text:
    S. Mark LOVELL and Quinn-L Corporation, Plaintiffs-Appellees, v. HALLELUJAH, INC., et al., Defendants-Appellants.
    No. 83-659.
    Court of Appeal of Louisiana, Third Circuit.
    May 16, 1984.

      Russell L. Dornier and Thomas R. El-kins, Baton Rouge, for defendants-appellants.
    Trimble, Percy, Smith, Wilson, Foote & Walker, J. Michael Percy, Lauve & Hill, Lewis Lauve, Alexandria, for plaintiffs-ap-pellees.
    Before DOMENGEAUX, GUIDRY and DOUCET, JJ.
   GUIDRY, Judge.

This case arises out of a continuing dispute among the partners of Quinn-L Corporation-1974, a Louisiana partnership in com-mendam. On December 10, 1982, S. Mark Lovell and Quinn-L Corporation, the one time general partners of Quinn-L Corporation-1974, filed this suit for damages allegedly incurred as a result of the mismanagement of the partnership. Named as defendants were Quinn-L Corporation-1974, Leonard H. Bossier, L.H. Bossier, Inc., Alexandria Construction Company, and City Partners of 1974, the partners in commen-dam of Quinn-L Corporation-1974; Fither, Inc., alleged by defendants to be a general partner of Quinn-L Corporation-1974; and, Hallelujah, Inc. and Thomas R. Elkins, as agents of certain of the defendants and managers of the partnership property. Quinn-L Corporation additionally sought an award of damages for breach of a lease agreement against Quinn-L Corporation-1974. In their petition, plaintiffs also prayed for judgment, after summary proceedings, declaring the dissolution of the partnership; a liquidation thereof in accordance with LSA-R.S. 12:141 et seq.; appointment of a judicial liquidator; and, an injunction to prevent defendant from further acts of management of the partnership or its property.

After summary proceedings, the trial judge rendered judgment declaring Quinn-L Corporation-1974 dissolved; ordering a liquidation thereof; appointing Mr. Rod Noles as judicial liquidator; restraining the defendants from any further acts of management of the partnership or its property; and, ordering defendants to immediately turn over to the liquidator all books, records, funds and other property belonging to the partnership. Defendants appeal. There was no disposition by the trial court of plaintiffs’ claim for damages which remains to be tried by ordinary proceedings.

FACTS

Quinn-L Corporation-1974, a Louisiana partnership in commendam, was created on February 18, 1974 by execution of an agreement for partnership in commendam, under. the original name of “The Pines Apartments”. The general partners, as designated in the agreement, were: S. Mark Lovell, an individual, and Quinn-L Corporation, a corporation in which S. Mark Lovell was the sole shareholder and principal executive officer. The sole partner in commendam, as designated by the agreement, was City Partners of 1974, a Louisiana ordinary partnership originally composed of two partners: S. Mark Lovell and Quinn-L Corporation. Thereafter, L.H. Bossier, L.H. Bossier, Inc., and Alexandria Construction Company (hereafter collectively the Bossier interest), entered into negotiations with The Pines Apartments for the purpose of investing in the partnership as limited partners.

Pursuant to the negotiations, the general partners, to accommodate the Bossier interest, retained an attorney to examine the partnership and render a comprehensive tax opinion. The partnership agreement was thereafter amended on June 14, 1974, to effect certain changes including renaming the partnership “Quinn-L Corporation-1974”. Once the aforesaid changes had been made to the partnership agreement and approved by the Bossier interest, an amendment, dated June 17,1974, was made admitting the Bossier interest as additional partners in commendam. In conjunction with the amendment admitting the Bossier interest as partners in commendam, S. Mark Lovell sold his 50% partnership interests in the original commendam partner “City Partners of 1974” to Fither, Inc., a corporation owned by Alexandria Construction Company. The articles of partnership of City Partners of 1974 were amended to reflect the admission of Fither, Inc. thereto.

As designated in the partnership agreement, after completion of the June, 1974 amendments, the partnership consisted of two general partners and four commendam partners, as follows:

1. General Partners
a. S. Mark Lovell —an individual;
b. Quinn-L Corporation —a corporation owned by S. Mark Lovell.
2. Commendam Partners
a. Leonard H. Bossier — an individual;
b. L.H. Bossier, Inc. — a corporation owned by Leonard H. Bossier;
c. Alexandria Construction Company — a partnership consisting of L.H. Bossier, Inc. and Tidelands Equipment Company;
d. City Partners of 1974 —a partnership consisting of Quinn-L Corporation and Fither, Inc.

In due course, the partnership built and operated one phase of an apartment complex known as “Tanglewood Terrace” near the city of Pineville, Louisiana. By 1980, Lovell, believing that the partnership had reached the “crossover point” where it would begin to show a paper profit, thereby terminating the tax shelter, proposed a recapitalization plan to the Bossier interest. The Bossier interest rejected this plan. Thereafter, on September 26, 1980, the general partners entered into a buy-sell agreement to sell the property of the partnership to a syndicate of investors which Lovell had organized.

On October 14,1980, the partners in com-mendam, without notice to the general partners, held a meeting whereat the general partners were removed and the limited partners withdrew their power of attorney to sell the real estate of the partnership. On November 11, 1980, the partners in commendam held a second meeting, again without notice to the general partners, at which meeting the articles were further amended to prohibit the sale of property belonging to the partnership without approval of the partners in commendam. On December 3, 1980, a third meeting was allegedly held by the commendam partners, again without notice to the general partners, at which meeting an amendment to the articles of partnership was made by the Bossier interest electing Fither, Inc. as a general partner.

On December 31, 1980, the partners in commendam ■ filed suit seeking injunctive relief prohibiting the sale of “Tanglewood Terrace” to the syndicate organized by Lo-vell. On trial of that matter, the district court rendered judgment enjoining the proposed sale, which judgment was affirmed on appeal by this court. Bossier v. Lovell, 410 So.2d 821 (La.App. 3rd Cir.1982), writ denied, 414 So.2d 376 (La.1982). This court specifically noted that the validity of the limited partners’ removal vote of the general partners was not at issue in that case. Bossier v. Lovell, supra, at 827.

On May 5, 1981, a partnership meeting was held, at which meeting the removal of Mr. Lovell and Quinn-L Corporation as general partners was ratified. Prior notice of this meeting was sent to Lovell who was out of the state at the time. However, Lovell’s father did attend the meeting.

By letter dated July 20, 1982, the attorney for Lovell and Quinn-L Corporation, advised Thomas Elkins that Lovell and Quinn-L Corporation proposed to sell their interests in the partnership to James G.R. Smith for a total cash price of $57,502.00. The letter requested notice to the Bossier interest and gave the other owners a 30 day right of refusal. This letter prompted the filing of civil suit number 124,043, Bossier v. Lovell, docket of the Ninth Judicial District Court, in which the Bossier interest sought injunctive relief against Lovell, Quinn-L Corporation and Smith, enjoining the sale. The district court in that suit granted a temporary restraining order but, on hearing, dissolved the temporary restraining order and denied injunctive relief, finding that the commendam partners had already dissolved the partnership. No appeal was taken from that judgment.

Plaintiffs’ demands in this suit for liquidation and appointment of a judicial liquidator, are based on the finding of the trial judge in civil suit number 124,043, that the partnership was dissolved. Defendants resist plaintiffs’ demands contending that the partnership continues in existence. The trial judge, relying extensively on his reasons for judgment in civil suit number 124,043, which were made a part of this record, after finding no evidence or legal argument produced in the present case to convince him otherwise, held that the simultaneous removal of Lovell and Quinn-L Corporation as general partners dissolved the partnership. Accordingly, the trial court rendered judgment in favor of plaintiffs as afore-stated. Defendants appeal.

The issues on appeal, as framed by defendants, are as follows:

1. Did the commendam partners have the legal right and power to remove the general partners?
2. Did the commendam partners remove S. Mark Lovell and Quinn-L Corporation as general partners?
3. If so, when was the removal of the general partners effective?
4. Does the partnership agreement provide for continued life of the partnership upon removal of the general partners?
5. What was the status of the entities, City Partners of 1974 and Fither, Inc.?

As regards the first two issues, the trial court concluded that the commendam partners had the right and authority to remove S. Mark Lovell and Quinn-L Corporation as general partners and that the latter were in fact removed as general partners. Neither plaintiffs nor defendants take issue with these findings of the trial court. We therefore consider these determinations to be settled and express no opinion in regard thereto.

EFFECT OF REMOVAL OF ALL GENERAL PARTNERS

Accepting, as do all of the parties to this suit, the valid removal of Lovell and Quinn-L Corporation as general partners, the question remains whether their removal effected the dissolution of the partnership either pursuant to the partnership agreement or pursuant to the prevailing civil code articles on partnership. We will assume for now that Lovell and Quinn-L Corporation were the only general partners.

Act 150 of 1980 repealed Articles 2801 through 2840 of Title XI of Book I of the Louisiana Civil Code pertaining to partnership. In their place were substituted Article 2801 through 2848, effective January 1, 1981.

The articles of partnership of Quinn-L Corporation-1974, as amended, were adopted on June 14,1974. Defendants contend that the attempted removal of Lovell and Quinn-L Corporation in October, 1980 was ineffective due to the lack of proper notice. They therefore contend that Lovell and Quinn-L Corporation remained as general partners until the removal was ratified on May 5, 1981, after written notice of the meeting to all partners, at which meeting Lovell was represented by his father. This latter meeting occurred after the effective date of Act 150 of 1980. The trial judge made no finding with regard to the effective date of the removal of Lovell and Quinn-L Corporation. Because we determine that the result is the same under the Louisiana law of partnership as it existed both prior to and after the effective date of Act 150 of 1980, we need not determine the effective date of the removal.

