL BOARD.
    No. 83-CA-661.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 13, 1984.
    Writ Denied May 25, 1984.

      Jack A. Grant, Grant & Barrow, Gretna, for defendant-appellee.
    Joycelyn M. Jones and Hurie Jones in personam.
    Before CHEHARDY, CURRAULT and GAUDIN, JJ.
   GAUDIN, Judge.

Appellants are Mr. and Mrs. Hurie Jones, whose petition in the 24th Judicial District Court was dismissed via the trial judge’s maintaining exceptions of res judicata and prescription. On appeal, Mr. and Mrs. Jones contend that the appraised exceptions were “... absolutely without any merit...” and should not have been sustained.

Mr. and Mrs. Jones had been school teachers in the Jefferson Parish system. They were terminated by the school board in 1981 for alleged neglect of duty and incompetency.

After carefully reviewing the record, we are of the opinion that the trial judge was correct in maintaining the exception of res judicata, and we affirm his dismissal of the suit.

Originally, appellants filed suit in the United States District Court, Eastern District of Louisiana, alleging violation of various civil and constitutionally-guaranteed rights. After a full trial, appellants’ suit was dismissed, judgment in case numbered 81-3563 being signed on December 21, 1981.

An appeal to the United States Court of Appeals for the Fifth Circuit was similarly unsuccessful, the Fifth Circuit’s four-page opinion, numbered 81-3601 and dated September 17, 1982, being attached to and part of the exceptions filed by the Jefferson Parish School Board in the instant case. Writs to the United States Supreme Court were denied.

Mr. and Mrs. Jones filed the 24th Judicial District suit on May 31, 1983, saying that they were duly certified and tenured teachers and that the school board owed them $4,600,000.00 for denial of their rights. They asked that the 24th Judicial District Court:

“... accept and review, in making its judicial determination(s), the complete transcripts of the trial court’s proceeding in the Federal District Court ... and review all of petitioners’ briefs and jurisdictional statements on appeal submitted to the United States Court of Appeals for the Fifth Circuit and to the United States Supreme Court.”

The actions by the school board complained of in the current petition were considered by the federal courts, which concluded that the terminations by the school board were “... for wilful neglect of duty and incompetency, and not for any improper reason.”

LSA-C.C. art. 2286 deals with the essential elements'of res judicata, to wit:

“The authority of the thing adjudged takes place only with respect to what was the object of the judgment. The thing demanded must be the same; the demand must be founded on the same cause of action; the demand must be between the same parties, and formed by them against each other in the same quality.”

A final judgment in the federal system can form the basis of a res judicata plea in state court. See Swope v. St. Mary Parish School Board, 256 La. 1110, 241 So.2d 238 (1970); and Reaux v. Iberia Parish Police Jury, 411 So.2d 727 (La.App. 3rd Cir.1982).

Here, the plaintiffs and defendant are the same as in the federal case, the demand — i.e., the things complained of— are exactly alike and everything else concerning the 24th Judicial District Court petition is synonymous with the substance of and the issues raised in the federal court litigation. Accordingly, the exception of res judicata is well founded.

There is no need for us to pass on the exception of prescription, although we note that LSA-R.S. 17:443 gives a terminated tenured teacher one year to “... petition a court of competent jurisdiction for a full hearing to review the action of the school board...” Appellants argue that the federal court suit interrupted prescription.

Regardless, the exception of res judicata was justifiably maintained, and we affirm the trial judge’s dismissal of the suit in the 24th Judicial District Court.

AFFIRMED.

      . From the Fifth Circuit’s opinion.


author: GAUDIN, Judge. BOWES, Judge,

text:
    STATE of Louisiana v. Blaine MEREDITH.
    No. 83-KA-181.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 13, 1984.
    Martha E. Sassone, Staff Appeals Counsel, 24th Judicial District, Indigent Defender Board, Gretna, for appellant.
    John M. Mamoulides, Dist. Atty., P. Michael Cullen, Asst. Dist. Atty., Gretna, Dorothy A. Pendergast, Asst. Dist. Atty., Ken-ner, for appellee.
    Before BOWES, GAUDIN and DU-FRESNE, JJ.
   GAUDIN, Judge.

Appellant is Blaine Meredith, who was sentenced to three years in parish prison for simple burglary and six months in parish prison for attempted theft, the latter sentence to run concurrent with the former. Meredith argues on appeal that the trial judge did not comply with LSA-C. Cr.P. art. 894.1.

Initially, we note that Meredith does not contend that his sentences were constitutionally excessive, which should preclude further consideration.

However, we have examined further, finding:

(1) That the three-year sentence was the result of an intelligently entered into plea bargain in which (a) the trial judge at considerable length explained to Meredith all of his rights and (b) the District Attorney agreed not to multiple bill appellant because of his previous criminal activities;

(2) That Meredith, who had a 10th grade education, indicated that he fully understood the proceeding;

(3) That appellant was advised by the trial judge that although the maximum penalty was 12 years the sentence to be imposed would be only three years; and

(4)-That the trial judge did comply with Art. 894.1, stating, among other things, that “... the defendant is in need of custodial environment as it might help him.”

Paragraph A(2) of Art. 894.1 reads:

“When a defendant has been convicted of a felony or misdemeanor, the court should impose a sentence of imprisonment if:
“(2) The defendant is in need of correctional treatment or a custodial environment that can be provided most effectively by his commitment to an institution.”

Finally, we are mindful of State v. Bell, 412 So.2d 1335 (La. 1982), in which the Supreme Court of Louisiana stated:

“... that where a specific sentence has been agreed to as a consequence of a plea bargain, that sentence cannot be appealed as excessive and there is no need for the trial judge to give reasons for the sentence as required by art. 894.-1.”

We hesitate to say that this appeal is frivolous, as a person’s liberty has been temporarily taken away and Louisiana traditionally favors appeals. However, if ever the adjective fits, this is the case. We affirm the sentences imposed.

AFFIRMED.

BOWES, J., concurs with written reasons.

BOWES, Judge,

concurring.

I concur with the result reached by the majority in this case and would affirm the sentences imposed. I am also of the opinion that this appeal has no merit of any kind whatsoever. However, since a defendant in a criminal case such as this has an absolute right to an appeal under the Louisiana Constitution, I disagree with the language used in the last paragraph of the opinion.


author: CURRAULT, Judge.

text:
    DAUL INSURANCE AGENCY, INC. and Michael B. Daul, Jr. v. PARISH OF JEFFERSON, Gerard Schexnayder, d/b/a Quaid Insurance Agency and Insurance Advisory Committee of the Parish of Jefferson.
    No. 83-CA-628.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 13, 1984.

