author: WILLIAMS, Judge. GARRISON, Judge,

text:
    Dr. Gladys MILLINER v. Jesse L. TURNER, et al. Willene TAYLOR v. Jesse L. TURNER, et al.
    Nos. CA-0122, CA-0123.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 8, 1983.
    Rehearing Denied Sept. 22, 1983.

      Thomas W. Milliner, New Orleans, for plaintiffs-appellants.
    William J. Guste, Jr., Atty. Gen., Ronald C. Davis, Asst. Atty. Gen., Janice B. Un-land, Staff Atty., New Orleans, for defendant-appellee.
    Before GARRISON, BYRNES and WILLIAMS, JJ.
   WILLIAMS, Judge.

This appeal arises from a judgment against the Southern University of New Orleans (SUNO) and SUNO students Jesse L. Turner, Raymond Seraile and Michael Williams, granting plaintiffs an award of $1,000.00 each as a result of the students alleged defamation of plaintiffs’ reputations through written communications published in the SUNO Observer. The trial court held that Dr. Willene Taylor, the Head of the Humanities section at SUNO, was libeled when the newspaper articles described her as a “proven fool,” and Dr. Gladys Milliner was libeled when she was accused of being a “racist”. The trial court held that the term “racist” had profound significance in an almost totally black university community. From the judgment of the trial court in favor of the plaintiffs, only defendant SUNO has appealed.

The history of the case is as follows: in the January/February 1977 edition of the SUNO Observer several articles allegedly libeling Drs. Taylor and Milliner appeared. These same accusations were reprinted in an editorial fashion in the March/April 1977 issue of The Observer. The authors acknowledged in their editorials that legal action might be taken if this type of reporting were to continue. Subsequently, the plaintiffs filed suit against the student ■writers. The students third-partied SUNO. Approximately one year later, in the March/April 1978 issue of the SUNO Observer, the same articles and editorials were reprinted word for word. Additionally, Dr. Taylor had written a letter to the paper in an attempt to vindicate herself. Excerpts of her letter were published out of context ostensibly in order to give greater credence to the student writers’ allegations. The evidence at trial also showed that the writers may have intentionally re-printed the articles to coincide with the student government elections being held at that time, in which the defendant students were seriously involved.

The court held that plaintiffs’ public employment in a state university did not necessarily accord plaintiffs the rank of public official or public figure in a defamation action. The court also held that the statements made by the writers were defamatory per se, thereby relieving plaintiffs of the necessity of showing actual malice. Gertz v. Welch, 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974); New York Times Company v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). Judgment in favor of plaintiffs was, therefore, entered against all individual defendants. The trial court refused to award punitive damages and attorneys’ fees, although they would have been permissible under Civil Code Article 2315.1. The trial court reasoned that the damage to the plaintiffs was of a limited nature and punitive damages, if awarded, might have a chilling effect on the free expression of thoughts and ideas in a university community.

The trial court held SUNO Hable pursuant to the following provisions of Civil Code Article 2320:

... teachers and artisans are answerable for the damage caused by their scholars or apprentices, while under their superintendence. In the above cases, the responsibility only attaches, when the ... teachers ... might have prevented the act which caused the damage, and had not done it.

Additionally, the trial court held that SUNO had recklessly failed to provide adequate faculty guidance to the student paper as required in the Student Guide. The Guide required each student organization to have two faculty representatives as advis-ors for all their activities. While SUNO had appointed two faculty members to oversee the paper, this responsibility was never exercised by the designated faculty, and progress reports were never submitted to the university administration. Ultimately, the court held that SUNO had breached its duty to supervise The Observer staff and was therefore jointly and solidarily liable to plaintiffs for “damages growing out of the unlawful invasion of their right to be fairly treated by a favored forum in their professional environment.” (Trial Court Reasons for Judgment, p. 14). We find this holding by the trial court to be in error. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978); Canter v. Koehring Co., 283 So.2d 716 (La. 1973).

The First Amendment of the United States Constitution denies government power to exercise prior restraint on expression with regard to public areas, including state college campuses, because of its message, ideas, subject matter or its contents. U.S.C. Const. Amend. 1; Baughman v. Freienmuth, 478 F.2d 1345 (4th Cir. 1973); Solid Rock Foundation v. Ohio State University, 478 F.Supp. 96 (S.D.Oh.E.D. 1979). The First Amendment pre-empts and would take precedence over operation of La.Civ.Code art. 2320 with regard to a university’s right to and degree of control over its student publications. Indeed, the choice of the content of material to go into the paper is an exercise of editorial control and judgment, and regulation of this crucial process would be inconsistent with the First Amendment guarantees of free press. Mississippi Gay Alliance v. Goudelock, 536 F.2d 1073 (5th Cir.1976). The present situation is distinguishable from one in which a private newspaper, and its publisher, are involved in disseminating the news to the community or the public at large. The state may no more restrict the right of a private paper, or be held accountable for any libel it might publish, than can SUNO control or be responsible for possible libels published in its student paper. Joyner v. Whiting, 477 F.2d 456 (4th Cir.1973). The relationship between a university and its student newspaper is anomalous and cannot be compared with a publisher and its newspaper. The latter may exercise censorship to the fullest, as it deems commercially proper to do so, but the former is almost completely barred from censoring its student paper since that would be prior restraint and would impede the free flow and expression of ideas. Baughman, supra; Solid Rock, supra; Joyner, supra.

In Joyner, supra the editor of the student newspaper at a predominantly black university attacked the actions of the university’s president who had withdrawn financial support from the newspaper; suppressed its circulation; excised repugnant material; suspended its editors and/or required its imprimatur on controversial articles because the views of the student editors were abhorrent to the university administration. The United States Fourth Circuit Court of Appeals squarely held that colleges and universities are not immune from the sweep of the First Amendment. Therefore colleges and universities, like the state, cannot restrict speech or suppress a publication merely because its officials dislike the content of the editorial comment. The student editors in Joyner, supra, had published an editorial advocating racial discrimination, in the face of increasing white enrollment, to keep the black university black. This article alarmed the university administration, and it took restrictive and suppressive action. As distinguished from Joyner, supra, the administration at SUNO took little or no action regarding the publication of the Observer’s articles concerning plaintiffs. The action followed by SUNO was in reality the only permissible course of action they could have taken in view of our interpretation of the First Amendment. We hold, therefore, that SUNO is not liable to plaintiffs for the allegedly defamatory articles published by the student editors in the paper.

We are not faced with determining the correctness of the trial court’s judgment holding the student writers liable since they did not appeal that judgment. We find that the First Amendment of the United States Constitution would bar SUNO from exercising anything but advisory control over the paper, therefore, exempting the university from any liability or responsibility. Joyner, supra. Words may be harsh by some standards, but taken in context of the university community and its own publication, and even though they come perilously close to libel in its purest sense, it is still better to err on the side of the First Amendment freedoms rather than to stifle the creativity and criticisms of a student publication meant to encourage the development of writing skills and student expression in a learning environment.

For the foregoing reasons we reverse, as clearly erroneous, the trial court’s judgment finding SUNO liable under Civil Code Article 2320 and dismiss plaintiffs’ suit against the university.

REVERSED.

GARRISON, J., concurs.

GARRISON, Judge,

concurring.

I concur. Even college students may speak, write and publish freely.


source: Caselaw Access Project

author: FORET, Judge.

license: Public Domain

text:
    Clifford PRICE, et al., Plaintiffs-Appellees, v. STATE of Louisiana, LOUISIANA NATIONAL GUARD, Defendant-Appellant.
    No. 83-660.
    Court of Appeal of Louisiana, Third Circuit.
    July 27, 1983.
    Rehearing Denied Sept. 26, 1983.

      Tommy D. Teague and Charles E. Grey, Jr., Asst. Attys. Gen., Baton Rouge, for defendant-appellant.
    Voltz & Ware, Edwin 0. Ware, Gus Voltz, Jr., and Gus Voltz, III, John R. Hickman, Alexandria, for plaintiffs-appellees.
    Before GUIDRY, FORET and PICKETT, JJ.
   FORET, Judge.

MOTION TO DISMISS

The defendant-appellant, State of Louisiana, Louisiana National Guard, moves to partially dismiss the answer to appeal filed by the plaintiffs, Clifford Price, et al., as being an improper vehicle for appeal.

The plaintiffs in this matter are forty-two (42) owners of residential properties located from two to seven and one-half miles from Camp Beauregard, a Louisiana National Guard Training Center in Rapides Parish. The plaintiffs brought suit alleging that demolition exercises conducted at Camp Beauregard in 1976 and 1977 caused damage to their property.

In his reasons for judgment, the trial judge granted judgment in favor of twenty-six of the plaintiffs and dismissed the demands of the other sixteen plaintiffs. A judgment to this effect was signed on April 6, 1983. .

On April 13, 1983, the defendant-appellant, State of Louisiana, Louisiana National Guard, suspensively appealed the judgment rendered against the State and in favor of the twenty-six plaintiffs. No appeal was filed on behalf of any of the plaintiffs. On July 13,1983, counsel for the plaintiffs filed an answer to the appeal filed by the defendant-appellant. In the Answer to Appeal filed on behalf of the plaintiffs-appellees, the counsel for the plaintiffs not only sought to increase the awards to the twenty-six plaintiffs in whose favor the judgment was rendered but also attempted to have reversed the judgment dismissing the claims of the sixteen other plaintiffs.

The defendant-appellant has moved to dismiss that portion of the Answer to Appeal which attempts to reverse the decision of the trial court.

Code of Civil Procedure Article 2133 provides:

“An appellee shall not be obliged to answer the appeal unless he desires to have the judgment modified, revised, or reversed in part or unless he demands damages against the appellant. In such cases, he must file an answer to the appeal, stating the relief demanded, not later than 15 days after the return day or the lodging of the record whichever is later. The answer filed by the appellee shall be equivalent to an appeal on his part from any portion of the judgment rendered against him in favor of the appellant and of which he complains in his answer. Additionally, however, an appel-lee may by answer to the appeal, demand modification, revision, or reversal of the judgment insofar as it did not allow or consider relief prayed for by an incidental action filed in the trial court. If an ap-pellee files such an answer, all other parties to the incidental demand may file similar answers within 15 days of the appellee’s action.”