Under the prior law, a Louisiana partnership was dissolved by any change in the relation of the partners. LSA-C.C. Art. 2876 (1870); Comment, Dissolution and Termination of Partnerships, 45 Tulane Law Review 389, at 396 and cases cited therein. Thus, it appears that under the old provisions, the removal of the general partners would result in the dissolution of the partnership.

The new provisions adopted by Act 150 of 1980 substantially changed the law, in that a change in relation of the parties by death, interdiction, expulsion or withdrawal merely terminates the membership of the partner and not the partnership itself. However, even under the new provisions, the reduction of membership in the partnership to one person terminates the partnership. LSA-C.C. Art. 2826. Acts 1980, No. 150, § l, Comment (d) of the official comments to that article explains as follows:

“If membership is reduced to one person, the entity no longer meets the definition of ‘partnership’, which requires that there be two or more persons, but the business may be continued as a sole proprietorship as provided in article 2828, supra.”

In the present case, the removal of Lo-vell and Quinn-L Corporation did not reduce membership in the partnership to one person, however it did result in the departure of all general partners. The trial judge, apparently reading together LSA-C.C. Arts. 2829 and 2837 of the new partnership articles, concluded that by definition of a partnership in commendam, the departure of all general partners would also result in termination. In so doing, he cites the- comment, “An Examination of Louisiana Limited Partnership-The Partnership In Commendam”, 55 Tulane Law Review, p. 515, 540, in which the writer states as follows:

“Since, by definition, continuance of a partnership in commendam is dependent upon the existence of at least one general partner, the departure of the sole general partner would appear to dissolve the partnership.123 This result is consistent with the ULPA which provides that a limited partnership is dissolved upon the withdrawal of a sole general partner unless there is at least one other general partner and the certificate permits the partnership to continue.124
123 La.Civ.Code art. 2837. Since the general partner manages the business, the firm could not continue its business without a general partner unless the limited partners were to be held liable as general partners. See id. art. 2844. Arguably, the partner in commendam can agree to continue the business and appoint an additional general partner within a specified time so as to avoid the dissolution of the partnership. See Uniform Limited Partnership Act § 801(3) (1976).
124 Uniform Limited Partnership Act § 801(3) (1976).”

Defendants, on the other hand, argue the above stated position of footnote 123 that dissolution can be avoided by agreement of the partners in commendam. This result would require a limbo period at least until an additional general partner is appointed, where the firm would either be without management or the limited partners would be held liable as general partners. We think the better position is that the departure of all general partners results in dissolution. Our interpretation of the new partnership provisions supports this conclusion. LSA-C.C. Art. 2836 makes the provisions of the other chapters of Title XI applicable to partnerships in commen-dam to the extent that they are consistent with Chapter 7 on the partnership in com-mendam. Comment (b) of the official comments to that article provides that provisions of Chapter 7 should be construed as mandatory because of the nature of the partnership in commendam and the manner in which it affects the interests of third parties. In addition, the requirement of existence of at least one general partner may not be departed from (even temporarily) not only because it is mandatory but because it is essential as contained in the definition of a partnership in commendam. See Comment (b) to LSA-C.C. Art. 2802.

Although avoidance of dissolution in such a case might be desirable, we think the legislature is the proper forum to address such a contingency. In this respect, we note that dissolution could have been avoided in the present case under the new provisions of the code by avoiding the simultaneous removal of all general partners.

Having concluded that the requirement that there be at least one general partner may not be departed from, we need not consider whether the articles of partnership, as contended by defendants, provide for continuation upon removal of both general partners.

EFFECT OF THE REMOVAL OF LOVELL AND QUINN-L AS GENERAL PARTNERS

Defendants contend that a valid distinction may be made between “removal” and “deprivation of management” and that by “removing” Lovell and Quinn-L Corporation they intended only to deprive them of their management authority.

We need not decide in this case whether under our law a general partner may be stripped of his management authority and yet remain as a member of the partnership. Even assuming arguendo that a choice is available, the action taken must be judged by the facts extant at the time and in light of the provisions of the articles of partnership. In the instant case, the record makes clear that the Bossier interest sought removal of Lovell and Quinn-L Corporation as partners. Further, the partnership agreement, as amended, specifically Articles 4(b), 25 and 28, on which defendants rely, utilizes the specific term “removal”. In context, these articles deal with “the death, incapacity, resignation or removal of either general partner ... ”. The connotation of each condition is that the general partner can no longer serve as a partner, rather than being simply deprived of management. For these reasons, we find no merit in this contention of defendants.

THE EXISTENCE OF OTHER GENERAL PARTNERS

In the alternative, defendants contend that the partnership remains in existence because Lovell and Quinn-L Corporation were not the only general partners and therefore their removal did not constitute the departure of all general partners. Defendants base their contention on the following hypotheses:

1. On February 18, 1974, at the time of its inception, the partnership known as “The Pines Apartments” because of its composition, was, in reality, an ordinary partnership and therefore • City Partners of 1974 has always been a general partner of Quinn-L Corporation-1974.
2. Fither, Inc. was a general partner at the time of the removal of Lovell and Quinn-L Corporation.

STATUS OF CITY PARTNERS OF 1974

City Partners of 1974 was designated in the original partnership agreement of “The Pines Apartments” as the only partner in commendam. City Partners of 1974 was an ordinary Louisiana partnership. At that time its only two partners were S. Mark Lovell and Quinn-L Corporation, the only general partners as designated by the partnership articles.

For this argument, defendants rely on a letter opinion which the Bossier interest requested for Federal Income Tax purposes before investing in the partnership, in which the following statement was made:

“The Partnership agreement has been amended to better insure treatment as a partnership in commendam under Louisiana law. There is a possibility that the Partnership as originally formed was not a partnership in commendam but rather merely a general partnership... No opinion is expressed as to whether or not the amendment will have the effect of insulating City Partners of 1974 or any Partner of City Partners of 1974 from personal liability.”

In response to this argument, the trial judge stated in his written reasons for judgment as follows:

“In brief, the defendants maintained that City Partners of 1974 was somehow a General Partner. However, a simple reading of the Partnership agreement convinces the court that City Partners was admitted as an in commendam partner, not as a general partner. Further, the defendants themselves never considered City Partners anything but a commendam partner in that throughout the entire removal proceedings, nothing was ever mentioned of City Partners being a General Partner. The same is also true of Fither, Inc.”

We find no error in the trial judge’s conclusion. Under our partnership law applicable in the year 1974, a Louisiana partnership was dissolved by any change in the relation of the partners, including the addition of new partners. Abat & Generes v. Penny, 19 La.Ann. 289 (La.1867). Thus, the old partnership created February 18, 1974 was dissolved by the addition of the Bossier interest as partners, with a new entity being established which merely continued the business operation of the former without interruption. Whether or not City Partners of 1974 or its partners are insulated from personal liability vis-a-vis third persons or how it is treated by the Internal Revenue Service is immaterial to this case. It is clear from the original partnership agreement, and each of the other 1974 amendments to the partnership agreement, that the intention of all of the parties to the contracts creating the partnership was that the status of City Partners of 1974 would be that of a partner in commendam.

STATUS OF FITHER, INC.

Defendants contend that Fither, Inc. was also a general partner at the time that Lovell and Quinn-L Corporation were removed. For this highly contingent argument, defendants again rely on a finding that their removal attempt of October, 1980 was ineffective, and that the valid removal of Lovell and Quinn-L Corporation did not take place until May 25, 1981. This argument is further contingent on the alleged valid election of Fither, Inc. as a general partner on December 2, 1980. We reject this argument.

On December 2, 1980, Fither, Inc. was not designated in the articles of partnership as a partner of Quinn-L Corporation-1974. Fither, Inc. was merely a partner in City Partners of 1974 which in turn was designated a partner of Quinn-L Corporation-1974. Louisiana law considers a partnership a separate juridicial entity. LSA-C.C. Art. 2801 (Act 150, § 1, 1980). This article merely codified existing princi-pies and makes no change in the law. In order to validly elect Fither, Inc. as a general partner, it was first necessary to admit Fither, Inc. to the partnership. It is important to remember that defendants are claiming that Lovell and Quinn-L Corporation were still general partners with full administrative powers. Defendants’ argument that Fither, Inc. was admitted as a general partner at the meeting of December 2, 1980 ultimately fails because it runs afoul of the requirement of unanimity for the admission of a partner since Lovell and Quinn-L Corporation did not vote. LSA-C.C. Art. 2807.

In addition, we find no merit in defendants’ argument that by listing Fither, Inc. as a partner on tax returns filed with the Internal Revenue Service, the general partners acquiesced in the admission of Fither, Inc. as a partner.

Finally, all of the arguments proposed by defendants for finding the continuous existence of at least one general partner are clearly, as the trial court found, contrary to the position taken by defendants throughout the entire proceedings and apparently are attempts to find a favorable fact scenario.

For the above reasons, we find no error in the trial court’s conclusion that removal of Lovell and Quinn-L Corporation resulted in the removal of all general partners and automatic dissolution of the partnership.

EFFECT OF DISSOLUTION AND ORDER OF JUDICIAL LIQUIDATION

Upon concluding that the partnership was dissolved, the trial judge ordered a judicial liquidation and appointed a judicial liquidator, relying on LSA-C.C. Art. 2834 which provides as follows:

“In the absence of contrary agreement, a partnership is liquidated in the same manner and according to the same rules that govern the liquidation of corporations.
A partnership retains its juridical personality for the purpose of liquidation.”

Finding no contrary agreement in the articles of partnership, the trial judge merely applied the rules that govern the liquidation of corporations, specifically citing LSA-R.S. 12:141 and LSA-R.S. 12:142(D).

Official comment (c) to LSA-C.C. Art. 2834 provides as follows:

“(c) Once a cause of termination occurs, the partnership is required to liquidate, unless it is continued as provided in Articles 2827 and 2828, supra. If the partnership does not liquidate after a cause of termination has occurred, any interested party may seek a court order directing liquidation and a judicial appointment of a liquidator. An “interested party” includes a partner, a third party creditor, an heir or assign of a partner, or any one who has a legitimate interest in the liquidation of the partnership. If the interested party has good reason for demanding liquidation, he may force liquidation even in case the partnership or the business has been continued as provided in Articles 2827 and 2828, supra."