      Nathan Greenberg, Greenberg & Dallam, Gretna, for plaintiffs-appellants.
    Peter J. Butler, Butler & Heebe, New Orleans, for defendants-appellees.
    Before KLIEBERT, CURRAULT and GAUDIN, JJ.
   CURRAULT, Judge.

This appeal arises from a judgment maintaining an exception of lis pendens filed by defendants, The Parish of Jefferson, Gerard Schexnayder, d/b/a Quaid Insurance Agency and Insurance Advisory Committee of the Parish of Jefferson, in response to an action for declaratory judgment filed by plaintiffs, Daul Insurance Agency, Inc. and Michael B. Daul, Jr.

The pending suit at issue, an action for mandamus, was filed in the Twenty-Fourth Judicial District Court for the Parish of Jefferson on December 23, 1981. That suit entitled “Daul Insurance Agency, Inc. v. Parish of Jefferson, Robert B. Evans, Jr., Lloyd F. Giardina, James E. Lawson, Thomas E. Ward, Kenneth Hollis, Willie Hof and Aaron Broussard,” was assigned No. 261-727 on the docket of that court. Subsequently, Gerard E. Schexnay-der, d/b/a Quaid Insurance Agency, filed a petition for intervention and united with defendants in resisting the demands of Daul Insurance Agency, Inc.

In that action, plaintiff sought a writ of mandamus directing the Parish of Jefferson and its councilmen to prepare specifications and solicit public bids for the furnishing of the Parish’s insurance needs. On January 7, 1982, the court rendered a judgment sustaining an exception of no cause of action filed by the intervenor, Mr. Schex-nayder, and adopted by the defendant, Parish of Jefferson, and dismissed Daul’s claim. Plaintiff appealed from the judgment in Action No. 5-323 before the Louisiana Court of Appeal for the Fifth Circuit. On January 19, 1983, the Fifth Circuit Court affirmed the decision of the trial court, 434 So.2d 118. The plaintiff then filed a writ of certiorari to the Louisiana Supreme Court; and the Supreme Court granted the writ and remanded the case to the Fifth Circuit Court to reconsider its decision in light of the Jefferson Parish Code of Ordinances, 435 So.2d 443. On reconsideration, the Fifth Circuit Court again affirmed the dismissal of the mandamus for no cause of action in a decision rendered on September 13, 1983, 437 So.2d 1205. On or about September 16, 1983, the plaintiff again applied for a writ of certio-rari or review to the Louisiana Supreme Court which was granted. On November 28, 1983, the Supreme Court reversed the decisions of the appellate and trial courts and remanded the case for trial. [441 So.2d 1215].

In the meantime, on December 10, 1982, Daul Insurance Agency, Inc. and Michael B. Daul, Jr. filed a petition for declaratory judgment against the Parish of Jefferson, Gerard Schexnayder, d/b/a Quaid Insurance Agency, and the Insurance Advisory Committee of Jefferson Parish. The suit was assigned No. 275-323 on the docket. Thereafter, defendant Schexnayder filed an exception of lis pendens on the basis that the previous action for mandamus, then pending in the Louisiana Fifth Circuit Court of Appeal, constituted the same identities and causes of action as the subsequent suit. On June 29, 1983, the trial court granted the exception of lis pendens.

Plaintiffs subsequently perfected this appeal of that judgment dismissing the petition for declaratory judgment, specifying as error that the causes of action alleged in the declaratory judgment suit differ from the causes of action alleged in the mandamus action.

In this regard, appellant submits that the earlier case was a mandamus to the Parish of Jefferson to order preparation of written specifications for the obtaining of public bids for the insurance needs of the Parish, its departments, offices, agencies or special districts, and to disseminate the same to all insurance agents in the Parish of Jefferson desiring to bid thereon competitively.

Appellant asserts that this instant action does not involve any mandamus or summary proceeding; but that it only involves a declaratory judgment action as to the following:

that (A) the insurance contract between Schexnayder, d/b/a Quaid Insurance Agency, and the Parish of Jefferson for a term in excess of one year should be decreed to be null and void; that

(B)the members of the Insurance Advisory Committee of the Parish of Jefferson should be held to be public employees, as was stated by the Ethics Commission of the State of Louisiana in Advisory Opinion No. 81-80; that

(C) the Parish of Jefferson should be held to be the recipient of the 50 percent of the insurance commissions purportedly due by Schexnayder to the members of the Insurance Advisory Committee of the Parish of Jefferson; and that

(D) the Parish of Jefferson should be ordered to prepare written specifications for the obtaining of public bids for the insurance needs of the Parish, its departments, offices, agencies or special districts, and to disseminate the same to all insurance agents in the Parish of Jefferson desiring to bid thereon competitively.

Appellant concludes that the only similarity between this case and the earlier mandamus action relates to the preparation of written specifications for competitive bid under the Public Bid Law and submits that this action is entirely different from the earlier mandamus action brought to compel the preparation of written specifications, at least as to Items (A), (B) and (C) above.

Appellee, however, asserts that both actions involve the same cause of action between the same parties, in the same capacities and having the same object. Thus, under LSA-C.C.P. Article 531, the declaratory judgment action is lis pendens.

LSA-C.C.P. Article 531 provides that, “When two or more suits are pending in a Louisiana court or courts on the same cause of action, between the same parties in the same capacities, and having the same object, the defendant may have all but the first suit dismissed” through an exception of lis pendens. Lis pendens is properly pleaded even if the first suit is pending in the appellate, rather than the trial court. Cardino v. Scroggins, 190 La. 53, 181 So. 810 (La.1938); Scott v. Ware, 160 So.2d 237 (La.App. 2d Cir.1964). Louisiana courts have explained that a court should sustain an exception of lis pendens if it finds that a final judgment rendered in the first suit would be res judicata in the second action. Guedry Finance Company, Inc. v. Sanderson, 348 So.2d 119, 120 (La.App. 4th Cir. 1977). Res judicata requires an identity of parties, an identity of cause and an identity of the thing demanded. LSA-C.C. art. 2286; Doyle v. State Farm Mutual Insurance Company, 414 So.2d 763 (La.1982); Welch v. Crown Zellerbach Corporation, 359 So.2d 154, 156 (La.1978). The exception of Us pendens has the same requirements as res judicata. Slater v. Slater, 336 So.2d 965 (La.App. 4th Cir.1976); Braquet v. Administrators of Tulane Educational Fund, 419 So.2d 30, 32-33 (La.App. 4th Cir.1982).