Article 2133 provides a vehicle by which an appellee may seek modification of a trial court judge by answering an appeal. The defendant-appellant appealed the trial court judgment as to the twenty-six plaintiffs in favor of whom judgments were granted against the defendant. The defendant-appellant did not appeal any portion of the judgment dismissing the claims of the other sixteen plaintiffs. Thus, these sixteen plaintiffs are not appellees as contemplated by Article 2133 and therefore must seek modification of the judgments against them by ordinary appeal. Ogaard v. Wiley, 325 So.2d 642 (3rd Cir.1975), Shel ton v. Aetna Casualty and Surety Company, 344 So.2d 406 (La.1976).

That portion of the Answer to Appeal which attempts to bring before this court the sixteen plaintiffs whose claims were dismissed in the trial court is hereby dismissed at their costs.

MOTION GRANTED.


author: BYRNES, Judge.

text:
    Ed LEWIS, Individually and as Administrator of the Estate of His Minor Child Reginald Joseph Lewis v. STATE of Louisiana, DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT.
    No. CA 0468.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 3, 1983.
    Rehearing Denied Sept. 22, 1983.

      Favret, Favret, Demarest & Russo, J. Paul Demarest, New Orleans, for plaintiff-appellee.
    Jesse S. Guillot, Philip K. Jones, Norman L. Sisson, Marshall W. Wroten, New Orleans, for defendant-appellant.
    Before GARRISON, BARRY and BYRNES, JJ.
   BYRNES, Judge.

This is a personal injury action. Reginald Lewis, minor son of Ed Lewis, plaintiff-ap-pellee herein, was injured when he fell into a concealed open manhole. Suit was brought against the State Department of Transportation and Development in the Civil District Court for the Parish of Orleans. The trial court held for plaintiff awarding $10,364.00 in damages and the Department of Transportation perfected this appeal.

FACTS

On May 27, 1979 at approximately 12:30 A.M. Reginald Lewis, was returning to his home at 9612 Palm Street after a dance at Warren Easton High School. Reginald and his friends approached the intersection of Tulane and Carrollton Avenues, commonly known as the Carrollton interchange. At the interchange, Tulane Avenue runs beneath Interstate 10 and above a grass median area. Reginald and his companions proceeded across the median as a short cut to Reginald’s house. Reginald was injured when he fell into an open manhole which was concealed from view by overgrown grass and weeds.

SPECIFICATION OF ERRORS

The State Department of Transportation and Development, defendant-appellant, specifies that the trial court erred in failing to conclude that:

1.) The proximate cause of the accident was Reginald’s negligence in entering a restricted area;
2.) The plaintiff’s injuries resulted from “victim fault”; and
3.) Reginald was a trespasser and should therefore be barred from recovery.

ERROR NO’S 1 & 2

By these assignments appellant contends that appellee’s injuries were caused by his own negligence in entering a restricted area. Appellant argues that the doctrines of Victim Fault and Assumption of the Risk should bar appellee from recovering damages for his injuries.

Plaintiff instituted this action under Civil Code Article 2317, which states in pertinent part:

We are responsible not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of the things which we have in our custody-

It is well settled that under Article 2317 the plaintiff must prove that a dangerous condition existed and that this condition was such that it “posed an unreasonable risk of injury to others and that his damage occurred through this risk.” Entrevia v. Hood, 427 So.2d 1146, 1148 (La.1983). Plaintiff must prove further that the area where the damage occurred was in the care and custody of the defendant at the time of the accident. Loescher v. Parr, 324 So.2d 441 (La.1975); Hall v. City of New Orleans, 400 So.2d 265 (La.App. 4th Cir.1981).

The record clearly establishes the following: 1.) a dangerous condition existed on the property: i.e. the concealed open manhole; 2.) plaintiff encountered this danger; 3.) the State Department of Transportation had control over the area and was responsible for cutting the grass and replacing missing manhole covers; and 4.) the area had been used by other pedestrians in the past. We find that the requirements of Article 2817 have been met and that the trial court was correct in determining that the concealed open manhole presented an unreasonable risk of injury to others.

The testimony at trial indicates that in order to gain access to the median where the injury occurred Reginald had to cross four Interstate 10 exit ramps and a set of railroad tracks. Appellant contends that in doing so, appellee violated LSA-R.S. 48:302 and 32:263(C) and thereby assumed the risk of any danger with which he may have been presented.

R.S. 48:302 provides in pertinent part:

No person has any right of access from or across controlled-access facilities to or from abutting lands except at the designated points at which access is permitted upon the terms and conditions specified from time to time.

R.S. 32:263(C), provides as follows:

The use of any Louisiana Interstate Highway by pedestrians, bicycles, or other non-motorized vehicles is prohibited.

In order to prove that plaintiff assumed the risk presented herein the Department of Transportation must show that: 1.) plaintiff knew and understood the risk; and 2.) he voluntarily chose to confront the risk. Dorry v. LeFleur, 399 So.2d 559 (La.1981). The record before us is barren of any such proof.

Plaintiff herein clearly violated R.S. 48:302 and 32:263(0) when he voluntarily crossed the exit ramps. Reginald knowingly confronted the risk of being injured by oncoming vehicular traffic, but, he did not confront the risk of falling into an open manhole. It is difficult to conceive how appellee could have consciously confronted a danger of which he had no prior knowledge and which was concealed from his view due to the State’s failure to properly maintain the area.

Accordingly we find that appellee’s injuries were not caused by victim fault and that he did not assume the risk of injury when he entered the median area.

ASSIGNMENT # 3

Appellant contends that Reginald’s status as a trespasser should bar his recovery in this matter. In their supplemental brief to this court, appellant cites the recent Supreme Court case of Entrevia v. Hood, 427 So.2d 1146 (La.1983), as authority for this argument. In that case, the Court found that a land owner was not responsible under Article 2317 for injuries occasioned by a trespasser. However, the Court in Entrevia made special mention of the fact that the owner’s property was completely remote, fenced off and clearly posted with “no trespassing” signs. These factors weighed heavily in the Court’s determination that there was no danger posed to the general public.

In the case at bar, the record establishes that the area is heavily traveled and the fence surrounding the median area did not completely enclose the property. The trial court noted that stanchions, which appellant contends warn pedestrians to keep out, do nothing more than create a dead end street, clearly prohibiting vehicular traffic but allowing pedestrian traffic. Further, the area was void of “no trespassing” or any other appropriate warning signs. Hence, the situation presented herein is completely different from that found in Entrevia.

In the present case the State has failed to take effective measures to cordon off the area in question. Since the cost of protecting the public in this instance is insignificant relative to the risk of injury to pedestrians, we find that the trial court correctly determined that appellee’s status as a trespasser should not bar his recovery herein.

CONCLUSION

Neither appellee’s actions nor his status as a trespasser should bar his recovery as the concealed open manhole posed a danger to the general public. •

For the above and foregoing reasons the judgment of the trial court is affirmed. All costs of this appeal are to be borne by appellant.

AFFIRMED.


author: CIACCIO, Judge. CIACCIO, Judge,

text:
    Charles HANSON v. LOUISIANA STATE RACING COMMISSION.
    No. CA-0579.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 3, 1983.
    Rehearing Denied Sept. 22, 1983.
    Raleigh Newman, Lake Charles, for plaintiff-appellant.
    William J. Guste, Jr., Atty. Gen., Robert A. Barnett, Staff Atty., John E. Jackson, Jr., Asst. Atty. Gen., New Orleans, for defendant-appellee.
    Before GULOTTA, CIACCIO and WILLIAMS, JJ.
   CIACCIO, Judge.

Charles Hanson appeals from a judgment of the district court affirming a decision of the Louisiana State Racing Commission. We affirm.

On May 7, 1982 the Stewards for Delta Downs in Vinton, Louisiana issued Order # 54 against the plaintiff, an owner and trainer of race horses. The Stewards found that Mr. Hanson had violated LAC 11-6:48 and they suspended him and revoked his privileges for the duration of the suspension. The matter was referred by the Stewards to the Louisiana State Racing Commission for whatever action they deemed necessary.

A hearing was conducted before the Commission on June 24, 1982. Following the hearing, the Commission voted, by a 3 to 2 margin, to affirm the Steward’s ruling. In addition, they revoked the plaintiffs trainer’s license for life and fined him $5,000.

On November 23, 1982 the district court affirmed the ruling of the Louisiana State Racing.

The sole issue presented on appeal is whether the district court erred in affirming the Louisiana State Racing Commission’s finding that Charles Hanson was guilty of fraud.

The appellant contends that his registration of the wrong horse at Delta Downs resulted from a mistake of fact and not from fraud.

When one is aggrieved by a final decision in an adjudication proceeding, he is entitled to judicial review under the Administrative Procedure Act. R.S. 49:964(A). See: Buras v. Board of Trustees of Police Fund of New Orleans, 367 So.2d 849 (La., 1979). Generally, the scope of review shall be confined to the record. See: Buras v. Board of Trustees of Police Fund of New Orleans, supra. The standard for the review of evidence in such cases is set forth in Allen v. La Salle Parish School Board, 341 So.2d 73 at 75 (La.App., 3rd Cir., 1977):

The jurisprudence of our state is abundantly clear that where an administrative agency or hearing body is the trier of fact the courts will not review the evidence before such body except for the following limited purposes: (1) to determine if the hearing was conducted in accordance with the authority and formalities of the statute; (2) to determine whether or not the fact findings of the body were supported by substantial evidence; and, (3) whether or not the hearing body’s conclusions from these factual findings were arbitrary or constituted an abuse of the hearing body’s discretion. Stewart v. East Baton Rouge Parish School Board, 251 So.2d 487 (La.App. 1st Cir.1971); Moffett v. Calcasieu Parish School Board, 179 So.2d 537 (La.App. 3rd Cir.1965); Barber v. Lake Charles Pipe and Supply Company, 148 So.2d 326 (La.App. 3rd Cir. 1962).