Defendants contend that they are entitled to continue the partnership despite termination pursuant to LSA-C.C. Art. 2827 which provides as follows:

“A partnership may be expressly or tacitly continued when its term expires or its object is attained, or when a resolutory condition of the contract of partnership is fulfilled. If the object becomes impossible, the partnership may be continued for a different object.
Unless otherwise agreed, a partnership that is expressly or tacitly continued has no term.”

The cause of termination in the present case was departure of all of the general partners, a cause not enumerated in LSA-C.C. Art. 2827. That article is therefore inapplicable and the partnership is required to liquidate. We therefore find no error in the trial judge’s order directing liquidation and appointing a liquidator.

For the foregoing reasons, the judgment appealed from is affirmed and this matter is remanded to the trial court for further proceedings consistent with the views expressed.

AFFIRMED AND REMANDED.

      . We need not decide whether the use of summary proceedings for the trial of these matters was proper since no objection thereto was raised by any of the parties. LSA-C.C.P. Art. 926.

      . LSA-C.C. Art. 2826 was amended by Acts 1981, No. 797, § 1, to provide that the retirement, death, interdiction, or dissolution of any general partnero will terminate the partnership unless continued pursuant to the articles of partnership or by consent of all of the remaining partners, assuming membership is not reduced to one person.

      . The letter opinion suggests the possibility that because of the ownership of City Partners of 1974, question might be raised concerning the validity of Quinn-L Corporation-1974 as a partnership in commendam. Subsequent to rendition of this letter opinion, S. Mark Lovell conveyed his interest in City Partners of 1974 to Fither, Inc.


source: Caselaw Access Project

author: KNOLL, Judge.

license: Public Domain

text:
    STATE of Louisiana, Plaintiff-Appellee, v. Donald George KENDIG, Defendant-Appellant.
    No. CR83-771.
    Court of Appeal of Louisiana, Third Circuit.
    May 16, 1984.

      Carla F. Chrisco, D. Michael Mooney, Lake Charles, for defendant-appellant.
    Jerry G. Jones, Dist. Atty., Cameron, for plaintiff-appellee.
    Before CUTRER, STOKER and KNOLL, JJ.
   KNOLL, Judge.

The defendant, Donald George Kendig, was indicted by the Grand Jury of Cameron Parish on December 30, 1982 for second degree murder in violation of LSA-R.S. 14:30.1. The defendant entered a plea of not guilty. On June 8, 1983 a twelve member jury found defendant guilty as charged. On June 15, 1983, the trial court imposed the mandatory sentence upon the defendant, i.e., imprisonment at hard labor for life without benefit of parole, probation or suspension of sentence.

Defendant appeals his conviction relying upon three assignments of error, alleging that the trial court erred:

(1) In allowing the State to introduce evidence that was outside the scope of its opening statement;
(2) In refusing to give the defendant’s requested jury instructions concerning justifiable homicide and the legal presumptions of the blood alcohol test; and,
(3) In denying defendant’s motion for a new trial on the grounds that the verdict was contrary to the law and the evidence because the State used only circumstantial evidence and it did not exclude every reasonable hypothesis of innocence.

FACTS

At approximately 10:00 o’clock P.M. on November 23, 1982 the victim, Joyce Ken-dig, wife of defendant, left her home in Lake Charles driving her red Buick LeSa-bre. Apparently she crossed her husband on the highway while he was driving his white El Camino truck. They followed each other south from Lake Charles down the Gulf Highway toward Cameron, past the airport to Boone’s Corner, then turned onto Highway # 384. At a point approximately five miles east of Boone’s Corner, the defendant parked his El Camino off Highway # 384 in a ditch on the south of the paved road headed east. Joyce Kendig parked her red Buick partly on the road and on the shoulder, a short distance behind her husband.

The physical evidence at the scene of the crime shows that the Kendigs exited their vehicles and faced each other in the center of the road. Mrs. Kendig was wearing glasses. The defendant shot her three times with his AR7 .22 survival rifle, using hollow point bullets from a distance of one to two feet. The bullet entries formed a semicircle pattern around her left eye. She fell on the road and her glasses were found near a puddle of blood on the road. Five empty cartridges from the bullets were found on the road near the blood and her glasses. Mrs. Kendig was shot a fourth time, with entry under the chin on the right side, exiting through the top of her head.

The defendant dragged Mrs. Kendig’s body to a ditch on the side of the road. An empty cartridge was found at the edge of the road near her body in the ditch.

Four young people, Raymond Felio, Cindy Fogleman, Jolene LaBove and Robert Montie, stopped at the scene of the crime when they saw the El Camino in the ditch. They thought there was an automobile accident and stopped to offer assistance. Raymond Felio asked defendant, as he was coming out of the ditch, if anyone was hurt. Defendant responded that no one was hurt and everything was all right. Defendant then got into the red LeSabre and hurriedly left the scene.

Cindy Fogleman and Jolene LaBove had parked their truck behind Raymond’s car. While they were walking toward Raymond’s car, Cindy spotted a body in the ditch in the area where they saw defendant and Raymond speaking. Raymond walked into the ditch and saw Mrs. Kendig’s body with her face covered by her blouse. Raymond pulled Mrs. Kendig’s blouse down from over her face and observed her lips quiver, then stop. Cindy immediately left to notify the police.

The defendant’s rifle was found a short distance from Mrs. Kendig’s body in brush located near the ditch.

Early the next morning a Cameron Parish deputy received word from a passing newspaper deliveryman that a car matching the description of Mrs. Kendig’s Buick was bogged in a ditch near the Cameron-Calcasieu parish line with a male occupant inside. Deputies searching the area observed that the description and license plate matched that of Mrs. Kendig’s car. Defendant was inside the Buick waiting for help to pull him out of the ditch. Based on the physical description given by the witnesses who discovered the body and who saw the defendant at the scene, the police apprehended the occupant of Mrs. Kendig’s automobile. He was later identified as Donald George Kendig, husband of Mrs. Joyce Kendig. They had been married for two months.

ASSIGNMENT OF ERROR ONE

The defendant argues that the trial court erroneously allowed the State to introduce evidence that was outside the scope of its opening statement. In particular, defendant asserts that the State failed to allege in its opening remarks that the crime occurred in Cameron Parish.

The State called Raymond Felio as a witness. On direct examination the State asked:

“Q. The place where this [the murder of Joyce Kendig] happened, Raymond, was in Cameron Parish.
A. Yes, sir.
Mr. Alexander: I tender the witness.
Miss Chrisco: Your honor, excuse me. We’re going to object to that last answer and ask to approach the bench. ”

After arguments by counsel, the trial court denied the defendant’s objection.

LSA-C.Cr.P. Art. 766 provides:

“The opening statement of the state shall explain the nature of the charge, and set forth, in general terms, the nature of the evidence by which the state expects to prove the charge. ”

LSA-C.Cr.P. Art. 769 provides:

“Evidence not fairly within the scope of the opening statement of the state shall not be admitted in evidence.
If the state offers evidence that was inadvertently and in good faith omitted from the opening statement, the court, in its discretion may admit the evidence if it finds that the defendant is not taken by surprise or prejudiced in the preparation of his defense. ”

In its opening statement, the State is merely required to delineate in general terms the nature of the charge and the evidence. The purpose is to acquaint the jury with the case so they may better understand the evidence, and, to inform the defendant of the nature of the charge and evidence so as to prevent the defendant from being unfairly surprised. State v. Bolen, 338 So.2d 97 (La.1976).

There is no dispute as to where the offense occurred. At no time prior to trial did the defense file a motion to quash alleging that Cameron Parish was not the proper venue. Defendant does not complain that he was prejudiced or surprised by the evidence indicating the location of the crime. In State v. Dillon, 260 La. 215, 255 So.2d 745 (1971), the Louisiana Supreme Court held:

“... such an opening statement, describing the ‘nature’ of the charge and the evidence, is not required to note the location of the crime, especially where ... there was no dispute as to this fact. ”

In accord see State v. Ferdinand, 285 So.2d 530 (La.1973).

This assignment is without merit.

ASSIGNMENT OF ERROR TWO

Defendant contends the trial court erred in refusing to give two special jury instructions.

The defendant requested the trial court to instruct the jury regarding the presumption of intoxication contained in LSA-R.S. 32:662 A.(l). He argues that the intent to commit the crime of second degree murder was absent because of the defendant’s intoxication. Approximately thirteen hours after defendant shot and killed Mrs. Kendig, he had a blood alcohol reading of .010, indicating that there was very little ethyl alcohol in his system. Defendant contends a blood sample drawn at 11:45 P.M. the evening before, would have indicated a higher blood alcohol reading.

We find State v. Lowdins, 412 So.2d 1349 (La.1982) dispositive of this issue. In Lowdins, supra, defendant sought to have a similar instruction given concerning the legal presumption established in R.S. 32:662 A.(l). The Louisiana Supreme Court held:

“La.R.S. 32:662 deals with legal intoxication for the purpose of the operation of automobiles on the open road. Intoxication for purposes of the motor vehicle code, and the degree of the intoxication necessary to negate an essential element of a major felony offense, are clearly different matters. Defense counsel’s charge was potentially misleading, as it invited the jurors to conclude that because the defendant was legally presumed intoxicated, he lacked the specific intent to commit the crime. R.S. 14:15(2).

LSA-C.Cr.P. Art. 807 provides in pertinent part:

“A requested special charge shall be given by the court if it does not require qualification, limitation, or explanation, and if it is wholly correct and pertinent. It need not be given if it is included in the general charge or in another special charge to be given.

In the present case, as in Lowdins, supra, the requested charge was not “wholly correct and pertinent” under C.Cr.P. Art. 807.