As the Louisiana Supreme Court explained in R.G. Claitor’s Realty v. Juban, 391 So.2d 394 (La.1980), the proper translation of the phrase “cause of action” in LSA-C.C. article 2286 is “the same cause” and that, in civilian jurisprudence, the term “cause” refers to “the juridical or material fact which is the basis of the right claimed, or the defense pleaded.” See also Mitchell v. Bertolla, 340 So.2d 287 (La.1976).

A comparison of the pleadings herein reveals that, in both actions, appellant asserted the invalidity of the contract dated December 11, 1981 between defendants Jefferson Parish and intervenor Schexnay-der. In both instances, appellant alleges that the contract is illegal because the term exceeds one year; and, further, the contract is illegal in that it violates the Louisiana Public Bid Law, LSA-R.S. Section 38:2211. Clearly these allegations give rise to identical relief. Upon litigation of the mandamus action, the validity of the contract will acquire the status of res judica-ta.

Appellant’s petition for declaratory relief also raises the issue of the legality of split-fee commissions to the Insurance Advisory Board historically provided in these types of contracts by the Parish. In our opinion, those questions are an integral part of the issue of the contract’s validity to be properly decided in the original action for mandamus. Thus, as there is an identity of parties and the cause and thing demanded are identical, the trial court properly granted the exception of lis pendens.

Therefore, after a review of the law and the record, the judgment dismissing the declaratory judgment petition is hereby affirmed. Appellant is to pay all costs of this appeal.

AFFIRMED.


text:
    STATE of Louisiana In the Matter of Rejeanne, Rhonda and Rhondell WILLIAMS.
    No. 83-CA-676.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 13, 1984.
    Writ Denied May 4, 1984.

      Mary Hotard Becnel, Becnel, Landry & Becnel, LaPlace, for plaintiffs-appellees.
    Sylvia Taylor Steib, Reserve, for defendant-appellant.
    Before KLIEBERT, BOWES and CUR-RAULT, JJ.
   CURRAULT, Judge.

This appeal arises from a judgment changing the custody of three minor children, Rejeanne, Rhonda and Rhondell Williams, from the father, Ivory Williams, to the deceased’s wife’s parents, the children’s maternal grandparents, Lucille and Eugene Braud. The judgment further awarded visitation privileges to Ivory Williams.

The wife of Ivory Williams and mother of the three children died on October 11, 1977. Since that time, the children have been in the care and custody of the father, Ivory Williams.

On January 12, 1983, the maternal grandparents filed a petition for custody, alleging lack of adequate supervision by defendant resulting in sexual abuse of the two girls by unknown person(s). An investigation was made by the Department of Health and Human Resources and a report was submitted to the court. Trial was set for April 8, 1983, but was continued to May 2. At that time, the case was again continued and reset for May 25, 1983. On May 25, 1983, newly retained counsel for Ivory Williams requested and received another continuance. Consequently, the case was reset for trial on June 8, 1983, and both counsel were served with notice.

On June 6, 1983, counsel for defendant Williams withdrew; and, on June 8, 1983, counsel for Williams appeared advising of her withdrawal from the case. Neither Mr. Williams nor the children appeared. Nevertheless, the trial proceeded and judgment was rendered on June 21, 1983 in favor of the maternal grandparents, subject to visitation rights of the father, Ivory Williams.

Defendant Williams thereafter perfected this appeal, alleging as error the following:

(1) Whether or not the trial court erred when it awarded custody of the minor children to the maternal grandparents where there was no service on the father or notice of the trial date of June 8, 1983, and where his attorney of record withdrew from the case prior to June 8, 1983; and

(2) Whether or not the trial court erred in finding that the father, Ivory Williams, was unfit and that the children should be removed from his custody.

The first issue raised in appellant’s specification of errors is not argued in brief. Consequently, the court may conclude that the issue has been abandoned under Uniform Rules-Courts of Appeal, Rule 2-12.4.

Appellant asserts in the second issue that the trial court erred in changing custody as the evidence does not support a finding that the father is an unfit parent. We agree, after a review of the law and evidence.

The contest for custody between a parent and nonparent requires the application of more stringent legal principles than solely the best interest test upon which the trial court’s decision was apparently based. Upon the death of one parent, the surviving parent is granted the right to care for and retain custody of minor children. LSA-C.C. Articles 216, 250 and 146. To deprive a natural parent of the right, convincing proof must be established that the parent is unfit or has forfeited parental right to custody by action or omission. LaPointe v. Menard, 412 So.2d 223 (La.App. 3d Cir.1982). The jurisprudence has consistently held that a parent has a paramount right to custody of his or her child and may be deprived of such right only for compelling reasons. Wood v. Beard, 290 So.2d 675 (La.1974); Deville v. LaGrange, 388 So.2d 696 (La.1980); State in the Interest of Simolke, 422 So.2d 196 (La.App. 4th Cir.1982). While great weight is given to the trial court in determining custody, forfeiture of the preferential right to custody must be expressly determined and well supported. Litton v. Lewis, 409 So.2d 1254 (La.App. 2d Cir.1982).

The facts reveal that three children were born of the marriage between Ivory Williams and Enola Braud Williams. The oldest girl, Rejeanne, was born May 7, 1972, and a set of twins, Rhonda, a girl, and Rhondell, a boy, were born August 8, 1975. Mrs. Williams died on October 11, 1977 due to a heart condition. Subsequent to the wife’s death, Mr. Williams cared and provided for the children, utilizing the assistance of his own family members as well as the maternal grandparents who saw the children often. The Department of Health and Human Resources first received a complaint of sexual abuse regarding the younger girl, Rhonda, in August, 1979, from Mr. and Mrs. Braud through attorney Daniel Becnel. The child was treated and returned home with no further reoccurrenc-es until December of 1979. Mr. Williams was advised by the Department that closer supervision of the children was expected. After monitoring the case for several months, good results were noted and the case was closed. Two and a half years later, another complaint was received concerning both girls, now ages nine and seven. The girls were diagnosed as having gonorrhea and were medically treated for this condition. Again, the Department investigated, but the investigation did not reveal the perpetrator nor where the abuse took place. Mr. Williams was absolutely ruled out as a suspect.