The reasonable discretion of the administrative body will not be set aside absent an abuse of discretion. Cannatella v. City Civil Service Commission of New Orleans, 381 So.2d 1278 (La.App., 4th Cir., 1980) writ den. 384 So.2d 793. The issue of credibility of witnesses is a matter addressed to the Commission and not for the court. Jacomet v. St. Landry School Board, 386 So.2d 1056 (La.App., 3rd Cir., 1980) writ den. 393 So.2d 745. However, the courts have the ultimate duty to determine whether the findings of the administrative body are supported by sufficient evidence. Jacomet v. St. Landry School Board, supra.

In the instant case, the district court, after review of the record, concluded that the Commission’s findings of fact were supported by the evidence and the legal conclusions were correct as a matter of law.

The Commission’s findings are as follows: “After considering the pleadings, evidence, witnesses and arguments of counsel, the Commission finds as follows:
That Charles W. Hanson, hereinafter known as Hanson, is a licensed owner/trainer under the jurisdiction of this Commission, license number 20750, issued at Delta Downs (Quarterhorse) Race Track on July 1, 1981.
That, as reflected by the license application, Charles W. Hanson agreed to abide by and obey the rules, regulations and conditions of the Louisiana State Racing Commission and the statutes and laws of the State of Louisiana.
That on and before April 15, 1982, Hanson was the owner/trainer of the horse FINISHED KAJUN which was entered in and scratched from the third race on April 15, 1982 at Delta Downs (Quarter-horse) Race Track.
That FINISHED KAJUN was scratched from the aforesaid race by the stewards because of violating rule LAC 11-6:48 of the Rules of Racing.
That the stewards conducted a hearing on April 15, 1982 and considered the horse inelligible until said matter was cleared up.
That the Racing Secretary received a temporary restraining order allowing Hanson.to enter FINISHED KAJUN in the Louisiana Breeders’ Laddie Futurity, which stayed the effects of the stewards’ action.
That documents and affidavits secured from the University of California reflected that the horse was improperly tattooed as FINISHED KAJUN.
That the horse improperly tattooed as FINISHED KAJUN was, in fact, DINNER AT EIGHT (purchased by Hanson on February 18, 1982), and not a Louisiana Bred Horse. Blood samples taken from said horse on April 14, 1982 further verified the identity of the horse as being DINNER AT EIGHT. The aforesaid race was restricted to only Louisiana Bred Horses.
That consequently, the temporary restraining order was dissolved and the horse, FINISHED KAJUN, was impounded and placed on twenty-four hour guard.
That another hearing of the stewards was called on May 6, 1982 to continue the matter of Hanson. Hanson was later advised that he would be suspended for fraudulently registering a horse and referred to the Louisiana State Racing Commission. Hanson was also informed that he would have to dissolve his stables immediately with bona fide transfers. That after the aforesaid hearing, the stewards handed down ruling number 54, dated May 7,1982, which charged Hanson with violation of LAC 11-6:48 which ruling suspended the trainer and his case referred to the Commission for whatever judgment they deemed necessary.
That the stewards were within their authority to issue ruling number 54 against Hanson and acted in accordance with law and the Rules of Racing and that Hanson was not illegally denied or deprived of any of his rights.
That Hanson registered the horse DINNER AT EIGHT as the horse FINISHED KAJUN, had knowledge of these facts, had the intent to do so and, therefore, violated LAC 11-6:48.”

We conclude, from our review of the record, that the trial court did not err in affirming the decision of the Louisiana State Racing Commission. Substantial evidence exists to support the findings of the Commission. The conclusion drawn from these findings by the Commission, namely that the defendant was guilty of violation of LAC 11-6:48, was not arbitrary and did not constitute an abuse of discretion.

Although the defendant argues that his registration of Dinner at Eight as the horse Finished Kajun resulted from a mistake of fact, the record supports a finding that the defendant possessed the requisite scienter needed for fraud.

The record reveals that on March 30, 1982, Charles Hanson presented foal papers of a horse that was to be “Finished Kajun!’ to the tattooer at Delta Downs. The horse was tattooed accordingly.

On April 12, 1982, Jockey Terry Layton gave a voluntary statement to the Louisiana State Police Criminal Intelligence Section wherein he revealed that the defendant told him that he was going to bring the colt “Dinner at Eight” to Delta Downs to run him as a Louisiana bred horse. Layton further stated that he had ridden the horse, Dinner at Eight, in Weatherford, Texas on March 19, 1982 and that he saw the same horse at Delta Downs on the previous Tuesday. He also stated that he had never ridden Finished Kajun but he knew that Hanson had purchased this horse and he understood that Dinner at Eight had been tattooed as Finished Kajun. Layton later testified to substantially the same facts before the Louisiana State Racing Commission.

The improperly tattooed horse was entered in the third race at Delta Downs for April 15, 1982, a race which was restricted to Louisiana bred horses.

A blood analysis, conducted by the University of California, on a sample extracted from this horse revealed that this horse was not the descendant of “Tuff Thought” and “Miss Spandeck” (the certified sire and dame of Dinner at Eight.)

Charles E. James testified that he bought a horse that he thought to be Dinner at Eight from the defendant on March 23, 1982. The horse subsequently died of unknown causes on March 31 or April 1, 1982. Mr. James became suspect that his horse was not Dinner at Eight when he was contacted by the Louisiana State Police. He stated that the horse had no markings and it was possible that the switch of horses resulted from a mistake. Mr. Norman L. Williams, the attorney for Mr. James also testified as to the similar appearances of the horses Dinner at Eight and Finished Kajun.

The defendant testified that the sale of the wrong horse, the erroneous tattooing and registration resulted because the two horses were very similar, having no markings nor scars.

The Commission is the trier of facts and is in the best position to evaluate the credibility of the witnesses. The commission was apparently impressed with Mr. Lay-ton’s credibility and chose to reject the contrary testimony of the defendant, Charles James and Norman Williams. We find no error in this regard.

There is no question that the ineligible horse, Dinner at Eight and not Finished Kajun was registered by Mr. Hanson at Delta Downs for a Louisiana bred only race. This fact coupled with the testimony of jockey Terry Layton and the other evidence contained in the record was sufficient for the Louisiana Racing Commission to conclude that Mr. Hanson’s registration of this horse was fraudulent and not an accident. Accordingly, we conclude that the district court did not err in affirming the decision of the Louisiana Racing Commission.

For the reasons assigned, the judgment of the district court is affirmed at appellant’s cost.

AFFIRMED.

ON APPLICATION FOR REHEARING

CIACCIO, Judge,

dissenting.

In his application for rehearing, Charles Hanson contends that this Court and The Louisiana State Racing Commission applied an improper standard of proof in this case in connection with a charge of fraud.

Although a preliminary case report prepared by the Criminal Intelligence Section of the Louisiana State Police indicated that the defendant told jockey Terry W. Layton that he intended to enter Dinner at Eight (an unqualified horse) in a race restricted to Louisiana-bred horses, these were not the facts testified to by jockey Layton at the Commission’s hearing.

Moreover, a further review of the record fails to indicate any testimony to the effect that the defendant said he was going to enter the ineligible horse in a race for Louisiana-bred horses only.

Mr. Hanson offered the defense of a mistake of fact, claiming that the horses were almost identical in appearance, that an honest mistake caused the wrong horse being delivered to the buyer and this defense was, in part, corroborated by the testimony of the buyer, Charles E. James, and his attorney, Norman L. Williams.

This court, in the recent decision of Kehel v. Yahfoufi, 433 So.2d 424 at 425 (La.1983), discussed the burden of proof required to establish a charge of fraud:

“The charge of fraud is a most serious one, thus the,one who alleges it has the burden of establishing it by legal and convincing evidence. Hall v. Arkansas-Louisiana Gas Co., 368 So.2d 984 (La., 1979); Marcello v. Bussiere, 284 So.2d 892 (La., 1973); Sanders v. Sanders, 62 So.2d 284 (La., 1952). Fraud is never presumed and must be established by exceptionally strong proof. Hall v. Arkansas-Louisiana Gas Co., supra; Sanders v. Sanders, supra. Fraud must therefore be proven by evidence which is stronger than a mere preponderance and a showing that fraud is probable or that the circumstances partake of a suspicious character is not sufficient. Sanders v. Sanders, supra.

Under these circumstances it would appear that the State failed to meet its burden of proving fraud.

Accordingly, for reasons expressed herein, I would grant the appellant’s application for rehearing.

      . LAC 11-6:48 provides: “48.1: Any person or persons fraudulently registering, or attempting to fraudulently register, a Thoroughbred with the Jockey Club of New York, a Quarter Horse with the American Quarter Horse Association, or an Appaloosa with the Appaloosa Horse Club, Inc., shall be denied a license, or have his license revoked. 48.2 The above penalties will also be applicable to any person or persons using, or attempting to use, fraud to certify a foal as an accredited Louisiana bred with organizations recognized by the Commission and the State of Louisiana. ...”


author: WILLIAMS, Judge.

text:
    STATE of Louisiana v. Anthony JUNAK.
    No. KA-0335.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 3, 1983.
    Rehearing Denied Sept. 22, 1983.

      Harry F. Connick, Dist. Atty. of Orleans Parish, Beryl M. MeSmith, Mary Charlotte McMullan, Asst. Dist. Attys. of Orleans Parish, New Orleans, for plaintiff-appellee.
    Cliffe F. Laborde, Gelpi, Sullivan, Carroll & Laborde, Richard B. Stricks, New Orleans, for defendant-appellant.
    Before GULOTTA, CIACCIO and WILLIAMS, JJ.
   WILLIAMS, Judge.

This is an appeal from a decision of a twelve person jury in the Criminal District Court of the Parish of Orleans finding defendant Anthony Junak guilty of second degree murder, in violation of La.R.S. 14:30.1. He was sentenced to life imprisonment without benefit of parole, probation, or suspension of sentence. Defendant originally assigned six errors committed by the trial court as a basis for reversal of his conviction. On appeal, six additional errors have been assigned.