Furthermore, the trial court included an appropriate instruction to the jury on intoxication. Therefore, we find that the trial court correctly refused to give the defendant’s suggested charge.

The defendant also sought to have the jury instructed concerning justifiable homicide.

LSA-C.Cr.P. Art. 802 requires the trial judge to charge the jury only “as to the law applicable to the case.” State v. Johnson, 438 So.2d 1091 (La.1983); State v. Lane, 414 So.2d 1223 (La.1982). Accordingly, the trial court must charge the jury, when properly requested, concerning the law applicable to any defense theory which the jurors could reasonably infer from the evidence. State v. Johnson, supra; State v. Telford, 384 So.2d 347 (La.1980). The requested jury charge must, however, be supported by the evidence. State v. Simmons, 422 So.2d 138 (La.1982); State v. Toomer, 395 So.2d 1320 (La.1981).

LSA-R.S. 14:20 provides in pertinent part:

“A homicide is justifiable:
1) When commited in self-defense by one who reasonably believes that he is in imminent danger of losing his life or receiving great bodily harm and that the killing is necessary to save himself from that danger; or
(2) When committed, for the purpose of preventing a violent or forcible felony involving danger to life or of great bodily harm, by one who reasonably believes that such an offense is about to be committed and that such action is necessary for its prevention. The circumstances must be sufficient to excite the fear of a reasonable person that there would be serious danger to his own life or person if he attempted to prevent the felony without the killing.
(3) When committed against a person whom one reasonably believes to be likely to use any unlawful force against a person present in a dwelling or a place of business while committing or attempting to commit a burglary of such dwelling or business. The homicide shall be justifiable even though the person does not retreat from the encounter.

Defendant presents a hypothetical argument without any supporting evidence that he acted in self-defense. This is a cavil contention. The defendant was forty-six years of age at the time of the offense; he is 6'3" tall and weighed 230 pounds. Mrs. Kendig was 5'2" tall and weighed 165 pounds. There was no evidence that she was of any threat to the defendant. Mrs. Kendig was shot four times by defendant in the head with defendant’s AR7 .22 caliber survival weapon using hollow point bullets; defendant dragged her body from the middle of the road to a ditch and fled; when passers-by inquired if there had been an auto accident, defendant told them that nothing was wrong.

Accordingly, the trial court did not err in refusing to give a jury instruction on justifiable homicide.

This assignment of error is without merit.

ASSIGNMENT OF ERROR THREE

In a motion for a new trial, defendant contended that the State used circumstantial evidence and the verdict was contrary to the law and evidence presented. Defendant contends that the trial court erred in denying his motion for a new trial.

In State v. Graham, 422 So.2d 123 (La.1982) the Louisiana Supreme Court considered the constitutional and statutory standards to judge the sufficiency of the evidence. The court held:

“The Due Process Clause of the Fourteenth Amendment requires this court to review the evidence upon which a criminal conviction is based to determine whether it is minimally sufficient. A defendant has not been afforded due process, and his conviction cannot stand, unless, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could conclude that the state proved the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, US U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Additionally, we are governed by our statutory rule as to circumstantial evidence: assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence. R.S. 15:438.”

See also: State v. Johnson, supra; State v. Chism, 436 So.2d 464 (La.1983).

Defendant argues that his conviction was based on skimpy, circumstantial evidence which did not exclude every reasonable hypothesis of innocence as required by LSA-R.S. 15:438. After a careful review of the record, we conclude that the State has satisfied its burden of proof and, presented strong and convincing circumstantial evidence. Shortly before defendant shot Mrs. Kendig, he went to the Calcasieu Parish Regional Training Academy and had the firearms instructor accurately sight his weapon at a range of twenty five yards. Defendant’s survival rifle was normally disassembled; therefore, in order to use the gun, defendant had to make a conscious effort to assemble it. The killing took place on a lonely stretch of highway. The evidence showed that the victim was shot repeatedly as she stood in the highway and that she was shot with accuracy at close range. Her body had been dragged to a ditch alongside the road by defendant. Four witnesses arrived at the scene of the crime as the defendant was climbing out of the ditch near Mrs. Kendig’s body. Defendant told the witnesses that no one was hurt, then he hurriedly left the scene. The witnesses found Mrs. Kendig’s mortally wounded body in the ditch where they had seen defendant exit. They found the murder weapon at the scene in the brush near the body. Defendant was apprehended the morning after the offense, a short distance away from the crime scene in Mrs. Kendig’s automobile which he had bogged in a ditch.

.Viewing the evidence in the light most favorable to the prosecution and excluding every reasonable hypothesis of innocence, it appears that the only reasonable conclusion the jury could reach was that defendant intentionally shot and killed Mrs. Ken-dig without justification.

This assignment of error is without merit.

DECREE

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

AFFIRMED.


author: CUTRER, Judge. KNOLL, Judge,

text:
    STATE of Louisiana, Plaintiff-Appellee, v. Christine DEVILLE, Defendant-Appellant.
    No. CR83-808.
    Court of Appeal of Louisiana, Third Circuit.
    May 16, 1984.

      Wilford Carter, Lake Charles, for defendant-appellant.
    Leonard Knapp, Jr., Dist. Atty., Karen Price, Asst. Dist. Atty., Lake Charles, for plaintiff-appellee.
    Before CUTRER, STOKER and KNOLL, JJ.
   CUTRER, Judge.

Christine Deville was charged by bill of information with having committed the negligent homicide of her husband, Larry Deville, in violation of LSA-R.S. 14:32. After being found guilty as charged by a six person jury, the defendant filed a motion for a new trial. A hearing on the motion was held, and the motion was denied. Upon waiving sentencing delays, the defendant was sentenced to five (5) years imprisonment at hard labor without benefit of parole or probation.

FACTS

On June 27, 1982, the defendant was attending a wedding reception being held for her niece at the White Eagle Lounge on Enterprise Boulevard in Lake Charles. She had arrived at the lounge at approximately 9:30 P.M., and many of her relatives were present on this evening. According to the defendant, she only drank two or three beers while at the reception and was not intoxicated. Her husband, Larry De-ville, arrived some time after the defendant and, after drinking heavily, he became drunk.

The defendant and the victim, after living together for nine years, had married in 1981, but on the night of the reception they were separated. Apparently they had often separated and later reconciled. When the victim saw his wife sitting at a table with two other men in the lounge, he became agitated. According to O.C. Lewis, the defendant’s brother, who was sitting at the table with the victim, the latter stated that he was going to hit the defendant when she returned from the restroom.

When the defendant walked up to his table, the victim told her harshly to give him his car keys. Lewis stated that the victim, true to his word, hit the defendant in the face with his fist as she was looking in her purse for the keys. Lewis’ testimony of what had happened is as follows:

“Well, like I say, Larry was standing. So all of a sudden Larry punched her, and when he punched her I looked up at Larry, cause Larry’s tall ... I say about six foot two ... I looked up at him, and then I seen the expression on his face. Then I looked back ... my sister had the gun pointed to his stomach. Now this happened so quick, before I could do anything or say anything, Larry hit the gun up with his left hand ... cause I’m watching that gun ... I’m not going to take my eyes off no gun ... anybody that takes eyes off a gun is crazy ... hit it, and when the bullet ... when he hit the gun, the bullet went off.....”

The gun, a small .22 caliber pistol, was fired only once. The bullet entered the victim’s chest above the heart. He was taken to a local hospital where he died a short time later.

The defendant testified that she could not remember taking the gun from her purse, nor could she remember firing it. She stated that she had never before fired a gun. The defendant said that all she remembered was being hit in the mouth by the victim as she was searching for her keys. According to the defendant, her husband had given her the gun for protection as she had been robbed several times; she worked as a beautician and often made evening bank deposits. The defendant testified that she had inadvertently brought the gun with her on that Saturday evening, having earlier left it in the purse which she carried to the reception.

The defendant’s sister, Ms. Willie Pearl Smith, was present and heard the shot fired. When she asked the defendant why she had shot the victim, the reply was, “Larry hit me in the mouth....”

The defendant appealed her conviction, raising three assignments of error. However, only two of those have been briefed. The third is deemed abandoned. State v. Washington, 430 So.2d 641 (La. 1983). The two assignments preserved on appeal allege that:

(1) The verdict is contrary to the law and the evidence in that the State failed to prove beyond a reasonable doubt that the defendant killed Larry Deville or that his death was the result of a negligent homicide; and
(2) The trial court erred in refusing to grant the defendant a mistrial when the State, during trial, made impermissible references to two prior arrests of the defendant.

ASSIGNMENT OF ERROR NUMBER 1

By this assignment the defendant argues that the State provided insufficient evidence upon which a conviction of negligent homicide could be based.

Under the law, we are called upon to review the evidence in the light most favorable to the prosecution; only if we then find that any rational factfinder could not have found that the State proved every element of the crime beyond a reasonable doubt can we supplant the factual findings of the lower court. With this standard in mind, we review the defendant’s claim of insufficient evidence.

Negligent homicide is defined in LSA-R.S. 14:32 as being “the killing of a human being by criminal negligence.” There is no question that the defendant held and fired the .22 caliber pistol whose discharge resulted in the victim’s death a short time later. The victim was 31 years of age at the time of his death and in good health prior to the shooting. His death resulted from massive hemorrhaging and shock caused by the bullet from the pistol fired by defendant.

Criminal negligence is defined in LSA-R.S. 14:12 as follows:

“Criminal negligence exists when, although neither specific nor general criminal intent is present, there is such disregard of the interest of others that the offender’s conduct amounts to a gross deviation below the standard of care expected to be maintained by a reasonably careful man under like circumstances.