The report of the department indicates that Mr. Williams has been cooperating with the Department with follow-up medical treatment, in changing the babysitting arrangement, and for evaluation of the girls at the Norco Mental Health Clinic. Further, according to the report, he took it upon himself to get everyone living in his mother’s household to a health unit for venereal disease cultures. However, due to the confidential nature of the records, the Department was unable to obtain the results.

The Department concluded that Mr. Williams did not commit the act nor did he intentionally expose the children to the acts. The testimony of the social worker was supportive of custody remaining with the father. Although an investigation of the grandparents indicated their ability to also care for the children, the Department did not recommend a change of custody either in its report or testimony since the father was neither determined to be unfit nor unable to care for the children.

Appellees assert, on the other hand, that the custody awarded them should be maintained because of the father’s history of poor supervision of the children which, they allege, has resulted in the sexual abuse of the girls.

A review of the law and the record herein indicates that while sexual abuse may be a compelling reason to change custody, where the facts show as here that the father is innocent and attempting to correct any supervisory problems of the past, it is not appropriate under the law. It is notable that the evidence in this case is particularly nonexistent for a change of custody of the son. Despite the evidence presented by the appellees, the objective party in this case (i.e., the Department social workers) found the children mentally healthy and happy and generally physically fit, and the father a caring parent. Thus, under these facts, we find the grandparents failed in carrying the heavy legal burden of proof required in cases of this nature. Furthermore, while great weight is given to the trial judge in these cases, the trial judge erred herein in failing to apply the proper legal principles as elucidated in Wood, supra, and its progeny in parent versus non-parent custodial dispute.

For the foregoing reasons, therefore, the judgment of the trial court is hereby reversed. All costs of this appeal are to be paid by appellee.

REVERSED.


author: DUFRESNE, Judge.

text:
    STATE of Louisiana v. William J. GUILLORY.
    No. 83-KA-654.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 13, 1984.

      James 0. Manning, Metairie, for defendant-appellant.
    John M. Mamoulides, Dist. Atty., Gerald Alonzo, William C. Credo, III, Elizabeth Gaudin, Asst. Dist. Attys., Gretna, for plaintiff-appellee.
    Before BOUTALL, CHEHARDY and DUFRESNE, JJ.
   DUFRESNE, Judge.

William J. Guillory was charged by Bill of Information in the 24th Judicial District Court with a violation of LSA-R.S. 40:967, “in that he did knowingly and intentionally possess a controlled dangerous substance, to wit: Methaqualone.” Following a waiver of trial by jury, the defendant was tried and convicted of this offense. The trial judge sentenced him to three years at hard labor, suspended the sentence and ordered the defendant to serve six months in the Jefferson Parish Correctional Center.

From this conviction and sentence, the defendant now appeals.

The record discloses the following series of events leading up to the defendant’s arrest and conviction.

On the evening of September 4, 1982, Officer Kenneth Anderson of the Kenner Police Department noticed a blue Mustang driving in a “rather reckless manner”. As the officer pulled in behind the vehicle with his light bar on, the subjects in the car attempted to flee. The deputy gave chase to the speeding Mustang and the vehicle finally pulled over. Officer Anderson ordered the driver, William Guillory out of the car. At this time, an off-duty Kenner police officer, David Holtsclaw passed by, and since Anderson was alone on the scene, Holtsclaw offered his assistance. Anderson placed Guillory, now arrested, in the back of his unit and ordered the juvenile occupant out of the ear. Anderson contemporaneously requested Holtsclaw to secure the Mustang. As Holtsclaw was conducting a brief search of the front seat he noticed a bandana in the dash compartment covering a see-through plastic bag containing an “unknown white substance”. He exited the vehicle and reported the find to Anderson who then recovered both the bandana and the bag of white pills from the Mustang.

Our inspection and review of the record and more particularly, the Crime Lab Report (State Exhibit No. 1) discloses that the pills which were examined by the Jefferson Parish Crime Lab contained diazepam, a schedule IV controlled substance.

The State offered the criminalistics laboratory report as prima facie proof of the content of the pills seized. The receipt portion of the certificate indicates that the Jefferson Parish Crime Lab received seventy-seven (77) LEMMON — 714 white tablets. These tablets, also known as quaaludes, usually contain the chemical methaqualone, a Schedule II controlled dangerous substance. The Bill of Information so charged the defendant and he was prosecuted for the possession of this chemical.

However, the “analysis summary” portion of the certificate (State Exhibit No. 1) reflects that the pills seized contained dia-zepam, a Schedule IV controlled dangerous substance, more commonly known as vali-um.

We consider this an error patent which, even though not raised by the defendant, does prejudice him. In State v. Thomas, 427 So.2d 428, 433-434 (La.1982), the Supreme Court held:

“Because a conviction based on a record devoid of evidence of the crime charged or an essential element thereof is so patently unfair and a denial of due process, it is essential that the error be corrected expeditiously to prevent imprisonment or stigmatization of a legally innocent person. See State v. Raymo, 419 So.2d 858 (La.1982); State v. Morris, 397 So.2d 1237 (La.1981) (on re-hearing); State v. Peoples, 383 So.2d 1006 (La.1980).”

The error in the present case is obvious, appearing not only in the exhibit as pointed out above, but in the transcript as well.

If this error had been noticed on the trial level, the State could have amended the Bill of Information to designate the controlled dangerous substance as Valium, rather than Methaqualone.

Here on the appellate level, we can only review the record as it appears before us. The error before us is not one of a technical nature, but rather one of a very substantive nature.

In supplemental briefs ordered by this court, the State has urged us to consider that the defendant has not been prejudiced by this error since the defendant himself believed the pills to be quaaludes, and only denied having possession of the pills. His main defense was that the pills belonged to the juvenile passenger in his car. We disagree.

Louisiana Constitution 1974, Art. 1 Sect. 13 mandates that the accused be informed of the nature and cause of the charges against him. Further LSA-Code of Criminal Procedure, Art. 464 states in part that the indictment (information) shall be a plain, concise, and definite written statement of the essential facts constituting the offense charged. To charge a defendant with one specific drug and to allow to stand the conviction of another drug would really be absurd. This would establish a precedent that cannot be tolerated.