FACTS

The following facts were adduced at trial by the prosecution. Defendant had been dating Robbie Jo Beavers for approximately one month. During this period, defendant and Ms. Beavers used drugs extensively, espécially Preludin. On February 19, 1981, defendant met Beavers at her house where they took Preludin. Later, he took her to the French Quarter in order to find Gary Rhodes. Rhodes had been telling people that defendant owed him fifty dollars for a ring defendant had purchased from him. Defendant told Beavers that he wanted to scare Rhodes. Defendant and Beavers found Rhodes about midnight and persuaded him to drive with them by promising him drugs and payment of the money. At one point defendant indicated that he wanted to shoot at trash. Beavers drove defendant’s car to a gravel road off Almo-naster Road. All three persons got out of the car. Defendant shot Rhodes three times. His body was discovered later that day. Beavers and defendant fled to Atlanta. They drove to California, but returned to Atlanta. Beavers called her father asking his help so that she could return home. She claimed that defendant had threatened her family with harm if she were to try and leave him. The pair were arrested by the Atlanta police. Beavers testified against defendant in exchange for immunity.

ASSIGNMENTS OF ERROR NOS. 1, 2, (Original), 1 and 2 (Supplemental)

The basis for these assignments of error is the denial by the trial court of the defense motion for the production of a statement made by Beavers to the police. This statement was furnished to defendant after trial under order of this Court.

The trial court examined Beavers’s statement in camera and determined that it contained no exculpatory material. The trial court ruled that if her testimony at trial should deviate from her statement, the statement would be given to the defense counsel for examination. This procedure clearly satisfies the requirements set forth in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). State v. Meriwether, 412 So.2d 558 (La.1982); State v. Daniel, 378 So.2d 1361 (La.1979).

Defendant claims that the statement should have been given to him because it is exculpatory because in it Beavers states that: (1) defendant intended only to shoot at debris, in support of the defense’s theory of an accidental shooting, and (2) she and defendant took methaqualone on the night of the murder, although at trial she testified that they took Preludin (the importance is the difference in the effect of the drugs and the ability of the defendant to form the requisite intent had he taken methaqualone).

In her statement, Beavers referred to the conversation that preceeded the shooting and stated that defendant was talking to the victim about shooting at cans. At trial, Beavers mentioned the conversation and stated that defendant said that he was going to shoot at the cans. Her statement is clearly not inconsistent with her testimony at trial, and the trial judge should not have made the statement available to the defense on this ground.

In her statement, Beavers alleged that she had taken only methaqualone [Quaaludes] on the night in question. She testified at trial, however, that she and defendant had taken Preludin. While this may have arguably been an inconsistency requiring defendant access to the statement, our review is limited to whether this inconsistency creates a reasonable doubt that did not otherwise exist concerning defendant’s guilt. State v. Davenport, 422 So.2d 1150 (La.1982). We cannot find that this inconsistency creates a reasonable doubt especially in light of the testimony of the defense expert, Dr. Richoux, who testified that the use of cocaine or methaqua-lone could possibly result in the same symptoms as the use of Preludin.

These assignments of error are without merit.

ASSIGNMENT OF ERROR NO. 3 (Original)

Defendant also alleges that error occurred by the admission of hearsay evidence at trial. The improper references to alleged hearsay evidence occurred during the state’s opening argument and during the testimony of Beavers. These references consisted of statements that the defendant owed the victim $50.00, indicating a motive in defendant’s attempt to “scare” the victim from telling anyone about the debt. Beavers testified that defendant had told her that he owed the victim money. An admission is an exception to the hearsay rule. State v. Lewis, 416 So.2d 921, 924 (La.1982); State v. Lockett, 319 So.2d 420 (La.1973); La.R.S. 15:434.

The other statements complained of as hearsay, are simply corroborative and cumulative of other testimony presented by witness Beavers, and their introduction is harmless error. State v. Darby, 403 So.2d 44 (La.1981); La.C.Cr.Pr. art. 921.

This assignment of error is without merit. ASSIGNMENT OF ERROR NO. 4 (Original) ■

Defendant also asserts as error that the state failed to prove defendant had the specific intent to commit second degree murder. Defendant argues that the testimony of Dr. Richoux as to the effects of Preludin as well as the testimony that defendant was under the effects of the drug at the time required that the jury find defendant incapable of forming the specific intent necessary for a second degree murder conviction. Richoux testified, however, that it is possible that Preludin would not preclude the forming of the requisite intent to commit a crime. This testimony was of such an equivocal nature, and in connection with Beavers’s testimony that defendant had planned much earlier in the day to find the victim, as well as their subsequent flight to Atlanta, there was sufficient evidence to convince the jury that the defendant was able to form specific intent and knew the logical consequences of his act.

This assignment of error is without merit. ASSIGNMENT OF ERROR NO. 5 (Original)

Defendant also argued that the prosecution failed to establish a causal link between the victim and himself based on the prosecution’s closing argument that the bullets in the victim’s body were .38 caliber. The basis for this argument is once again the testimony of Beavers that she carried a .45. As noted above, the caliber of the gun actually used in the murder was a fact question for the jury which obviously concluded that Beavers was mistaken. There is no error in this decision.

This assignment of error is without merit. ASSIGNMENTS OF ERROR NOS. '6 (Original) and 6 (Supplemental)

Defendant also argues that the trial court committed error in denying a motion for a new trial on the basis that “[t]he verdict [was] contrary to the law and evidence.” After viewing the evidence in a light most favorable to the prosecution and determining whether any rational trier of fact could have found the elements of the offense beyond a reasonable doubt, we cannot find that a rational trier of fact would not be able to find guilt beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Fuller, 414 So.2d 306 (La. 1982). Beavers’s testimony was undisputed. She testified that after she and defendant searched for the victim for a large part of the day, lured him into the car with promises of repayment of the debt and drugs, defendant shot the victim three times, and Beavers and defendant fled to Atlanta. Defendant also warned Beavers that she was to remain silent about seeing the crime.

These assignments of error are without merit.

ASSIGNMENT OF ERROR NO. 3 (Supplemental)

The defense argues that because the prosecution referred to the gun used by defendant as a .38 and Beavers called it a .45 caliber gun, the state must have evidence that the gun was a .38 caliber and, therefore, the state withheld exculpatory evidence.

No testimony was adduced at trial as to the caliber of the bullets recovered from the victim, and the gun was not produced; Beavers testified that it had been stolen. Beavers claimed at trial that the gun was a .45 caliber. In closing argument, however, the prosecution argued that the bullets recovered from the victim’s body were .38 caliber, and that Beavers was mistaken in calling the gun a .45.

It is arguable that this statement was improper because no evidence was introduced as to the caliber of the bullets. There was' no evidence introduced at trial to indicate that the state was in possession of exculpatory information. Nevertheless, a conviction should not be reversed on the basis of improper closing arguments unless the court is convinced that the remarks influenced the jury and contributed to the verdict. State v. Dupre, 408 So.2d 1229 (La.1982). In light of all of the evidence presented at trial, we cannot find that these statements influenced the jury and contributed to its verdict.

We cannot find that the defense has shown that the state withheld exculpatory evidence.

Furthermore, defendant argues that because of this discrepancy between Beavers’s testimony and the prosecutor’s statements, he should have been allowed access to her pre-trial statement. He does not allege any inconsistencies between the witness’s testimony and her statement and concedes that she claimed both times that the gun was a .45. We can find no reason on this basis for the trial court to have allowed defendant access to Beavers’s pretrial statement. See discussion, supra.

This assignment of error lacks merit. ASSIGNMENT OF ERROR NO. 4 (Supplemental)

Defendant also assigns as error that the prosecution made an alleged reference to defendant’s failure to take the witness stand. Such a reference requires an automatic mistrial under Article 770(3) of the Code of Criminal Procedure. In the context of the entire closing argument, it is clear that the language upon which the defense bases this argument refers not to the defendant, but to various people that the state could have called as witnesses.

This assignment of error is without merit. ASSIGNMENT OF ERROR NO. 5 (Supplemental)

Defendant also complains that trial counsel was incompetent and provided him ineffective assistance at trial. Claims of ineffective assistance of counsel are properly raised by application for a writ of habeas corpus at which time a full evidentiary hearing may be conducted. See La.C.Cr.Pr. art. 924 et seq.

This assignment of error is without merit.

For the foregoing reasons, the conviction and sentence of defendant are hereby upheld.

AFFIRMED.


author: KNOLL, Judge. STOKER, Judge, DOUCET, Judge,

text:
    Walter D. DUBOIS, Plaintiff-Appellant, v. EL DO CORPORATION, et al., Defendant-Appellee.
    No. 83-135.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 5, 1983.
    Rehearing Denied Sept. 29, 1983.
    Fuhrer & Flournoy, George A. Flournoy and Phillip Hunter, Alexandria, for plaintiff-appellant.
    MeLure & McLure, John C. Pickels, Alexandria, for defendant-appellee.
    Before STOKER, DOUCET and KNOLL, JJ.
   KNOLL, Judge.

This is a redhibition action brought by Walter D. Dubois against El Do Craft Boat Company, Inc. Dubois sought rescission of a sale of a 1980 boat and motor, damages for inconvenience, anxiety, compensation for the use of the purchase price and attorney’s fees. At the trial level the case was presented to a jury for determination, however, at the conclusion of plaintiff’s case the trial judge granted the defendant’s motion for a directed verdict, dismissing Dubois’ suit.

Dubois brings this appeal contending the trial judge erred in granting defendant’s motion for a directed verdict. At issue is whether the trial judge applied the wrong standard in granting the motion for a directed verdict.

FACTS

On June 20, 1980 Dubois purchased from Ed Cheek Marine, Inc. a fifteen foot El Do Craft boat, a Dilly boat trailer, a ninety horsepower Mercury outboard motor, a Mercury trolling motor, a depth finder, and other boat accessories for $6,100.00.

Dubois used the boat solely for recreational fishing. In May of 1981 after a fishing trip at Toledo Bend, Dubois noticed two 8-12 inch long cracks in the boat hull on the right front side. Ed Cheek Marine returned the boat to El Do for repair at no cost to Dubois. After the boat was repaired Dubois stored it until March of 1982 when he used it in a bass tournament in the Cane River.

After the tournament Dubois noticed cracks in the same area of the hull but, unlike the first set of cracks which ran horizontally, these ran longitudinally 2½-3 inches long. Dubois then tendered the boat to Ed Cheek Marine but El Do refused to repair the boat without payment. This lawsuit followed.