In the instant case, the trial judge has favored us with a per curiam opinion as to this issue. The pertinent portion of that opinion, with which we are in agreement, states the following:

“The evidence showed that the Defendant, who was in no real physical danger from the intoxicated victim, Larry DeVille, took a pistol from her purse in a crowded night club and pointed it at victim, Larry DeVille, and that the victim was killed with a bullet fired from the pistol in the Defendant’s hand. The evidence further showed that at the time of the shooting the Defendant’s brother was near the Defendant as well as other members of her immediate family, and that the Defendant had ample opportunity to withdraw from the victim or to move away from the decedent, if she had desired, or to have sought protection from her family members who were nearby. A jury could reasonably conclude beyond a reasonable doubt from the facts of this case that the Defendant under those circumstances was guilty of a gross deviation below the standard of care ex pected to be maintained by a reasonably careful person under like circumstances.”

The victim’s attempt to knock the gun from the defendant’s hand does not negate the defendant’s unreasonable and criminally substandard behavior in pointing a loaded gun at the victim’s body. The State provided expert testimony that the gun causing the fatal injury had a trigger pull weight of 13 pounds 10 ounces in the double action mode (without the hammer being cocked) and of 5 pounds 3 ounces with the hammer being cocked initially. Further, these weights were slightly above normal and clearly prevented the gun from being classified as having a “hair trigger.” The defendant’s actions were clearly criminal negligence and resulted in the killing of Larry Deville. Also, see State v. Parker, 431 So.2d 114 (La.App. 1st Cir.1983), writ den., 435 So.2d 433 (La.1983). State v. Robinson, 423 So.2d 1053 (La.1982); State v. Bradley, 414 So.2d 724 (La.1982); State v. Herrod, 412 So.2d 564 (La.1982).

The defendant also argues without force or authority that she acted in self-defense when she shot the victim. There is obviously a conflict present when one attempts to argue on one hand that the gun discharged accidentally and then alternatively argues that the actions were justifiable as being in self-defense. Nevertheless, when the defendant raises the issue of self-defense, the State bears the entire and affirmative burden of negating that defense. State v. Savoy, 418 So.2d 547 (La.1982); State v. Collins, 306 So.2d 662 (La.1975). The State has clearly met its requisite burden of proof.

LSA-R.S. 14:20 provides in pertinent part as follows:

“A homicide is justifiable:
(1) When committed in self-defense by one who reasonably believes that he is in imminent danger of losing his life or receiving great bodily harm and that the killing is necessary to save himself from that danger; or
(2) When committed, for the purpose of preventing a violent or forcible felony involving danger to life or of great bodily harm, by one who reasonably believes that such an offense is about to be committed and that such action is necessary for its prevention. The circumstances must be sufficient to excite the fear of a reasonable person that there would be serious danger to his own life or person if he attempted to prevent the felony without the killing.

The evidence at trial indicated that the victim hit the defendant once in the mouth with his fist prior to being shot. This occurred at a wedding reception being held for one of the defendant’s nieces; in attendance were many of the defendant’s family. Lewis, the defendant’s brother, was sitting at the table with the victim and was privy to all that transpired. Testimony at trial indicated that the defendant and the victim had engaged in various marital disputes. The defendant, who claimed the victim often struck her, had, however, never received any medical treatment for alleged injuries suffered at the victim's hands.

Even had there been a history of past physical abuse of the defendant by the victim, her actions in shooting him under the attendant circumstances would not be justified. See State v. Brown, 414 So.2d 726 (La.1982). This assignment has no merit.

ASSIGNMENT OF ERROR NUMBER 2

The defendant contends that the trial court erred in denying her motions for a mistrial, when the State allegedly made reference to prior arrests of defendant. Defendant was on cross-examination when the State asked her if she had been convicted of a crime. At first the defendant denied any conviction, but after her memory was refreshed, she admitted that she had been convicted of child neglect for which she was sentenced to two months in jail. This occurred in 1964. Such a question is permitted for the purpose of impeaching the defendant as a witness. LSA-R.S. 15:495. This contention lacks merit.

The second allegation of defendant is that the State referred to other arrests of defendant in the State’s examination of the victim’s mother.

We have examined the dialogue and we find in this exchange the State was asking the mother whether defendant was out of jail at the time of the victim’s funeral. The mother replied that defendant was still incarcerated at the time of Larry’s funeral.

A reading of this dialogue clearly shows that the incarceration of defendant, referred to by the prosecutor and the mother, was the incarceration growing out of the commission of the offense in question.

Such a reference to the same offense as that which is charged does not violate LSA-R.S. 15:495. Also, the trial judge, out of an abundance of caution, admonished the jury to disregard the question and answer. This contention has no merit.

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

AFFIRMED.

KNOLL, J., concurs in part, dissents in part and assigns reasons.

KNOLL, Judge,

concurring in part and dissenting in part.

I concur in the conviction.

I respectfully dissent from the imposition of the sentence under LSA-C.Cr.P. Art. 893.1. The defendant was convicted of negligent homicide, a violation of LSA-R.S. 14:32. The sentencing court by-passed the sentencing provision of R.S. 14:32 and imposed the enhanced penalty provided in Article 893.1. The imposition of sentence in such a manner makes Article 893.1 a crime rather than serving as an enhanced penalty. The case should be remanded to the trial court for the proper imposition of sentence.

For the foregoing reasons, I respectfully dissent in part from the majority opinion.

      . This sentence was properly imposed under the strictures of LSA-C.Cr.P. art. 893.1, which mandates the penalty to be levied under R.S. 14:32, when a firearm has been used during the commission of negligent homicide.

      . LSA-R.S. 15:495 provides:
      "Evidence of conviction of crime, but not of arrest, indictment or prosecution, is admissible for the purpose of impeaching the credibility of the witness, but before evidence of such former conviction can be adduced from any other source than the witness whose credibility is to be impeached, he must have been questioned on cross-examination as to such conviction, and have failed distinctly to admit the same; and no witness, whether he be defendant or not, can be asked on cross-examination whether or not he has ever been indicted or arrested, and can only be questioned as to conviction, and as provided herein."


author: SCHOTT, Judge.

text:
    DELTA DEVELOPMENT COMPANY, INC., et al. v. PLAQUEMINES PARISH COMMISSION COUNCIL, et al.
    No. CA-1927.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 24, 1984.
    Rehearing Denied June 11, 1984.
    Writ Denied Sept. 14, 1984.

      John R. Schupp, Mary G. Chappuis, Randall A. Karr, Broadhurst, Brook, Mang-ham, Hardy & Reed, Lafayette, Ernest R. Eldred, George L. Clauer, III, Baton Rouge, for defendants-appellees.
    Daniel Lund, Harold B. Carter, Jr., Montgomery, Barnett, Brown & Read, New Orleans, for Delta Development Co., Inc.; Donald W. Doyle, New Orleans, of counsel.
    Gene W. Lafitte, William R. Pitts, Anne E. Tate, Liskow & Lewis, New Orleans, for plaintiffs-appellants Betty Perez Carrere and Richard J. Carrere.
    John M. McCollam, Marcel Garsaud, Jr., Andrew McCollam, III, Gordon, Arata, McCollam & Stuart, New Orleans, for plaintiffs-appellants Joyce Perez Gelpi, Chester P. Gelpi, Thomas Perez Eustis, Flora Ann Eustis, Geoffrey Edward Eustis, Nancy E. Kerr and Margaret Miller Eustis.
    Peter J. Butler, Louis V. Lauricella, Butler & Heebe, New Orleans, for plaintiffs-appellants Leander H. Perez, Jr. and Aphra Perez.
    J. Minos Simon, J. Minos Simon, Ltd., Lafayette, for plaintiffs-appellants Chalin 0. Perez and Lynn Perkins Perez.
    Before GULOTTA, SCHOTT and WARD, JJ.
   SCHOTT, Judge.

Plaintiffs, Delta Development Company, Inc. and the heirs of Leander H. Perez (hereinafter collectively referred to as Delta), have appealed from a judgment denying their motion for a preliminary injunction against the members of the Plaque-mines Parish Commission Council (hereinafter collectively referred to as the Council). Delta sought to enjoin the Council from continuing with a law suit it previously filed against Delta on the ground that the resolution of the council authorizing the suit was adopted in violation of Louisiana’s Open Meeting Law, (LSA-R.S. 42:4.1 et seq.) Just prior to the hearing on the injunction rule the Council took action to ratify the previous resolution. In denying the injunction the trial court held that Delta’s suit became moot when the Council ratified its resolution. Thus, the principal issue is whether the Council’s original resolution, if adopted in violation of the Open Meeting Law, could be ratified or was it absolutely null and void and insusceptible of ratification. A' secondary issue is Delta’s entitlement to attorneys’ fees under the circumstances of the case.

On August 25, 1983, the Council adopted Resolution 839 authorizing the filing of a suit to recover mineral rights from Delta. The suit was filed on the same date under docket number 25-708 of the district court in Plaquemines Parish. On October 17, 1983, the instant suit was filed. Alleging a number of violations of the Open Meeting Law in connection with the Council’s adoption of Resolution 839, Delta sought an injunction against the continued prosecution of case number 25-708; a declaratory judgment declaring as void the resolution, the previous suit, and a notice of lis pen-dens in connection therewith; and attorney fees in accordance with R.S. 42:11 C. The hearing on Delta’s suit was scheduled on November 3, 1983. In the meantime the Council met on November 2 and adopted a resolution ratifying its previous action authorizing the suit. At the conclusion of the hearing the trial court dismissed Delta’s suit reasoning that the original action of the Council, if taken in violation of the law, was not an absolute nullity but was merely voidable under R.S. 42:9; that LSA C.C. Art. 12 which declares as void whatever is done in violation of a prohibitory law was legislatively overruled by R.S. 42:9; that since the ratification on November 2 was done after full compliance with the Open Meeting Law, the purpose of the law was fully served; and that no further public purpose would be served by requiring the Council to dismiss its previous suit and refile the suit after still another compliance with the Open Meeting Law. In this court Delta specifies error in the trial court’s failing to declare Resolution 839 void, holding that the Council could ratify the resolution, and refusing to grant Delta attorney fees.