In this case, all parties participated in perpetuating the patent error of this erroneous charge which is significant enough to warrant reversal of the defendant’s conviction.

The State has further argued that since the defendant was charged with possession of a “controlled dangerous substance” he was sufficiently informed to prepare his defense citing State v. Dowling, 387 So.2d 1165 (La.1980). We, however, must disagree. In Dowling the error was a technical one due to the reclassification by the legislature of Marijuana from a Schedule I controlled dangerous substance to a Schedule II substance. The court held that the defendant, Dowling was adequately informed of the nature of the charges against him, and the technical error did not prejudice him.

Here, however, the defendant, Guil-lory was charged with the possession of Methaqualone. In order to convict, the State must prove beyond a reasonable doubt, that he knowingly and intentionally possessed a substance which was identified as Methaqualone. Since the record discloses that the State has failed to establish that the tablets contained methaqualone, the record is devoid of evidence of an essential element of the charged offense.

The State cannot charge a defendant with possession of one controlled dangerous substance and obtain a conviction by erroneously proving another. Likewise, when a defendant is charged with one type of drug, he cannot be compelled or required to defend himself against all of the named drugs defined as controlled dangerous substances. The charge should list a specific drug and the evidence must establish that this specific drug was present. To require otherwise would violate the defendant’s constitutional rights, as previously discussed.

Since this issue is dispositive of the case before us, we do not consider the assignment of error raised by the defendant here on appeal.

For the reasons assigned, defendant’s conviction for possession of Methaqualone and sentence are reversed and set aside. The case is remanded to the trial court for the State to properly charge the defendant.

CONVICTION AND SENTENCE REVERSED AND SET ASIDE AND CASE REMANDED.


text:
    In re Florence CALONGNE Applying for Medical Panel Review.
    No. 83-CA-663.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 13, 1984.
    Lemle, Kelleher, Kohlmeyer & Matthews, C. William Bradley, Jr., H. Martin Hunley, Jr., New Orleans, for defendant-appellant.
    Bernard E. Burk, Leonard A. Washof-sky, New Orleans, for plaintiff-appellee.
    Before BOUTALL, GRISBAUM and DU-FRESNE, JJ.
   DUFRESNE, Judge.

This is an appeal by Ronnell P. Bernard, M.D., petitioner-appellant, from a judgment denying his petition to have Meyer Kaplan, M.D. removed, because he is not in the same class or specialty, from a medical review panel which is to sit in a malpractice proceeding initiated by Florence Calongne, respondent-appellee.

The sole issue raised here is whether a physician specializing in internal medicine is qualified to be a member of a medical review panel convened pursuant to La.R.S. 40:1299.47, to review allegations of malpractice made against a treating physician who is a general practitioner, practices emergency room medicine, and is in the process of becoming board certified as a specialist in emergency room practice. Because La.R.S. 40:1299.47(C)(3)(e) specifically states that all panelists “shall be from the same class and speciality of practice of health care provider as defendant,” and because the internist at issue here admits that he is not a general practitioner nor has he ever engaged in emergency room practice, we hold that he does not meet the requirements to sit on this medical review panel. We therefore reverse the judgment of the trial court.

It appears from the scant record before us that at about 8 P.M. one evening in June, 1982, Frank Calongne, Jr. had appeared at the emergency room of the hospital which employed Bernard as an emergency room physician. He was complaining of pains in the shoulder and chest. It further appears that Bernard diagnosed the complaint as a pulled muscle and discharged the patient. Later that night, or early the next morning, Frank Calongne died of a heart attack.

In December 1982, Mrs. Calongne filed a medical malpractice claim against Dr. Bernard alleging that he had negligently failed to diagnose the onset of her husband Frank’s fatal heart attack. She nominated Dr. Meyer Kaplan, an internist, to the review panel and Bernard objected. The attorney panel chairman declined to rule on the objection and Bernard petitioned the district court to remove Kaplan from the panel. This petition was denied, and Bernard now appeals.

As stated above, the only issue here is whether Kaplan is of the “same class and speciality” as Bernard as required by La. R.S. 40:1299.47(C)(3)(e). We hold that clearly he is not.

It is stipulated that Kaplan

1.) is a specialist in internal medicine;
2.) recognizes that emergency room practice is a recognized field of specialization; and
3.) has not, nor does he now, practice emergency room medicine, nor is he a general practitioner.

It is further agreed that Bernard is a general practitioner, that he has practiced emergency room medicine since 1977, and that he is now in the process of becoming board certified as an emergency room specialist. Finally, Bernard stated in deposition that he feels himself to be as competent as an average internist in diagnosing early signs of heart attack in an emergency room setting.

Given these facts, it is clear that Kaplan and Bernard share no common “class or speciality” of practice.

Calongne argues, to the contrary, and with seeming merit that because Bernard feels himself as competent as an average internist in an emergency room setting, an internist therefore qualifies for the panel. While it appears that the trial court was persuaded by this reasoning, we nonetheless must reject it for reasons appearing elsewhere in our laws on medical malpractice.

Specifically, La.R.S. 9:2794(A)(1) sets forth the criteria by which medical malpractice is to be shown, as follows:

(1) The degree of knowledge or skill possessed or the degree of care ordinarily exercised by physicians or dentists licensed to practice in the State of Louisiana and actively practicing in a similar community or locale and under similar circumstances; and where the defendant practices in a particular specialty and where the alleged acts of medical negligence raise issues peculiar to the particular medical specialty involved, then the plaintiff has the burden of proving the degree of care ordinarily practiced by physicians or dentists within the involved medical specialty.

We recognize of course, that La.R.S. 9:2794(A)(1) does not appear in the medical review panel statutes. However, La.R.S. 40:1299.47(G) provides it is the duty of the medical review panel to render an expert opinion as to whether or not the defendant acted or failed to act within the “appropriate standards of care”, and La.R.S. 9:2794(A)(1) defines the appropriate standards. These two statutes must necessarily be read together.

In the present case, therefore, it will first be necessary to determine what skill and care is ordinarily exercised, either by a general practitioner in an emergency room setting, or by a physician practicing the specialty of emergency room medicine. As Kaplan is not an expert in either category, he simply does not meet the criteria to sit on this panel.

For the foregoing reasons, the judgment of the trial court is reversed, the petition of Bernard to remove Kaplan from the medical review panel is hereby granted. All cost of this appeal are to be paid by Florence Calongne-Appellee.