MOTION FOR DIRECTED VERDICT

In considering a motion for a directed verdict the standard to be applied depends on whether the case is a jury trial or a non-jury trial. In jury trials, the standard is set forth in Campbell v. Mouton, 373 So.2d 237 (La.App. 3rd Cir.1979) which adopted the standard enunciated in Boeing Co. v. Shipman, 411 F.2d 365 (5th Cir.1969), and given approval by the Louisiana Supreme Court in Breithaupt v. Sellers, 390 So.2d 870 (La.1980), which is as follows:

“On motions for directed verdict and for judgment notwithstanding the verdict the Court should consider all of the. evidence — not just that evidence which supports the non-mover’s case — but in the light and with all reasonable inferences most favorable to the party opposed to the motion. If the facts and inferences point so strongly and overwhelmingly in favor of one party that the Court believes that reasonable men could not arrive at a contrary verdict, granting of the motions is proper. On the other hand, if there is substantial evidence opposed to the motions, that is, evidence of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions, the motions should be denied, and the case submitted to the jury.”

In cases tried by a judge, the proper standard is a preponderance of the evidence. Bryan v. Varnado, 394 So.2d 1321 (La.App. 1st Cir.1981).

In granting the motion for a directed verdict in the present case, the trial judge in his oral reasons applied the preponderance of evidence standard which was error. However, this case is a proper case for the granting of a directed verdict because it passes the Campbell standard, supra.

In Theriot, et al. v. St. Martin Parish School Board, et al., 434 So.2d 668, a case from this court involving a like issue, this court stated:

“The application of the ‘preponderence of the evidence’ rule by the trial court was error. Campbell v. Mouton, supra, specifically held that a trial court erred in applying the standard of ‘preponderence of the evidence’ in deciding a motion for a directed verdict.
The standard set forth in Campbell can be summarized as follows: A directed verdict can be granted only if the facts and inferences point so strongly and overwhelmingly in favor of one party that the court believes that reasonable persons could not arrive at a contrary verdict. With this standard in mind we examine the evidence presented by plaintiff.”

Turning to plaintiffs evidence in the case at hand we find that the record is void of any evidence that would render El Do Craft liable for the cracks in Dubois’ boat. The fact that El Do manufactured the boat would not of itself make it liable for cracks that appeared in the boat hull almost one year and two years respectively from the date of purchase. Dubois would have to show that the hull was defective before he bought the boat and in absence of such a showing El Do cannot be held liable. On this point there is no evidence. In essence, plaintiff’s evidence establishes the cracks in the boat hull but does not show what caused the hull to crack.

The trial judge noted in his oral reasons that Dubois failed to prove that the boat was defective in May of 1980, the date of purchase, and further determined that the plaintiff failed to prove any damages. We find the record supports the trial judge’s conclusions.

In order for Dubois to be successful he has to prove the defect existed in the boat before the sale was made. If the defect would have appeared within three days immediately following the sale there would have been a presumption that the defect existed before the sale. LSA-C.C. Art. 2530 provides:

“The buyer who institutes the redhibitory action, must prove that the vice existed before the sale was made to him. If the vice has made its appearance within three days immediately following the sale, it is presumed to have existed before the sale.’’

In view of the amount of time that elapsed from the date of sale to the appearance of the first set of cracks in the hull, Dubois is not favored with this redhibitory presumption and he must prove the existence of redhibitory defects at the time of sale. We find that there is no evidence of redhibitory defects at the time of sale.

We further find that in considering all of the evidence, in the light and with all reasonable inferences most favorable to Du-bois, the facts and inferences point so strongly and overwhelmingly in favor of El Do Craft, that reasonable persons could not arrive at a contrary verdict. Therefore, the granting of the directed verdict by the trial judge was proper.

The judgment of the trial court is affirmed, assessing the plaintiff-appellant with all costs of this appeal.

AFFIRMED.

STOKER, J., concurs with written reasons.

DOUCET, J., dissents with written reasons.

STOKER, Judge,

concurring.

I concur in the affirmance of the trial court’s granting of the directed verdict. As the majority opinion notes, existence of a defect at the time of sale is a necessary predicate for the redhibitory action. LSA-C.C. art. 2530. Nevertheless, it is not necessary to establish the exact or underlying cause of the defect, and the defect may be established circumstantially. Rey v. Cuccia, 298 So.2d 840 (La.1974). Despite these rules favoring consumers, i.e., buyers, the vice or defect must exist at the time of sale. Considering the facts and circumstances of this case, especially the elapse of time to which the majority opinion alludes, the cracks in plaintiff’s boat could not be said to have existed at the time of the sale except on a basis of speculation or conjecture. Inasmuch as the trier of fact may not base a finding of fact on speculation or conjecture, the jury in this case had no evidence before it linking the defects to the time of sale.

DOUCET, Judge,

dissenting.

The majority opinion in effect holds that the plaintiff in a redhibition action may not establish his case by lay testimony. Inasmuch as I believe the buyer established a prima facie case by showing normal use in the intended manner, thereby precluding a directed verdict, I respectfully dissent.

Preliminarily, whether the plaintiff was to prevail on the merits after full adjudication whereat the defense could produce expert testimony concerning the fitness of their fiberglass hull is of no moment when addressing the propriety of a directed verdict under the circumstances herein. It suffices that plaintiff established a prima facie case by lay testimony.

Plaintiff purchased the boat solely for fishing. He took excellent care of the boat and had no problems with it until the latter part of May or early part of June 1981, when he and Larry Rhosto had gone on a fishing trip to Toledo Bend. Both Rhosto and plaintiff candidly admitted that on that particular trip to Toledo Bend, they undoubtedly bumped into and eased around stumps and underbrush in fishing the shallow arms of the lake. However, Rhosto, who was driving the boat, said that he was very careful in these areas where he knew there were stumps and underbrush and that he handled the boat in negotiating these areas just as he would his own boat, that is, by going very slow and idling through these areas. Rhosto and plaintiff testified that they did not hit any underwater object with any force or while going at any speed. Plaintiff admitted he has at times operated the boat over submerged stumps and logs — a forseeable usage. When they got home from Toledo Bend that evening, plaintiff observed two cracks in the hull of the boat on the right front side. According to plaintiffs, one crack measured about eight inches and the other about twelve inches. The cracks ran parallel and lengthwise of the boat.

Thereafter, Dubois returned the boat to Ed Cheek Marine. Steve Berry, the manager, examined the cracks. He took out his pocket knife and actually stuck it through each crack in the fiberglass hull. Cheek Marine returned the boat to the manufacturer for repair. When Mrs. Dubois talked to the manufacturer’s plant manager, while the boat was being repaired in Arkansas, she was assured that the hull was fixed and that it would never crack in the same area again.

The boat was returned approximately three months later however, because hunting season was beginning, plaintiff did not use his boat again until March 1982. During this time he kept it covered under his carport. The next time he used the boat was in March when he and Randy Skains participated in a bass tournament on Cane River. Plaintiff was very familiar with the particular area of Cane River that he fished. Plaintiff testified that on that day on Cane River, not only did he not run into any stump or submerged object while going at any speed, he did not even bump into or slide over a submerged object while going very slow or idling. The next day while hooking up the trailer lights to his truck, he found another crack in the exact same area of the hull as the two previous cracks however, this time the crack ran the width of the boat and was 2½ to 3 inches long. Wood was found lodged in the crack.

Subsequently, plaintiff returned the boat to Ed Cheek Marine to have it fixed. Mr. Berry again inspected it, took his knife out and was able to stick the blade through the crack in the hull. Plaintiff left the boat at Ed Cheek Marine, but the manufacturer refused to make any further repairs without payment. Mr. Dubois has been without the use of the boat ever since.

La.C.Civ.Pro. Art. 1810 provides for directed verdicts at the close of plaintiff’s evidence. The standard for application of said article was set forth by this court in Campbell v. Mouton, 373 So.2d 237 (La.App. 3rd Cir.1979) as follows:

“Moreover, since the source of LSA-C. C.P. article 1810A is the Federal Rules of Civil Procedure, we believe that the correct standard is that applied in the Federal Courts. See Madison v. Travelers Insurance Company, 308 So.2d 784 (La. 1975). This standard is succinctly stated in the following language penned by the U.S. Fifth Circuit Court of Appeal in Boeing Co. v. Shipman, 411 F.2d 365 (5th Cir.1969):
'On motions for directed verdict and for judgment notwithstanding the verdict the Court should consider all of the evidence — not just that evidence which supports the non-mover’s case — but in the light and with all reasonable inferences most favorable to the party opposed to the motion. If the facts and inferences point so strongly and overwhelmingly in favor of one party that the Court believes that reasonable men could not arrive at a contrary verdict, granting of the motions is proper. On the other hand, if there is substantial evidence opposed to the motions, that is, evidence of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions, the motions should be denied, and the case submitted to the jury.’ ”

In considering a Motion to Dismiss after plaintiff had presented his evidence, the trial judge must weigh and evaluate all of the evidence presented up to that point and grant the dismissal if plaintiff has not established proof by a preponderance of evidence. Standard Machine & Equipment Co. v. Southern Pacific Transportation Co., 410 So.2d 842 (La.App. 3rd Cir.1982). Stated otherwise, a directed verdict may be granted only if the facts and inferences are so overwhelmingly in favor of the moving party that the court believes reasonable men could not arrive at a contrary verdict. Oppenheim v. Murray Henderson Undertaking Co., Inc., 414 So.2d 868 (La.App. 4th Cir. 1982); Campbell v. Mouton, supra. See also: Rougeau v. Commercial Union Ins. Co., 432 So.2d 1162 (La.App. 3rd Cir.1983). In determining the propriety of a motion for summary judgment, facts and inferences must be viewed m a light most favorable to plaintiff. Grimes v. Stander, 394 So.2d 1332 (La.App. 1st Cir.1981); Campbell v. Mouton, supra.

Where the alleged defect manifests itself over three days after the sale is perfected the burden is on the plaintiff to establish that the defect existed at the time of the sale. La.Civil Code Art. 2530. However, it is not necessary that the plaintiff prove the exact cause of the defect; he need only show that a defect in fact existed. Domingue v. Whirlpool Corp., 303 So.2d 813 (La.App. 3rd Cir.1974); Gamble v. Bill Lowrey Chevrolet, Inc., 410 So.2d 1155 (La.App. 3rd Cir.1981); Edelman Systems, Inc., v. Capitol GMC, Inc., 345 So.2d 99 (La.App. 1st Cir.1977); Moreno’s, Inc. v. Lake Charles Catholic High School, 315 So.2d 660 (La. 1975).