LSA Const.1974, Art. XII, Sec. 3, provides:

“No person shall be denied the right to observe the deliberation of public bodies and examine public documents, except in cases established by law.”

By Act 665 of 1976 the legislature implemented this constitutional fiat by adopting the Open Meeting Law. Its legislative purpose was set forth in Section 1 of the Act, R.S. 42:4.1:

“It is essential to the maintenance of a democratic society that public business be performed in an open and public manner and that the citizens be advised of and aware of the performance of public officials and the deliberations and decisions that go into the making of public policy. Toward this end, the provisions of R.S. 42:4.1 through R.S. 42:10 shall be construed liberally.”

In briefs and arguments in this court Delta has made a strong ease for its position that the Council violated the Open Meeting Law when it resolved to file suit against Delta. It contends that the Council had no right to hold an executive session on October 25 because the reason, i.e., to discuss suing Delta, was not among the exceptions to Open Meetings set out in R.S. 42:6.1, and the executive session itself was not conducted in compliance with R.S. 42:6. The Council takes issue with these arguments but contends that the question became moot when it adopted its ratification resolution on November 2.

R.S. 42:9, entitled “Voidability,” provides that any action taken in violation of the law “shall be voidable by a court of competent jurisdiction” and that a “suit to void any action must be commenced within sixty days of the action.” A simple reading of this section compels the conclusion that action taken by a public body without compliance with the Open Meeting Law is not an absolute nullity. If it were no purpose would be served by the sixty day provision for bringing enforcement proceedings. Something which is an absolute nullity ab initio cannot be brought to life with the passage of time because it never came into existence in the first place. The clear intent of R.S. 42:9 was to give interested persons the right to have an act of a public body declared null and void if performed illegally, but if sixty days pass without an attack the act is valid from its inception.

The importance of a decision as to absolute versus relative nullity of the Council’s resolution authorizing the suit lies in the fact that an absolute nullity cannot be subsequently ratified by a body. If absolutely void there was nothing for the Council to ratify and its only available course of action was to start over. On the other hand, general law and common sense would seem to dictate that a resolution which is not absolutely null and void, which came into being and existence when adopted, but which may be subsequently declared void because of technical violations of the law, may be corrected by ratification provided the ratification is adopted after full compliance with the law.

Delta does not dispute that the adoption of the ratification resolution was done in compliance with the Open Meeting Law but it contends that the Council’s original resolution could not be ratified because of these provisions of C.C. Art. 12:

“Whatever is done in contravention of a prohibitory law is void, although the nullity be not formally directed.”

Invoking the doctrine that laws in pari materia should be harmonized if possible and that an interpretation of implied repeal should be avoided, Delta contends that R.S. 42:9’s “voidable” language should be interpreted to mean absolutely void.

Rules of statutory construction provide that where two statutes deal with the same subject matter, they should be harmonized if possible, but that if there is a conflict the statute specifically directed to the matter at issue must prevail as an exception to the statute more general in character. State ex rel Bickman v. Dees, 367 So.2d 283, 291 (La.1978). Applying this principle to the instant case, the trial court correctly concluded that as to action taken in violation of the Open Meeting Law the legislature intended a specific exception to the general rule of C.C. Art. 12 by making such action voidable and not absolutely null and void.

The primary purpose of the Open Meeting Law and the constitutional provision insuring the right of citizens to participate in the deliberations of public bodies is to protect' citizens from secret decisions made without any opportunity for public input. The public has a right to know what is being considered and is entitled to “direct participation” in deliberations as styled by the title to Section 3, Article XII of the Constitution of 1974. Assuming that the Council’s original action of August 25 was taken in such a way that the public’s constitutional and statutory rights were violated, the injury or harm to the public was cured when the ratification resolution was adopted. This time according to the resolution, all aspects of the Open Meeting Law were scrupulously followed. There was full discussion as to the alternatives of continuing with the suit against Delta or dismissing it. Now that the public interest had been served there was no logical reason for the Council to dismiss its suit and start over.

As to the interests of Delta itself R.S. 42:6.1(2) authorizes a public body to hold an executive session in connection with “prospective litigation after formal demand.” Although there is no indication that any formal demand had been made prior to the August 25 meeting the record shows that Delta was advised that the proposed ratification would be taken up at the November 2 meeting and Delta declined to participate. One purpose the legislature may have had for limiting the exception to prospective litigation after formal demand was to protect someone from a suit without being provided with an opportunity to present his side before being sued. Since Delta had the opportunity at the November 2 meeting to show why the suit should be dismissed the purpose of the statute was accomplished.

Accordingly, we have concluded that the trial court correctly dismissed Delta’s rule for a preliminary injunction and we turn to the remaining issue of whether or not Delta was entitled to attorney fees under R.S. 42:11C which provides as follows:

“If a person who brings an enforcement proceeding prevails, he shall be awarded reasonable attorney fees and other costs of litigation. If such person prevails in part, the court may award him reasonable attorney fees or an appropriate portion thereof ...”

Delta argues persuasively that the Open Meeting Law was violated at the August 25 meeting. It points to the vagueness of the resolution and motion adopted by the Council authorizing the executive session and argues that this fell short of the notice required by R.S. 42:6. Delta makes a salient point that since the Council was clearly concerned with a suit against Delta for recovery of mineral rights the agenda and/or notice should have said so. Delta’s argument is especially persuasive in the light of R.S. 42:4.l’s mandate that the law be construed liberally.

In any event we assume for our purpose here that the Council’s original action of August 25 was taken in violation of the law. Delta argues entitlement to attorney fees because its enforcement proceeding forced the Council to consider ratification at the meeting on November 2 when all provisions of the law were complied with. In other words, says Delta, if the trial court was correct in holding that the Council could comply with the law by the ratification action, such action was produced by Delta’s bringing the enforcement proceedings and thus, Delta prevailed.

The statute makes a distinction between a party who prevails in full and one who prevails in part. In the former case the prevailing party is entitled to attorney fees as a matter of law while in the latter entitlement to attorney fees is within the discretion of the trial court. It cannot be said that Delta prevailed in full. It was seeking a preliminary injunction and failed to obtain it. On the other hand, it can be said that Delta prevailed in part. It provoked the Council to do what it should have at the beginning, namely, to comply with the Open Meeting Law on this question of suing Delta. The trial judge did not say why he denied Delta attorney fees but one plausible explanation is that he regarded Delta as a party which prevailed in part and in the exercise of the discretion vested in him by the statute he declined to award attorney fees. We are not persuaded that this constituted an abuse of the trial court’s discretion.

Accordingly, the judgment appealed from is affirmed.

AFFIRMED.


author: LOTTINGER, Judge.

text:
    Murlon WEBB v. POLK CHEVROLET, INC.
    No. 83 CA 0620.
    Court of Appeal of Louisiana, First Circuit.
    May 30, 1984.

      Johnnie A. Jones, Baton Rouge, for plaintiff-appellant Murlon Webb.
    Henry Salassi Jr., Baton Rouge, for General Motors Corp., Chevrolet Motor.
    John Dale Powers, Baton Rouge, for Polk Chevrolet Inc.
    Before LOTTINGER, EDWARDS and ALFORD, JJ.
   LOTTINGER, Judge.

This is an appeal from a judgment dismissing plaintiffs suit for nullity of a previous judgment.

On July 12,1978, plaintiff, Murlon Webb, filed a suit in redhibition against defendant, Polk Chevrolet, Inc. The trial court granted a directed verdict after plaintiffs presentation of his case. Plaintiff appealed and we reversed and remanded. Webb v. Polk Chevrolet, Inc., 387 So.2d 1240 (La. App. 1st Cir.1980), writ denied 390 So.2d 1344 (La.1980).

A new trial was scheduled for February 12, 1981. Plaintiff served interrogatories upon defendant which defendant refused to answer. Plaintiff then filed a “Notice of Intent to Apply Writ(s) of Certiorari, Mandamus, and/or Prohibition, and for Stay of Proceedings During Pendency of Application.” On January 5, 1981, the trial court ordered that “all trial court proceedings herein are hereby stayed until further ordered by the court.”

After this court denied the application for writs on January 12, 1981, plaintiff applied for writs to the Supreme Court, which were docketed on February 2, 1981. A certificate of service signed by plaintiffs counsel states that a copy of the application to the Supreme Court was mailed or delivered to opposing counsel and the trial judge, the Honorable Lewis S. Doherty III, by plaintiffs counsel on January 28, 1981. The Supreme Court disposed of this writ application on February 20, 1981, as follows: “Not considered. Not timely filed. See, La.S.Ct.Rules, Rule 10, Section 5(b).” 394 So.2d 602. The Chief Justice concurred in the action of the Court and was of the view that relator still had time to obtain an order from the district court to fix a reasonable time to file the application in the Supreme Court, citing La.S.Ct.Rules, Rule 10, §§ 1 and 5(b). The record before this court does not contain a copy of the application to the Supreme Court, and thus we are unaware of whether the Supreme Court knew a trial was scheduled for February 12, 1981.

Once the Supreme Court refused to consider the writ application, plaintiff on March 2, 1981, obtained a trial court order granting until March 13, 1981, to apply for writs to the Supreme Court.

The trial court on February 12, 1981 proceeded with the trial in the absence of plaintiff and his counsel. Attempts to reach plaintiff or his counsel were unsuccessful. Judgment was rendered for the defendant on February 13, 1981.

On February 19, 1981, plaintiff filed a petition for nullity of the February 13th judgment. The defendant filed an exception of no cause of action which was sustained by the trial court. This court reversed and remanded, finding that plaintiffs petition alleged facts which, if proved, might be sufficient to justify a finding of a relative nullity. Webb v. Polk Chevrolet, Inc., 415 So.2d 402 (La.App. 1st Cir.1982).

The trial court, with the Honorable Paul B. Landry, Jr. presiding, rendered judgment dismissing plaintiffs claim of nullity after a trial on the merits. Plaintiff now appeals that ruling.