REVERSED AND RENDERED


author: BOUTALL, Judge.

text:
    Edward J. SAVOIS, Jr. v. Otis H. TAYLOR, et als.
    No. 83-CA-648.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 13, 1984.
    Michael K. Heltz, Kliebert & Heltz, Gramercy, for Otis H. Taylor, et als., defendant-appellees .
    Martin A. Welp, New Orleans, for Edward J. Savois, Jr., plaintiff-appellant.
    Before BOUTALL, CHEHARDY and DUFRESNE, JJ.
   BOUTALL, Judge.

Edward J. Savois, a lessor, appeals from a judgment holding that the six named defendants did not sign a lease as lessees or accommodation parties, and thus are not personally liable for $2800.00 in unpaid rent under the lease.

In June of 1978, one of the defendants, Lloyd LeBlanc, negotiated with Edward Sa-vois to arrange for the Gramercy Health Club, Inc. of which Mr. LeBlanc was an incorporator, to lease appellant’s building on E. Main Street in Gramercy.

The lease was executed on June 9, 1978. It was to run for 18 months, with rent at $400.00 per month for the first three months, and $450.00 per month thereafter. Appellant testified at trial, and it is undisputed, that the Health Club defaulted on its rent payments in February of 1979, leaving 9 months of unpaid rent, or $4,050.00. The Health Club subsequently left town. Then in July of 1979, appellee Lloyd LeBlanc tendered some $1250.00 to appellant as partial payment of the back due rent, leaving a balance due of $2800.00 under the lease.

The Health Club’s present whereabouts do not appear from the record, and it is presumably defunct. However, after it left Gramercy, it did for a time sublet the building in question for storage. Mr. Savois testified that he received no money from the subletting.

Appellant sued Messrs. Otis H. Taylor, Jr., Kenneth Ellis, Lloyd LeBlanc, Jr., Joseph Lucia, Jr., Carl Monica, and Frank Monica, Jr. whose signatures appear on the Health Club Lease, for the balance of the rent due under the lease.

The trial court denied recovery, finding that the six defendants were not personally bound and reasoning that the six signatures appeared on the lease either as individual shareholders showing acquiescence to the inclusion of the typed property description paragraph on the standard form lease, or to demonstrate their ratification of the action of Kenneth Ellis in binding the corporation, in the absence of a corporate resolution for the same purpose.

The issue before us on appeal is, as stated by appellant, whether the six individuals named above signed the lease in the capacity of lessees or accommodation parties, resulting in their being personally bound for the outstanding $2800.00. We decide that appellees are not personally bound, for the following reasons.

Turning to the lease itself, it is an unfortunate example of the vague and inadvertent effects parties can achieve with a carelessly prepared document. The lease is a standard form which may be purchased from an office supply store. Line 2 lists lessee as “Gramercy Health Club, Inc. herein represented by Kenneth Ellis, as per attached resolution.” There is no resolution attached to the lease. Down below, in part of the blank space provided for a description of the leased property appear the names of the six defendants, typed in, with no indication of the capacity in which the six appear, or the reason for their inclusion.

Farther down, on line 166, below the terms of the lease, the signatures of the six defendants appear, again with no indication of capacity.

Lower, in the blank provided for the surety’s name, “none” has been typed in.

Finally, appellee Kenneth Ellis’ signature appears on the line designated for the lessee’s signature, again with no designation of the capacity in which he signed.

Our task in construing the contract now before us on appeal is guided by the well-established general principle that:

“Contracts must be construed in such a way as to lead to logical conclusions and to give effect to the obvious intention of the parties. They must be interpreted in a common-sense fashion, according to the words of the contract their common and usual significance.” LSA C.C. art. 1946.

Lambert v. Maryland Casualty Co., 418 So.2d 553 at 559 (La.1982).

With this in mind, it is nonetheless apparent on the face of this lease that ambiguities exist and that the intention of the parties might be susceptible of differing interpretations. Well-established rules also exist as to the judicial interpretation of ambiguities in a contract. La.C.C. art. 2276 provides:

“Neither shall parol evidence be admitted against or beyond what is contained in the acts, nor on what may have been said before, or at the time of making them, or since.”

However, case law has created certain exceptions to this rule as follows:

“It has been held that, as between parties to an instrument, parol evidence is admissible and competent to show fraud, mistake, illegality, want or failure of consideration, to explain an existing ambiguity when the explanation sought to be offered is not inconsistent with its written terms.... ” [Citations omitted]

Raymond B. Gautreau v. Modern Finance Co. of Gonzales, Inc., 357 So.2d 871 at 872 (La.App. 1st Cir.1978).

There was testimony at trial from both plaintiff-appellant Savois and defendant-ap-pellee Lloyd LeBlanc as to their understanding of the nature of the obligation which the parties entered into under the lease. Appellee LeBlanc testified that when he signed the lease he did not feel that he was binding himself personally, but rather was acting as representative of the Health Club.

Appellant, on the other hand, referred interchangeably to the Health Club and the six appellees as the lessees throughout his testimony. Interestingly, he testified that appellee LeBlanc tendered him $1250.00 in past due rent in July of 1979, paid by personal check. However the check was not produced at trial.

We believe, as did the trial court, that the key to resolving the issue of the parties intent under the contract is the dangling proviso “... as per attached resolution” which appears on line 2 of the lease after the description of lessee as “Gramercy Health Club herein represented by Kenneth Ellis.... ” Though no resolution was in fact attached, the names of the six incorpo-rators were typed in the next available blank space below. Similarly, the signatures of the six appear at the end of the lease in a large blank space above the space for the signatures of lessor and lessee.

An interpretation other than that which we arrive at, namely, that the six appellees signed the lease to manifest their assent to the action of Kenneth Ellis in binding the newly formed corporation, would be an interpretation inconsistent with the written terms of the lease.

The appellees cannot be held to be lessees because nowhere in the lease are they designated as such, although the parties could easily have modified this form lease to include lessees other than the Gramercy Health Club had this been their intention. The testimony of appellee LeBlanc is thus not inconsistent with the actual terms of the lease, and in our view, his is the most logical explanation of the appearance of the six appellees in the lease.