The plaintiff is not required to prove his case by expert testimony; a prima facie case is established upon showing that the defect appeared during normal use and that the thing sold was properly maintained. Rey v. Cuccia, 298 So.2d 840 (La.1974); Magee Motors, Inc. v. Moran, 393 So.2d 757 (La.App. 1st Cir.1980). As stated in Clinkscales v. Superior Pontiac-GMC, Inc., 365 So.2d 895 (La.App. 4th Cir.1978):

“Our settled law is that a plaintiff need not introduce expert testimony to prove the underlying cause of an alleged malfunction, but need only prove the defect or malfunction existed at the time of the sale.2 In Mattes v. Heintz [69 So.2d 924 (La.App.1954) ],3 this court said:
“... The language of LSA-C.C. art. 2530 does not mean that the buyer must prove by eyewitnesses the existence of the vice before the sale, or that such a vice was known to exist. The court may take into consideration such surrounding circumstances as may appear and deduce therefrom the fact of the existence of the vice prior to the sale.”
The Supreme Court in Rey v. Cuccia,4 made the following statements:
“If the defect appears within three days following the sale, it is presumed to have existed before the sale, Article
2537. However, even where the defect appears more than three days after the salé (as here, when it appeared on the second day of use, but ten days after the sale), if it appears soon after the thing is put into use, a reasonable inference may arise, in the absence of other explanation or intervening cause shown, that the defect existed at the time of the sale.” (footnotes omitted)

Thus a reasonable inference may arise, in the absence of intervening cause or other explanation, that the defect existed at the time of the sale. Sweeney v. Vindale Corp., 574 F.2d 1296 (5th Cir.1978). Plaintiff was not required to prove by expert testimony that the boat was built improperly.

Viewing the facts in a light most favorable to appellant, as required by Campbell and progeny, I believe that the plaintiff established a prima facie case. He and his fishing partners testified that they did not hit any underwater object with any force or while going at any appreciable speed. All parties testifying indicated that plaintiff took good care of the boat. Appellant established that the defect appeared while using the boat in the intended manner under conditions of normal use. Defendant contends that the cracks in the hull were the result of plaintiff’s abuse and that the craft exceeded manufacturing standards, however, reasonable minds could reach conflicting results from the evidence presented thus far in the proceedings. Accordingly, the directed verdict should be reversed and the case remanded for further proceedings.

For the reasons assigned hereinabove, I respectfully dissent.

DISSENT.


author: GARRISON, Judge,

text:
    STATE of Louisiana v. Peter LEITCH.
    No. K-1109.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 8, 1983.
   ORDER TO DISMISS

On June 27,1983 the Trial Judge granted the State until July 8 to file this writ application. On July 13 the State orally moved and was granted an extension.

Although the trial court may grant an extension under Rule 4-3, it may not do so after the original time for applying has expired. See State v. Sutton, 374 So.2d 1218 (La.1979); State v. Mandino, 352 So.2d 233 (La.1977).

Further, we find relator’s application is without merit but we dismiss for the foregoing reason.

THEREFORE, this writ application is dismissed.

DENIS A. BARRY, J.

WILLIAM H. BYRNES, III, J.

GARRISON, J., dissents.

GARRISON, Judge,

dissenting:

In my regard, there was indeed probable cause to arrest Leitch. Relator's application was meritorious in that the extension of time, within which to file the application, did not exceed the judge’s discretion.


author: BOUTALL, Judge.

text:
    Annie Breaux, wife of/and Ted L. WEDEKIND v. Lillyan Leola Sears COOK, Stuart E. Cook, Leola R. Cook, Taylor Pest Control, Engel Mortgage Co., Inc., Bellefonte Insurance.
    No. 83-CA-295.
    Court of Appeal of Louisiana, Fifth Circuit.
    Aug. 8, 1983.

      Steve F. Griffith, Destrehan, for Anne Breaux, Wife of/& Ted L. Wedekind, plaintiffs-appellants.
    Jarrell E. Godfrey, Jr., Chaffe, McCall, Phillips, Toler & Sarpy, New Orleans, for Stuart E. Cook, et al., defendants-appellees.
    Before BOUTALL, GAUDIN and GRISBAUM, JJ.
   BOUTALL, Judge.

Plaintiffs appeal from a judgment of the trial court granting defendant Stuart E. Cook’s Motion for Summary Judgment in this suit for redhibition arising out of the sale of real property. We reverse and remand on finding that defendant appellee was not entitled to summary judgment as a matter of law, and that the defendant’s appearance as vendor in the Act of Sale, which contained full warranties, raised a material issue of fact when considered with an earlier Act of Sale which defendant submitted in support of his motion for summary judgment.

Plaintiffs-appellants Mr. and Mrs. Wede-kind purchased a house and four lots from the defendants, Lillian L.S. Cook, her son Stuart Cook, and her daughter Leola Cook Prunty. The suit in redhibition alleges that the house has termites, defective wiring and sewer hook-ups, in addition to flooding when it rains and suffering from a variety of other problems which were allegedly not made known to the purchasers.

The Act of Sale was passed on June 9, 1978. In the act Stuart Cook, along with the other two defendants, appears as a vendor. All three defendants were represented in the sale by the same attorney acting as their agent.

Suit was filed by plaintiffs on June 1, 1979. After answering, defendant Stuart Cook filed a motion for summary judgment. Accompanying the motion was an affidavit stating that at the time of the sale on June 9, 1978, he had no interest in the property in question. He further swore that on October 23, 1958 he had executed an Act of Sale of the property in favor of his mother. A copy of the prior Act of Sale was attached to the affidavit. Additionally, the affidavit goes on to state that defendant-appellee signed a Power of Attorney on May 31, 1978 appointing Gloria Menge as his agent and attorney solely for the purpose of insuring title to the property.

Plaintiffs-appellants did not traverse defendant’s affidavit as provided for by La.C. C.P. Art. 967. Rather they filed a motion in opposition to summary judgment, arguing the well-established principle of law that parol evidence will not be admitted to vary the terms of an authentic act.

The trial judge granted defendant Stuart Cook’s motion for summary judgment and the plaintiffs have appealed.

Appellants contend on appeal that the trial court erred in granting the summary judgment based on parol evidence by way of affidavit which had the effect of varying the terms of the 1978 act of sale. Appellee, on the other hand argues that appellants’ failure to traverse the affidavit submitted in support of summary judgment resulted in summary judgment being correctly granted on uncontradicted facts as provided for in La.C.C.P. Art. 967.

We do not reach either of these issues, because we hold that the document submitted in support of summary judgment, namely the 1958 Act of Sale, raised a material issue of fact when considered in conjunction with the 1978 Act of Sale, and additionally that summary judgment as provided for under La.C.C.P. Art. 966 was inappropriate as a matter of law under the facts of this case.

Article 966 provides in pertinent part as follows:

“The motion for summary judgment shall be served at least ten days before the time specified for the hearing. The adverse party may serve opposing affidavits prior to the date of the hearing. The ■judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.”

In our view, when the two acts of sale are considered together, an obvious question of fact is raised as to who held title to the property in question at the time of the 1978 sale. Furthermore, with or without inclusion of the affidavit mentioned above, there are overriding rules of law on the rights as between vendors and vendees which defeat the defendant-appellee’s entitlement to summary judgment in the instant case.

Louisiana Civil Code Articles 2475 and 2476 set forth the general warranties by which a seller is bound:

“Art. 2475. Seller’s obligations of delivery and warranty.
The seller is bound to two principal obligations, that of delivering and that of warranting the thing which he sells. “Art. 2476. Warranty against eviction and against latent defects.
The warranty respecting the seller has two objects; the first is the buyer’s peaceable possession of the thing sold, and the second is the hidden defects of the thing sold or its redhibitory vices.”

There is recent jurisprudence construing these articles to the effect that when a vendor appears in an act of sale affording full warranties, he is unequivocally bound by those warranties. See Roth v. B & L Enterprises, 420 So.2d 1094 (La.1982). The Roth case involved a sale of real property wherein the notary chosen by the buyer to handle the sale absconded with the purchase money instead of paying off liens on the property; liens of which seller had knowledge and buyer did not. The Court held that by virtue of codal warranties, particularly the Art. 2501 warranty against eviction or hidden encumbrances, the seller was liable.

The court in Roth, supra, in its discussion of codal warranties, used broad language which we think applies to the instant case.

“The vendor, in a sale made with express full warranties, warrants his vendee against any undeclared and nonapparent mortgages, privileges, or other charges that burden the property at the time of sale. [Citations omitted]. A vendor can only be relieved of his obligation by a stipulation to the contrary in the act of sale... . C.C. 2475 obligates a seller to deliver and to warrant the object that he sells. Here the act of sale recited that the sale was made with full warranties .... The buyer is entitled, as between himself and his seller, to rely upon the deed as written.” [Citation omitted].

Ibid at 1098. Though we are not here dealing with a warranty against encumbrances, the holding in Roth, supra, bears on the case now before us. The Act of Sale wherein appellee Stuart Cook appeared as vendor contained in pertinent part the following language:

“[Vendor], who declared that he does by these presents, sell, convey, and deliver, with full guaranty of title....
By reference to the certificates of the Register of Conveyances and Recorder of Mortgages in and for the Parish of Jefferson, annexed hereto, it does not appear that said property has been heretofore alienated by the vendors or that it is subject to any encumbrance whatever.” Further the act of sale here contains no

language limiting the seller’s warranties provided by the Civil Code.

We think that the warranty provided by La.C.C. Art. 2475 encompasses the buyer’s right to rely on the fact that a vendor appearing in an act of sale is indeed a vendor and as such is bound by the codal obligations of warranty quoted above. Therefore, as between vendor and purchaser, other evidence that may alter the terms or content of the warranty granted in the original act of sale creates a question of fact that should be resolved at trial. We need not decide here whether such evidence may be admissible on trial or which party may prevail.

Additionally we point out that the present act of sale contains a “complete transfer and subrogation of all rights and actions of warranty against all former proprietors of the property herein conveyed.” It is undisputed that Stuart Cook is at least a former proprietor and may be subject to this action as such.