SPECIFICATIONS OF ERROR

Plaintiffs specifications of error are five in number but can be condensed into two: 1) the trial court erred in failing to find that the trial judge in the previous redhibition judgment had actual notice that plaintiff had applied for writs to the Supreme Court; 2) the trial court erred in ruling that plaintiff failed to prove the elements necessary to nullify the previous judgment.

ISSUES

La.Code Civ.P. art. 2004 provides:

“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.”

Plaintiff did not allege in his petition nor did he subsequently prove that any fraud was present in the rendering of the redhibition judgment; instead he claims that an ill practice was involved. “Ill practice” has been defined by the jurisprudence as an occurrence in a case which would make the enforcement of the judgment unconscionable and which would deprive the party seeking the annulment of legal rights to which he is entitled. Evans v. Ivy, 387 So.2d 626 (La.App. 1st Cir.1980); Succession of Trouard, 281 So.2d 863 (La.App. 3rd Cir.1973). Depriving a party unfairly of his chance to have his full day in court would be such an ill practice. See Leidig v. Leidig, 187 So.2d 201 (La.App. 3rd Cir. 1966).

Plaintiffs initial contention is that Judge Doherty had actual notice of plaintiffs application for writs to the Supreme Court. Judge Doherty, called as a witness in the nullity action, denied any knowledge of the application. Neither plaintiff nor his counsel- produced any evidence that notice of the application was mailed or given to Judge Doherty. The trial judge was correct in finding that Judge Doherty did not have notice of the writ application to the Supreme Court.

Plaintiff argues that even though Judge Doherty may not have had actual notice of the intention to apply for writs to the Supreme Court, the stay order of January 5, 1981, was still in effect at the time of the completion of the redhibition trial on February 12, 1981. Plaintiff asserts that only an additional order for the trial court setting a new trial date could have rescinded the stay order. He also maintains that the “Notice of Intent to Apply for Writ(s)” should have been understood to have meant an intention on the plaintiffs part to apply to the Supreme Court if the court of appeal denied the application.

The first part of the “Notice” designates the disputed trial court ruling being brought up for review. The second paragraph reads as follows:

“Furthermore, plaintiff desires that the proceedings herein be stayed during the pendency of this matter in the appellate courts and until the ultimate outcome of all appellate proceedings.”

The accompanying order, signed by Judge Doherty on January 5, 1981, reads:

“IT IS ORDERED that all trial court proceedings herein are hereby stayed until further ordered by the court.”

The defendant asserts that the trial court in the instant action was correct in its interpretation of the “Notice” and order, and in its exoneration of Judge Doherty’s actions. In its view, the “Notice to Apply for Writ(s)” meant that plaintiff would ask the Court of Appeal only (and not the Supreme Court) to review the trial court’s ruling on the interrogatories.

After this court denied plaintiff’s writ application, absent any notice to Judge Do-herty of an intention to apply for writs to the Supreme Court, Judge Doherty was justified in believing plaintiffs attempts to obtain supervisory review were finished. Additionally, this court denied the writ application on January 12, and under La.S.Ct. Rules, Rule 10, § 5(b), plaintiff had ten days from that date to apply to the Supreme Court to seek review of the writ denial by this court. Plaintiffs certificate of notice to opposing counsel in the initial writ application to the Supreme Court was dated January 28, 1981. This is without question beyond the ten day limit, and the reason the Supreme Court did not consider the first writ application to it.

The argument by plaintiff that the January 5 stay order was still in effect as of the date of the February 12 trial is without merit. Plaintiff attempts to read into the stay order that the trial judge must affirmatively remove the stay once the court of appeal and/or the Supreme Court have disposed of any writ applications. That, however, is not the way the stay order signed by the trial judge was intended, nor is it the general practice in the legal community. The stay order is issued pending the writ application, and once the writ is disposed of, the stay order dissolves, particularly when the writ is denied. Even if we were to agree that the stay order included writ applications to the Supreme Court, plaintiffs application to the Supreme Court was untimely;'and thus the stay order dissolved at the expiration of the time to apply to the Supreme Court. Otherwise, a party litigant could indefinitely continue the existence of a stay order by merely delaying his application for writs.

Many of the cases construing La. Code Civ.P. art. 2004 have found an ill practice when the defendant makes no appearance because of an agreement with the plaintiff that the latter will forego action in the suit and the agreement is broken. See Collins v. Collins, 325 So.2d 773 (La.App. 2nd Cir.1976); Estelle J. Wilson Mortuary, Inc. v. Waker, 244 So.2d 630 (La.App. 4th Cir.1971). An intentional act need not be present, however, to find an ill practice. Succession of Trouard, supra.

Additionally, even if we conclude that the stay order included any and all writ applications, even to the Supreme Court, the fact that the trial judge had no knowledge that plaintiff had applied to the Supreme Court for writs when he proceeded to trial did not constitute an ill practice.

We conclude that the judgment below was not obtained by an ill practice, and affirm at plaintiff-appellant’s cost.

AFFIRMED.

      . If the trial judge in signing the stay order had intended the need for some affirmative action on his part to upset the stay order, he would not have appeared in court on the scheduled trial date.


author: ALFORD, Judge.

text:
    Dr. Rodney HIGGINS v. STATE of Louisiana, DEPARTMENT OF HEALTH & HUMAN RESOURCES d/b/a Charity Hospital of La. and Rockwood Insurance Company.
    No. 83 CA 0624.
    Court of Appeal of Louisiana, First Circuit.
    May 30, 1984.
    Rehearing Denied June 29, 1984.

      Leo Herrington, Baton Rouge, for plaintiff-appellee Dr. Rodney Higgins.
    A. Clay Pierce, Jr., Baton Rouge, for defendants-appellants State of Louisiana, Dept, of Health & Human Resources d/b/a Charity Hosp. of La. and Rockwood Ins. Co.
    Before LOTTINGER, EDWARDS and ALFORD, JJ.
   ALFORD, Judge.

This is an appeal from a judgment of the Nineteenth Judicial District Court, Parish of East Baton Rouge, on a rule to show cause. Plaintiff-appellee, Dr. Rodney Higgins, was awarded, among other items of damage, $37,464.00 for the non-professional nursing care rendered to him by his mother, Mildred Higgins, from January 11, 1980 — April 18, 1982, at the rate of $3.50 per hour.

The original trial on the merits in this case determined that Dr. Higgins, while an intern at Charity Hospital in New Orleans, contracted in the course and scope of his employment, viral encephalitis, rendering him permanently and totally disabled under Workmen’s Compensation.

Defendants-appellants, the State of Louisiana, Department of Health and Human Resources d/b/a Charity Hospital of Louisiana, and Rockwood Insurance Company, have appealed the judgment on the rule, specifying as error that (1) the District Court erred in failing to rule that the claim for nursing services rendered by Mrs. Higgins had been compromised by a previous stipulation and stipulated judgment (both filed August 10, 1982) and that, accordingly, their exception of res judicata should have been sustained, and (2) alternatively, Dr. Higgins failed to adequately prove his claim.

On August 10, 1982, the State entered into a stipulation with Dr. Higgins as to the payment by the State of certain medical expenses, including nursing services amounting to $8,435.00. Prior to this stipulation, Dr. Higgins had been awarded judgments for other nursing services on two occasions. The State contends that the August 10, 1982, stipulation for $8,435.00 was a compromise sufficient to bar, under the theory of res judicata, the subsequent demand for $58,719.50 for nursing services rendered by Dr. Higgin’s mother.

A compromise is an agreement between two or more persons, who, for preventing or putting an end to a lawsuit, adjust their differences by mutual consent. LSA C.C. art. 3071. As noted in the recent case of Smith v. Leger, 439 So.2d 1203, 1206 (La.App. 1st Cir. 1983):

A compromise agreement extends only to those matters which the parties expressly intend to settle. La.C.C. art. 3073; Matthews v. Melton Truck Lines, Inc., 310 So.2d 691 (La.App. 1st Cir. 1975). Ordinarily, the meaning and intent of the parties to a written contract (such as a written compromise agreement) must be sought within the four corners of the instrument and cannot be explained or contradicted by parol evidence. La.C.C. art. 2276; Tauzin v. Claitor, 417 So.2d 1304 (La.App. 1st Cir. 1982), writ denied, 422 So.2d 423 (La.1982). An exception to this rule exists when there is a dispute between the parties as to exactly what matters were intended to be settled by the compromise agreement. La.C.C. art. 3079; Moak v. American Automobile Insurance Company, 242 La. 160, 134 So.2d 911 (1961); Munna v. Mangano, 404 So.2d 1008 (La. App. 4th Cir.1981).

A compromise or transaction has, between the parties, the effect of a thing adjudged. LSA C.C. art. 3078. A release of a claim in exchange for consideration received is, in effect, a compromise which can constitute the basis of a plea of res judicata. Matthew v. Melton Truck Lines, Inc., 310 So.2d 691 (La.App. 1st Cir.1975).

The requisites necessary to sustain a plea of res judicata are enumerated in LSA C.C. art. 2286: “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.” The absence of any one of these elements is fatal to an exception of res judicata; further, res judicata is stricti jur-is and a second suit is not barred where there is any doubt as to the applicability of Article 2286. First Guaranty Bank v. Durham, 409 So.2d 380 (La.App. 4th Cir. 1982).

The record reveals that, although the charges for nursing services performed by Mrs. Higgins arose prior to the stipulation of August 10, 1982, that stipulation was not intended to — nor did it — encompass the services performed by Mrs. Higgins. Therefore, the State’s exception of res judicata was properly overruled because the thing demanded — the claim for the nursing services of Mrs. Higgins — had never been demanded previously.

The August 10, 1982, stipulation was a compromise of claims which included a demand for nursing services in the amount of $8,435.00. Although the total amount of these claims was compromised for less than originally demanded, the nursing services portion of that claim was settled for the same $8,435.00 amount.