Additionally, the appellees cannot be held to be sureties for the Health Club because such an interpretation would violate the express terms of the lease wherein the word “none” was typed in the blank provided for the surety’s name. Further, a contract for suretyship must be in writing and the intent to be bound must be expressed. La.C.C. art. 3039; Zinsel Glass & Supply Co., Inc. v. Ragusa, 310 So.2d 688 (La.App. 1st Cir.1975).

We hold, therefore, that appellees are not personally liable for the $2800.00 back due rent under the lease. The Gramercy Health Club, Inc. is solely liable, and appellant must seek recourse against the corporation.

AFFIRMED.


text:
    STATE of Louisiana In the Interest of Leon Antoine JOSEPH.
    No. 83-CA-700.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 13, 1984.
    Richard J. Brazan, Jr., Baton Rouge, for State, plaintiff-appellant.

      Jacqueline A. Campbell, Metairie, curator ad hoc for Myra Joseph, defendant-appel-lee.
    Robert E. Ahrens, Metairie, for Leon Antoine Joseph, defendant-appellee.
    Before BOUTALL, GRISBAUM and DU-FRESNE, JJ.
   BOUTALL, Judge.

The State of Louisiana appeals from a judgment maintaining the declinatory exception of insufficiency of citation and service of process and lack of jurisdiction over the person in an action which it brought for determination of the parental rights of the mother of the child. We affirm.

After hearings on matters relative to child abuse were held in the Juvenile Court for the Parish of Jefferson and an adjudication was made that the child was in need of care, the State brought a petition for termination of parental rights against the mother, Myra Joseph, under the provisions of L.R.S. 13:1602. The State alleged that it had attempted a number of times to effect personal service upon the mother but apparently she was dodging service and prayed for the appointment of an attorney at law as curator ad hoc to represent the mother in the proceedings. Citation and service of process was never had upon the mother, but was effected upon the appointed curator ad hoc who promptly filed the declinatory exception based upon lack of citation and sufficient service upon the mother.

The pertinent sections of R.S. 13:1602 are as follows:

“A. The court of proper jurisdiction upon the filing of the petition for the termination of parental rights shall order a hearing and set the date thereof for the purpose of adjudicating whether the rights of the parent should be terminated. This hearing shall be conducted within not less than two nor more than six weeks.
“B. The parent shall be served personally with the petition and order, giving the parent at least fifteen days notice.
“C. An attorney shall be appointed by the court to represent the sole interest of the child, and an attorney shall be appointed by the court to represent the parent or parents if the court determines that such parent or parents are indigent and unable to employ counsel solely for that reason, in accordance with the Louisiana Code of Civil Procedure, Articles 5091 and 5098.

The trial judge held that the plain wording of Section B thereof required that the parent shall be served personally and that service upon a curator ad hoc was insufficient, concluding that until such service was made upon the parent that there was no personal jurisdiction to proceed to adjudication. In her reasons for judgment the trial judge noted that there was a difference in the requirements of the laws relating to the abandonment proceeding under the provisions of L.R.S. 9:403 and to the termination of parental rights proceeding under L.R.S. 13:1602. In the abandonment proceeding the law specifically sets out the way service may be made and specifically provides for the appointment of an attorney to act for an absent parent. In the termination proceeding, personal service only upon the parent is demanded, and the appointment of an attorney for the parent is solely for the reason of indigency. We agree with the reasons delineated by the trial judge and believe that they are determinative of this issue. The termination of parental rights statutes is a special proceeding and the terms of the statute must be adhered to.

On this appeal, the State presents nothing new that has not been considered by the trial court and in view of the plain wording of L.R.S. 13:1602, we see no necessity to discuss- the matter as to the involvement of the constitutional rights of the parent as to notice, etc.

For the reasons above, the judgment is affirmed.

AFFIRMED.


author: KLIEBERT, Judge.

text:
    Allen ROUYER v. BLUE CROSS OF LOUISIANA, INC. WESTBANK MEDICAL CENTER LIMITED, d/b/a Jo-Ellen Smith Memorial Hospital v. Allen Paul ROUYER and Cheryl Ann Rouyer, in Solido. LOUISIANA HEALTH SERVICE AND INDEMNITY COMPANY v. Allen ROUYER.
    Nos. 83 CA 612 to 83 CA 614.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 13, 1984.
    R. Patrick Vance, Carl D. Rosenblum, Jones, Walker, Waechter, Poitevent, Carr-ere & Denegre, New Orleans, for defendant-appellee.
    Marcella M. Ziifle, Gretna, for plaintiff-appellant.
    Clarence F. Favret, III, Favret, Favret, Demarest & Russo, New Orleans, for plaintiff-appellee.
    Before KLIEBERT, CURRAULT and GAUDIN, JJ.
   KLIEBERT, Judge.

This is a devolutive appeal brought by Allen Rouyer, defendant. He appeals a judgment of the trial court granting a preliminary injunction which prohibits the enforcement of a default judgment rendered against Blue Cross of Louisiana, Inc. The preliminary injunction was prayed for pending the hearing on the merits of an action to annul the default judgment for vices of form and substances under LSA-C. C.P. Articles 2002-2006.

To prevail at a hearing on a motion for a preliminary injunction filed pursuant to LSA-C.C.P. Article 3601, the party requesting same must show irreparable injury and make a prima facie showing he will prevail on the merits of his case. In Re Matter of Kenilworth Ins. Co., 428 So.2d 1187 (La.App. 5th Cir.1983) writ denied, 434 So.2d 1095. In the trial court, Louisiana Health Service and Indemnity Company (LHSIC), d/b/a Blue Cross of Louisiana (hereafter Blue Cross) contended the default judgment is a nullity under LSA-C.C.P. Article 2002 because the defendant, Blue Cross of Louisiana, Inc., is a non-existent corporation which has not been served with process as required by law. It further contends the judgment should be annulled for fraud or ill practices, as defined by LSA-C. C.P. Article 2004 because counsel for defendant had verbally and voluntarily agreed to an extension of time in which to plead. The trial judge concluded Blue Cross made a prima facie showing the default was invalid for vices of form and substance and hence was entitled to the preliminary injunction. For the reasons which follow, we affirm.