For the foregoing reasons the judgment appealed from is reversed, the motion for summary judgment of defendant-appellee Stuart Cook is dismissed, and the case is remanded for further proceedings as may be appropriate. Costs of this appeal to be assessed on final decision.

REVERSED.


text:
    Adrian J. PERRILLOUX v. GODCHAUX-HENDERSON SUGAR CO., INC.
    No. 83-CA-288.
    Court of Appeal of Louisiana, Fifth Circuit.
    Aug. 8, 1983.
    Writ Denied Nov. 4,1983.

      Mathew Welmas & Joseph J. Lowenthal, Jr., Jones, Walker, Waechter, Poitevent, Carrere & Denegre, New Orleans, for God-chaux-Henderson Sugar Co., Inc., defendant-appellant.
    Robert R. Faucheux, Jr., Reserve, for Adrian J. Perrilloux, plaintiff-appellee.
    Before BOUTALL, GAUDIN and GRISBAUM, JJ.
   BOUTALL, Judge.

This is a workmen’s compensation case. From a judgment in favor of the employee, the employer appeals. We reverse.

Adrian J. Perrilloux, an eighteen-year-old manual laborer, filed suit on May 7, 1981, against his employer, Godchaux-Henderson Sugar Company, Inc. (Godchaux), for “maximum” workmen’s compensation benefits of $164.00 per week, alleging permanent total disability for a back injury. The petition recites that the appellee accidentally injured his back while lifting 110-pound bags on January 10, 1981, and alleges that he is unable to undertake any gainful employment.

Trial was held before a judge on April 2, 1982 following which both parties took depositions of physicians who had seen the ap-pellee. On September 3, 1982, the judge rendered and signed a judgment with written reasons. The judgment found in favor of the employee and against the employer “for temporary total disability for a maximum amount of time of 25 weeks with credit for periods in which he may be employed for impairment and pain at the rate of One Hundred Forty-one Dollars ($141.00) per week.” The judgment further cast the employer for all medical and rehabilitation expenses through July 17, 1981.

The issue before this court is whether or not the decision of the trial judge was manifestly erroneous. The appellant asserts that: 1) there is no factual basis for the award of compensation; 2) the legal basis for the decision is manifestly erroneous; and 3) the award is incomprehensible and bears no relationship to the evidence.

It is elementary in workmen’s compensation cases that a claimant must show that he was injured in a work-related accident. LSA-R.S. 23:1031. Gorbach v. Prager, Inc., 310 So.2d 604 (La.1975). The court in Elie v. St. Paul Fire & Marine Ins. Co., 408 So.2d 297 (La.App. 3rd Cir.1981) set forth the requirements for recovery, as follows, at 299:

“The claimant has the burden of proving to a legal certainty and by a reasonable preponderance of the evidence that he is disabled. Guidry v. Ford, Bacon & Davis Construction Corp., 376 So.2d 352 (La.App. 3rd Cir.1979); Soileau v. Bituminous Casualty Corporation, 348 So.2d 1313 (La.App. 3rd Cir.1977); Hamilton v. Georgia Pacific Corp., 344 So.2d 400 (La. App. 1st Cir.1977). The issue of whether or not he has carried this burden must be determined by examining the totality of the evidence, including both lay and medical testimony. Guidry v. Ford, Bacon & Davis Const. Corp., supra; Crawford v. Al Smith Plumbing & Heating Service, Inc., 352 So.2d 669 (La.1977).”

The manifest error rule is applicable to appellate review of workmen’s compensation cases. Meeks v. State Farm Fire & Cas. Co., 402 So.2d 138 (La.App. 1st Cir. 1981).

At the outset we note that the actual date of the accident is a matter of dispute between the parties. The only written notice to the employer was of an accident on September 3,1980, which occurred while the employee was handling heavy sugar bags. The trial judge accepted January 10, 1981 as the date of the accident, and also as the last day of employment. In his reasons for judgment the trial judge explained:

“Regardless of Plaintiff’s difficulty in reciting the date of this accident, his Petition alleges that it occurred on the 10th day of January, 1981, which is also the date testified to by Dr. Waguespack (page 28, line 13 of his deposition) and great weight must be attached to the treating physician’s notes as being more accurate than the memory of the Plaintiff many months later.
“Plaintiff was initially seen by the La-Place Medical Center and treated by S.J. St. Martin, M.D., who treated him for a period of several weeks, wherein upon advising that he should return to employment. Plaintiff continued to have pain in his back and legs and sought independent medical care from C.A. Montegut, M.D., for an extended period of time. Subsequently, the Plaintiff, because of his complaints of pain was unable to maintain employment and stopped working on January 10, 1981, and did not return to employment with the Defendant thereafter....”

We find that the judge’s determination of the facts is not supported by the record.

Although his testimony was vague and conflicting as to dates, the plaintiff admitted that he reported only one accident, which occurred in September, 1980. A company accident report September 3, 1980, was introduced into evidence, and the date was confirmed by Roy Vignes, industrial supervisor of Godchaux, and by that of Debra Verdón, claims representative of Central Claims Service, which handles all Godchaux’s injury claims.

The court gave undue weight to the deposition testimony of Dr. Roland S. Wagues-pack, as he himself expressed uncertainty:

“Q. Doctor, did Mr. Perrilloux indicate to you in his history on June 5, 1981, the exact date of this accident?
A. I have a question marked by the date and I have January 10, 1981, so it would be approximate.”

The appellee’s testimony regarding dates was unreliable. For example, he stated in the deposition that he began work at God-chaux on either June 6 or July 6, 1980, and that he had worked there about eight months when he had an accident in September, 1980. When asked later if he filed the accident report in September, 1980, he said, “Yes, somewhere around there. Maybe January.” When asked again if he was definite that his only accident was in 1980, he replied, “Yes, somewhere around there ... September or October.”

While Dr. Waguespack did treat Perril-loux over a long period of time, he began seeing him in June, 1981. Other physicians, Dr. K.E. Vogel, and Dr. Don R. Guzzetta saw him earlier, in April, and reported that the appellee said he was injured in September, 1980. Clearly, the record does not support the occurrence of an accident on January 10, 1981.

We next consider whether, if an accident resulting in injury did occúr either in September 1980 or later, the appellee was disabled under the Louisiana Workmen’s Compensation statute, LSA-R.S. 23:1021 et seq. An earlier accident may result in a later disability coming into being.

The trial judge’s finding that the plaintiff stopped working on January 10, 1981 because of pain is refuted by personnel records which indicate he was on the job as late as February 26, 1981. A “Trial Period Check-up” report introduced into evidence by Godchaux demonstrates that Perrilloux worked in the “wet bin” as a granulated laborer trainee until he was disqualified from training on February 8, 1981, for lack of interest and for telling the superintendent he felt it was too much responsibility. Debra Verdón testified that Godchaux-Hen-derson reported he was still working on February 26 but complaining of pain in the groin, because of which she referred him to Dr. Don R. Guzzetta. Roy Vignes testified that on April 28, after receiving Dr. Guzzet-ta’s report indicating no disability, he informed the plaintiff that compensation was denied. He was on lay-off status at that time, and was continued on the company roster until August 17, 1981, when he was fired for failing to report for a “return to work physical.”

The appellee’s testimony is contrary to the company’s records. He testified in his deposition that he quit work on January 10, 1981 because of pain. At trial he testified that he stopped working in January because he couldn’t lift the sacks. Under cross examination he said that he had been fired in January, 1981 but worked continuously from June 6, 1980 until then. As he was recalled to report on August 11, 1981, his report of being fired is incorrect.

Even though the employee continued working, if he established that he suffered a disabling, work related injury, he could still recover under certain circumstances. If, as his petition alleges, he could work only in substantial pain, he might recover under the odd lot doctrine, as urged by his counsel.

The Supreme Court in Calogero v. City of New Orleans, 397 So.2d 1252 (La.1980), explained the odd lot doctrine as related to injured workers who can only continue to work in substantial pain as follows, at 1254:

“The ‘odd lot’ concept can be also applied in substantial pain cases where an injured worker, because of his injury, can function only with substantial pain or with the help of fellow workers, he may not be considered a particularly desirable employee. Thus, if the worker’s pain appreciably limits the types of work available to him and greatly diminishes his ability to compete in the labor market, he could be treated as an ‘odd lot’ worker in the determination of his claim for total disability benefits. See Dusang v. Henry C. Beck Builders, Inc., et al., 389 So.2d 367 (La.1980).”

However, the pain must be severe and disabling. Wilson v. Ebasco Services, Inc., 393 So.2d 1248 (La.1981); Dusang v. Henry C. Beck Builders, Inc., supra. Some residual pain or discomfort when working after an accident is not sufficient for an employee to be found disabled. Jones v. Woodson Construction Company, 213 So.2d 151 (La.1968).

The evidence in the Wilson case was conclusive that the plaintiff’s back pain was so acute as to make it impossible for her to work. The testimony of four doctors, the plaintiff, and her mother was in agreement. In the more recent case of Salvador v. Slidell, 415 So.2d 511 (La.App. 1st Cir.1982), the testimony of three physicians, the plaintiff, his wife, and his daughter-in-law was in agreement as to the plaintiff’s constant, substantial pain.

In the case before us each medical report notes low back pain but only Dr. Waguespack, whom Perrilloux began seeing in June, 1981, indicated that the pain was severe. Dr. Christy Montegut, whom he consulted in February, 1981 on his own for pain and swelling in the groin and who saw him twice, reported a complaint of back pain but no disability. Dr. K.E. Vogel, to whom the plaintiff’s attorney referred him in April, 1981, reported that he was “in no acute distress,” and found “no limitation of motion of muscle spasm.”

Dr. Waguespack reported a significant decrease in range of motion of Perrilloux’s lower back but testified that the employee refused to go through many of the normal motions and he did not push him because of his complaints of pain. When asked whether he would question the opinions of the two specialists, Dr. Harold Ml Stokes, an orthopedist, and Dr. Vogel, a neurosurgeon, as to the employee’s fitness to work, Dr. Waguespack replied, “If it was their opinion that there was nothing wrong and he could work, I have no reason to question it.”