The August 10, 1982, stipulation on nursing services in the amount of $8,435.00 was demanded by rule filed on May 12, 1982. The rule demanding $58,719.50 for the services of Mrs. Higgins was filed on November 12, 1982. It is hard to believe that, if the first claim did encompass services provided by Mrs. Higgins, that Dr. Higgins would not have asserted a claim for the greater amount, or that the first claim could have grown from $8,435.00 to $58,-719.50 from May of 1982 to November of 1982. In fact, the testimony of Mrs. Higgins on the subsequent rule and the records of Mrs. Higgins introduced into evidence indicate that the services of Mrs. Higgins charged for ended on April 18, 1982, which was even prior to the filing of the rule on May 12, 1982, for the $8,435.00 nursing services.

More importantly, we note that the same trial court judge who presided over the original trial and the subsequent rules in this case, and who was accordingly familiar with the previous charges for nursing services, found as a matter of fact on the hearing of the plea of res judicata that the court had never before considered the charge by Dr. Higgins for the particular services rendered by Mrs. Higgins. On this basis, the trial court judge properly overruled the exception of res judicata and the alternative plea of compromise. The well-established rule is that the factual determinations of the trial court are afforded much weight and are not to be disturbed on appeal absent manifest error. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

We further find that the State’s assignment of error that Dr. Higgins failed to adequately prove his claim is equally without merit, given the evidence introduced on the rule as to Mrs. Higgin’s time. Mrs. Higgins testified at the hearing on the rule, and was duly cross-examined by counsel for the State. We have read the record and are satisfied that the trial court judge ruled in accordance with the law and the evidence.

For the foregoing reasons, we affirm the judgment of the court below. All costs of this appeal are to be paid by defendants-appellants.

AFFIRMED.

      . In his brief, counsel for Dr. Higgins argues that the trial court erred in (1) failing to award the full amount sought for the non-professional nursing care services rendered by Dr. Higgin’s mother and (2) failing to grant Dr. Higgins penalties and attorney’s fees sought in connection with the subject rule. However, counsel for Dr. Higgins neither appealed nor answered the appeal to request such modification. Therefore, we cannot consider these items. LSA C.C.P. art. 2133.

      . The trial court awarded $37,464.00 for the nursing services of Mrs. Higgins.

      . Mrs. Higgins based her charges on records kept in her calendar contemporaneously with her work.


author: EDWARDS, Judge.

text:
    Lionel A. BERNARDI, Jr. v. Mary Ann Bernardi CHESSON.
    No. 83-CA-0649.
    Court of Appeal of Louisiana, First Circuit.
    May 30, 1984.

      Gerald A. Stewart, New Orleans, Charles Schrader, Houma, for plaintiff and appellant.
    Louis Heyd, Jr., New Orleans, for defendant and appellee.
    Before LOTTINGER, EDWARDS and ALFORD, JJ.
   EDWARDS, Judge.

This action calls for determination of the prescriptive period applicable to suits seeking rescission of community property partitions on the basis of lesion.

Lionel A. Bernardi, Jr., and Mary Ann Bernardi (now Mary Ann Bernardi Ches-son) were judicially separated on January 30, 1978. On April 4, 1978, the parties entered into a community property agreement. They entered into a supplemental community property agreement on April 25, 1978.

On December 30, 1982, Lionel Bernardi filed the instant action, seeking to set aside the community property agreements on the basis of lesion. Mary Ann Chesson’s exception of prescription was maintained by the trial court. The trial court concluded that the four-year prescriptive period of arts. 1876 and 2595 of the Louisiana Civil Code were applicable. Since plaintiffs suit was filed four years and eight months after the last settlement, the court concluded that his action had prescribed.

Lionel Bernardi has appealed the judgment of the district court. He contends that the trial court erred in failing to apply the five-year prescriptive period of art. 1413 of the Louisiana Civil Code.

The competing Civil Code articles relied upon by the parties to this action provide as follows:

“Art. 1413. Suits for the rescission of partitions are prescribed by the lapse of five years from the date thereof, and in case of error and fraud, from the day in which they are discovered.
“Art. 1414. This prescription, in case of lesion, runs against minors as well as against persons of age, when the partition has been made judicially and with all the forms prescribed by law.
“Art. 1876. Actions for lesion are limited to four years, to date from the time of the contract between the persons of full age, and from the age of majority in contracts of minors.
“Art. 2595. Actions for recission [rescission] of sales on account of lesion beyond moiety must be commenced within four years. These four years, with respect to minors, begin only from the day they become of age. With respect to persons of full age, they begin from the day of the sale.
“Art. 3542. The following actions are prescribed by five years:
“That for the nullity or rescission of testaments or other acts.
“That for the reduction of excessive donations.
“That for the rescission of partitions and guarantee of the portions.
“This prescription only commences against minors after their majority.”

The issue for determination is which of the above prescriptive periods is applicable to an action to rescind a partition of community property on the basis of lesion.

The Louisiana Fourth Circuit Court of Appeal was confronted with this identical problem in Cortez v. Cortez, 376 So.2d 517 (La.App. 4th Cir.1979). In Cortez, the husband brought an action to rescind a partition of community property more than four years, but less than five years, after the execution of the partition. The defendant wife filed an exception of prescription based upon the four-year prescriptive period of arts. 1876 and 2595. The trial court maintained the exception of prescription, but the court of appeal reversed, holding that the five-year prescriptive period of art. 1413 was applicable.

We find the Fourth Circuit’s reasoning in reaching that conclusion to be quite persuasive and quote from it extensively:

“In support of our conclusion we point out that Article 1413 is located in a chapter dealing exclusively with partitions and particularly Section 7 — Of the Rescission of Partition. The section begins with Article 1397 which provides that partitions may be rescinded for radical vices, and Article 1398, on account of lesion. The next article, 1399 provides for the application of rescission in the cases of minors, interdicts and absentees. The section then discusses the various rights which may be involved and concludes with Articles 1413 and 1414, ....
“The general format of that section and the wording of the latter two articles demonstrate an intention to specifically provide five year prescription for rescission of partitions based on lesion.
“The prescriptive article applying to lesion specifically is Article 1876.... This article is located in the title dealing with conventional obligations, Chapter 2 — Of the requisites to the formation of a valid agreement, § 10 — Of lesion. That section deals with all of the possible cases of lesion and sets out regulations governing them. Lesion is defined in Article 1860, and then those instances where persons of the age of majority and under no incapacity may seek relief are set out. Appellee argues that unless the prescription set out in Article 1876 was applicable to all of these cases, it would make no sense to include, for example, the section on partition found in Article 1861. We cannot agree. The section treats of all of the cases in which lesion may be applicable and Article 1876 sets out the prescription applicable generally. We consider that the intent of the Code is to provide a special exception to that general rule by the provision of the five year prescription for partition rescission.”

376 So.2d at 518, 519.

We agree with the Fourth Circuit’s conclusion that the prescriptive period of art. 1413 is controlling in actions such as this. However, appellee attacks the reasoning underlying the Cortez decision as faulty, noting that the section of the Civil Code which contains art. 1413 is located within a Chapter entitled “Of the Partition of Seccessions.” Appellee contends that the application of art. 1413 should be limited to suits seeking rescission of succession partitions. This argument lacks merit, however. Article 1308, located within the same Chapter, provides as follows:

“The action of partition will not only lie between co-heirs and co-legatees, but between all persons who hold property in common, from whatever cause they may hold in common.”

Clearly, therefore, the Civil Code rules on partition, although located within the section dealing with successions, have general application to all instances where there is co-ownership of property.

Appellee further argues that this court has already held that an action alleging lesion of a community property settlement is governed by the four-year prescriptive period of art. 1876. She relies upon the decision in Blount v. Blount, 385 So.2d 476 (La.App. 1st Cir.), cert. denied, 386 So.2d 358 (La.1980). Blount involved a suit by a former wife to enforce a community property settlement. The defendant former husband asserted that the agreement did not constitute a community property settlement and that it was invalid for lesion. Those defenses were rejected by the trial court and on appeal.

In rejecting the defense of lesion, this court made the following observation:

“The agreement can b"e attacked for lesion. Beatty v. Vining, 147 So.2d 37 (La.App. 2nd Cir.1962). C.C. Art. 1861(1). However, prescription has accrued by the lapse of four years. C.C. Art. 1876.”

385 So.2d at 477 (footnote omitted). Appel-lee relies upon this statement. She contends that Blount conclusively holds that a four-year prescriptive period is applicable to actions asserting lesion of a partition of community property.

However, an examination of the Blount decision reveals that there was no considered determination that the four-year prescriptive period was applicable. The facts of the case reveal that over ten years had elapsed between the execution of the property settlement and the litigation. Thus, the right to claim lesion would have prescribed no matter which of the prescriptive periods were applicable. The Blount decision did not require this court to determine whether the four or five-year prescriptive period was applicable and the language cited above is not a conclusive holding that the four-year period applies.

The instant case does call upon this court to decide the issue of the applicable prescriptive period. We adopt the reasoning of the Fourth Circuit in Cortez v. Cortez, supra, and hold that the five-year prescriptive period of art. 1413 of the Louisiana Civil Code applies to suits for the rescission of partitions based on lesion.

For the foregoing reasons, the judgment of the district court is reversed and the exception of prescription is overruled. This case is remanded to the trial court for further proceedings consistent herewith. Liability for costs is to be contingent upon final disposition.

REVERSED AND REMANDED.

      . The provisions of art. 3542 of the Louisiana Civil Code were re-enacted by Act. No. 173 of 1983 as art. 3497. No substantive changes were accomplished by that reenactment.

      . See, e.g., Bedwell v. Bedwell, 399 So.2d 685 (La.App. 1st Cir.1981), where this court applied the provisions of art. 1398 of the Louisiana Civil Code to an action by a former husband alleging lesion in a community property settlement.