In the hospitalization of his daughter, Rouyer incurred medical expenses of $42,-200.00 with the West Bank Medical Center, Limited, d/b/a the Jo Ellen Smith Memorial Hospital. As a federal employee, Rouyer was insured under the Federal Employees Program for specified medical and hospital benefits. By contract with the FEP, the Blue Cross Association and the Blue Shield Association (the providers of the Blue Cross and Blue Shield Plans) agreed to provide the Government Wide Service Benefit Plan authorized by the Federal Employees Health Benefit Act, 5 USA, Section 8901 et seq. On Rouyer’s behalf, the hospital made repeated claims with the insurance provider. Four months after Rouyer’s daughter was discharged from the hospital, the insurance provider paid $14,-825.00 on the claim and denied liability for the remaining claim of $25,206.00.

Pursuant to the plans provisions for administrative review, in April 1981 Rouyer applied for review of the denied portions of the claim. On August 17, 1982, while the reviews were still pending, Rouyer filed, under Docket No. 270-699 of the 24th Judicial District Court, a petition for breach of contract against Blue Cross of Louisiana, Inc. alleged to be an insurance company doing business in Louisiana (without specifying whether it was a foreign or domestic insurance company) for $25,206.60 and asked that the petition be served on Blue Cross of Louisiana, Inc. through the Secretary of State.

Upon being served, the Secretary of State, on August 20, 1982, forwarded a copy of the petition to Mr. Hampden R. White, who was one of the agents for service of process of LHSIC, and to Mr. Jack C. Groner, Senior Vice-President and corporate legal counsel for Blue Cross. On September 9, 1982, counsel for Rouyer moved for and obtained a preliminary default against Blue Cross of Louisiana, Inc.

At the hearing for the preliminary injunction, Mr. Groner testified he had a phone conversation with Ms. Ziifle, Rouyer’s counsel, on September 13, 1982. Although she admits receiving the telephone call, there is substantial dispute between them as to the nature of the conversation. Further, all parties admitted that on September 17, 1982 there was a telephone conversation between Mr. Wellman, who had been retained as counsel for Blue Cross, and Rouyer’s counsel. Mr. Wellman contends he requested and was granted time in which to plead but was unaware a preliminary default had been taken. Ms. Ziifle denies there was a request for an extension of time in which to plead. Rather, she says Mr. Wellman was aware a preliminary default had been taken and stated he would file an answer the following Monday.

On September 28, 1982, which was several days after the Monday Ms. Ziifle contends the answer was to be filed, she confirmed the preliminary default previously taken on September 9, 1982. The default judgment was not served or furnished to Blue Cross or its counsel. Notwithstanding the default judgment, Mr. Wellman filed an answer to the suit on October 6, 1982. Ms. Ziifle admits receiving a copy of same. On December 7, 1982, after all delays for an appeal had expired, Ms. Ziifle wrote to Blue Cross demanding payment of the default judgment. According to them, this letter was their first notice of the default judgment’s existence.

La.C.C.P. Article 2002(2) provides in pertinent part as follows:

“A final judgment shall be annulled if it is rendered:
(2) Against a defendant who has not been served with process as required by law and who has not entered a general appearance, or against whom a valid judgment by default has not been taken;

We consider first the nullity of the default judgment under the quoted article because it was rendered “against a defendant who has not been served with process”.

Blue Cross contends the service made on Blue Cross of Louisiana, Inc. through the Secretary of State was not a valid service. The trial judge concluded and we agree the attempted service on the Secretary of State was invalid. LSA-R.S. 22:985, providing for the appointment of the Secretary of State as an agent for service of process applies only to a foreign insurance company, hence, it is not applicable here. Under LSA-C.C.P. Article 1262, service can be made on the Secretary of State only after diligent effort to first effect service on the corporation in the manner provided in LSA-C.C.P. Article 1261. Here, Rouyer’s counsel made no effort to determine the name of the insuring corporation, nor did she make any effort to effect a service on the corporation’s agent. Had she made such efforts, she would have learned there was no corporation using the name Blue Cross of Louisiana, Inc. Under a factual situation similar to that present here, the Fourth Circuit annulled a default judgment because plaintiff attempted to serve the Secretary of State notwithstanding his personal knowledge of the address of the corporation but made no effort to effect a service on the corporation at that address. Silvestri v. Beaver Productions, Inc., 394 So.2d 836 (La.App. 4th Cir.1981).

As an alternative argument, Rouyer contends the filing of an answer submitted the defendant to the jurisdiction of the court, hence, the failure to effect a valid service is immaterial. The trial judge did not agree nor do we, because an answer filed after the confirmation and entry of a default is of no consequence and has no legal effect. Aswell v. U.S. Fidelity & Guaranty Co., 244 So.2d 243 (La.App. 3rd Cir.1971). Further, even if we considered the answer as a general appearance which “joined issue” retroactively, this would also constitute a bar to the default judgment.

Next we consider the second ground for nullity under LSA-C.C.P. Article 2002(2), i.e., when a valid judgment by default has not been taken.

The trial judge found and we agree with his finding that “Blue Cross of Louisiana, Inc.” is a non-existent corporate entity. However, counsel for Rouyer argues LHSIC, in the eyes of the consumer, is recognized as “Blue Cross of Louisiana” and, hence, an action brought against Blue Cross of Louisiana, Inc. is the same as an action against LHSIC. In support of her position she points to instances where LHSIC made appearances to defend actions brought against an entity referred to as “Blue Cross”. However, the fact LHSIC may have chosen not to contest service under an improper name in other proceedings does not preclude it from contesting it here. In the absence of a default judgment, LHSIC may well have waived the invalid service, but, where as here, it is prevented from defending the suit by a default judgment it is justified in asserting its rights to have the default judgment annulled because obtained without valid service.

Here and in the trial court, counsel for LHSIC argues the default judgment would be invalid for fraud and ill practice as defined in LSA-C.C.P. Article 2004. The trial judge found the facts as to the ill practice were in hopeless confusion and refused to consider this as grounds for nullity. After a careful review of the record, we agree the testimony of each counsel on the crucial question of whether an extension of time to plead was voluntarily granted is diametrically opposed. However, since LHSIC has made a prima facie showing the default judgment is a nullity under the provisions of LSA-C.C.P. Article 2002(2), we need not pass on the question.

For the reasons stated, therefore, the judgment of the lower court is affirmed. All costs of the appeal are to be borne by the appellant.

AFFIRMED.

      . On September 29, 1982, Westbank Medical Center, d/b/a Jo Ellen Smith Memorial Hospital, filed suit under Docket No. 272-475 of the 24th Judicial District Court for the unpaid portion of the hospital bill.