The plaintiff’s lay witnesses were himself and Douglas McBride, a Godchaux employee, who were questioned to corroborate Per-rilloux’s complaints of severe pain. Neither witness was convincing, Perrilloux because of his conflicting statements throughout the record, and McBride because of his inability to state with certainty his own dates of employment at Godchaux, much less whether they overlapped with Perrilloux’s employment period.

We find that the plaintiff failed to carry his burden of proof as to disability under the Louisiana Workmen’s Compensation statute and that the judgment appealed from is clearly erroneous.

Accordingly, we reverse the judgment rendered in favor of the plaintiff, Adrian J. Perrilloux, and against the defendant, God-chaux-Henderson Sugar Company, Inc., and render judgment in favor of the defendant, Godchaux-Henderson Sugar Company, Inc., and against the plaintiff, Adrian J. Perril-loux, dismissing his claim for workmen’s compensation benefits at his costs.

REVERSED AND RENDERED.

      . The medical evidence showed this to be a glandular condition unrelated to his work.


text:
    BINSWANGER GLASS CO., DIVISION OF NATIONAL GYPSUM CO. v. Irwin R. SANDERS.
    No. 83-CA-271.
    Court of Appeal of Louisiana, Fifth Circuit.
    Aug. 8, 1983.
    Irwin R. Sanders, Metairie, in pro. per.
    Richard M. Michalczyk and Kenneth V. Ward, Jr., Cronvich, Wambsgan & Michalc-zyk, Metairie, for Binswanger Glass Co., Div. of National Gypsum Co., plaintiff-ap-pellee.
    Before BOUTALL, KLIEBERT and DU-FRESNE, JJ.
   BOUTALL, Judge.

The defendant, Irwin R. Sanders, appeals a judgment in the amount of $2,649.00 plus costs rendered against him in his absence and the denial of his motion for new trial. We affirm, finding that the trial judge did not abuse his discretion under the facts of this case.

FACTS

In 1976, appellant, an attorney, had some remodeling work on his law office done by plaintiff company, totalling approximately $8,000.00.

Appellant paid $5,500.00 of the amount ■ he owed, but withheld the remainder because of alleged uncorrected defects in plaintiffs work. He alleges that the plate glass installed by plaintiffs was not water tight, and that other work done by plaintiff on the building was defective, allowing rain to seep in. Plaintiff, after repeated attempts, over a period of 3 years, did not correct the alleged problems to appellant’s satisfaction, and he continued to refuse to pay the balance of the bill. Plaintiff-appel-lee finally filed suit against defendant for the balance of the bill in 1979. The trial was continued, at defendant’s request, twice before it finally took place.

During the eventual pre-trial conference the trial judge suggested that a “glass expert” be appointed. The parties agreed on a person, and the expert went out and examined appellant’s building. The report was not at all favorable to appellant. It suggests that the building leaks because of structural defects in the brick masonry and the roof; defects which plaintiff company had nothing to do with. Incidentally we attach no importance to appellant’s complaint that the expert’s report was sent to plaintiff’s attorney instead of the trial judge. Appellant argues that this indicates a lack of impartiality on the expert’s part and that the expert was not appointed by the court. We think it indicates a simple misunderstanding by the expert. The record shows (and defendant concedes) that the expert was appointed by the court upon the agreement of the parties.

On August 23, 1982, 15 days before the trial date of September 7, defendant objected to the filing of the expert report, and had the matter set for contradictory hearing. The motion was set to be heard on September 23,1982, in other words, 3 weeks after the trial date.

It is appellant’s position that after a phone conversation with an unnamed female deputy clerk, he was under the impression that the trial date was continued until after the exception was to be heard. However, the record indicates otherwise, as we will point out below.

On the morning of the trial defendant was seen by both the trial judge and plaintiff’s attorney at the opening of court ceremony. When defendant did not show up in court, the trial judge sent plaintiff’s attorney out to look for him. Defendant could not be located. The case was put on in defendant’s absence, and judgment was awarded to plaintiffs in the amount of $2,649.00 plus costs.

ISSUES ON APPEAL

The sole issue which appellant presents for our review is whether the trial court abused its discretion in refusing to grant him a new trial. Appellant does not raise the issue of the merits of the ease, nor the sufficiency of the evidence on which the judgment was granted.

NEW TRIAL

Article 1973 of the Louisiana Code of Civil Procedure governs the granting of a new trial. It provides:

Art. 1973. Discretionary grounds

A new trial may be granted in any case if there is a good ground therefor, except as otherwise provided by law.

The standard of review which we must employ in resolving the issue on appeal is whether the trial court abused its discretion in refusing to grant a new trial. Costanza v. Sciortino, 391 So.2d 972 (La.App. 4th Cir.1980). Any such determination by this court turns largely on the facts of each case.

Considering the following facts which we will enumerate, we find that it was not an abuse of discretion for the trial judge to deny appellant’s motion for a new trial.

Firstly, the record indicates that defendant-appellant was personally served on July 26, 1982 with notice of the trial date of September 7, 1982.

Secondly, defendant’s assumption that the trial date was continued because his objection had been set for hearing later in September, coupled with his attempt to verify the continuance by phoning the Clerk of Court’s office rather than the judge or his minute clerk, strike us as rather haphazard practices for an attorney to employ.

Furthermore, the transcript of the trial contains a discussion between plaintiff’s attorney and the trial judge wherein both state that they saw appellant at the opening of court ceremony on the morning of September 7, 1982, the date of trial. The fact that appellant did not approach the judge or plaintiff’s attorney at this time to verify the continuance is remarkable.

Finally, and most damaging to appellant’s case is the following statement by plaintiff’s attorney to the trial judge on the morning of trial:

MR. WARD:

You know, he knows the trial is today. He called me Friday and asked me if I would go along with a continuance since, it was the day after Labor Day. And I told him no, that I had my subpoenas out. And the matter has already been continued about three (3) or four (4) times. I filed this petition in 1979.

The circumstances which we have enumerated above demonstrate at the least a certain negligence on appellant’s part. Therefore he cannot now be heard to complain that the trial was conducted and judgment rendered against him in his absence, nor that the undoubtedly exasperated trial judge denied his motion for new trial.

For the foregoing reasons the judgment appealed from is affirmed. Costs of the appeal are to be borne by appellant.

AFFIRMED.


author: GAUDIN, Judge.

text:
    Mary Matranga LICATA, Mary Lee Power, Wife of/and Nicholas B. Licata, Jr. v. Helen J. Whittenburg, Wife of/and John A. BENINATE.
    No. 83-CA-297.
    Court of Appeal of Louisiana, Fifth Circuit.
    Aug. 8, 1983.
    Rehearing Denied Sept. 16, 1983.
    Writ Denied Nov. 18,1983.

      Martin A. Welp, New Orleans, for defendants-appellants.
    Joycelyn D. Guarisco, Metairie, for plaintiffs-appellees.
    Before BOUTALL, GAUDIN and DU-FRESNE, JJ.
   GAUDIN, Judge.

The only issue involved in this proceeding is whether a federal statute preempted state usury laws with regard to a promissory note executed March 4, 1980.

The trial judge found the 15 per cent interest rate usurious, and his decree forfeited all interest that had been paid and all future interest in accord with the dictates of LSA-R.S. 9:3501, which reads:

“Any contract for the payment of interest in excess of that authorized by law shall result in the forfeiture of the entire interest so contracted.”

For reasons following, we affirm this judgment.

BACKGROUND

On March 4, 1980, appellants John and Helen Beninate sold property to Nicholas B. Licata, Jr. and the other listed appellees, who signed a 15-year, $67,000.00 promissory note specifying the interest rate at 15 per cent. The legal rate of interest was then 12 per cent.

Because the appellees were unable to meet the monthly payments, the Beninates agreed to accept an “interest only” payment of $610.00 each month; and from April 1, 1980, through December 4, 1981, this amount was regularly paid.

On March 4, 1981, appellees tendered $2,933.25, which was needed to reduce the indebtedness to $67,000.00. On December 28, 1981, appellees paid $3,433.66, again reducing the indebtedness to $67,000.00.

In January and February of 1982, appel-lees paid $937.73, which included interest and, for the first time, principal. This suit was instituted when the parties disagreed over which part of the $937.73 should be applied to interest and which part to principal.

The Beninates credited $865.21 to interest and only $72.52 to principal, and appellees objected to this breakdown. A petition for the recovery of usurious charges was then filed, seeking recovery of $20,296.40 previously paid and the forfeiture of future interest.

On July 29,1982, the trial judge rendered judgment as prayed for.

APPELLANTS’ CONTENTION

The Beninates’ primary argument on appeal is that Title 12, Section 86a of the United States Code preempts R.S. 9:3501. This federal act does preempt R.S. 9:3501 and similar statutes of other states, but its effective date is April 1,1980, and the Beni-nate-Licata promissory note is dated March 4, 1980.

The relief-giving federal statute can reach back and cover pre-April 1, 1980 transactions if certain conditions are met, but the instant transaction does not qualify.

The transaction would fit under Title 12, Section 86a if (1) it was funded in whole or part after April 1, 1980, (2) it had a variable or fluctuating interest rate or (3) it was a renewal, extension or other modification of an obligation existing prior to April 1, 1980. Clearly, the March 4, 1980, sale-and-mortgage transaction does not meet any of these tests.

CONCLUSION

As the trial judge noted in his “Reasons for Judgment,” the voiding of all interest is very harsh, especially since the Beninates in no way intended to take illegal advantage of appellees.

Prom the “Reasons”:

“Again and again, defendant (Beninate) bent over backwards to accommodate plaintiff (Licata) and assist plaintiff in acquiring the property he so much desired and yet seemingly could not afford. Plaintiff quite obviously could not obtain financing from any other source... It is hard to imagine how plaintiff was in any way ‘victimized’ by the transactions herein. Nevertheless, the Court has no alternative but to apply the law as it was written at the time the contract was executed ... on March 4, 1980.”

The district court judgment correctly applied R.S. 9:3501 and disregarded Title 12, Section 86a, and we affirm the award of $20,296.40 to appellees and the forfeiture of all future interest on the mortgage note executed on March 4,1980. Appellants are to pay all costs.

AFFIRMED.

      . Reference the annotated section following Ti-tie 12, Section 86a, United States Code.