source: Caselaw Access Project

author: DENNIS, Justice. BLANCHE, Justice MARCUS, Justice

license: Public Domain

text:
    Sam V. CATALDIE, Jr., Individually and as Administrator of the Estate of his Minor Child, Amie Cataldie v. LOUISIANA HEALTH SERVICE AND INDEMNITY COMPANY.
    No. 83-C-1750.
    Supreme Court of Louisiana.
    Sept. 10, 1984.
    Rehearing Denied Dec. 6,1984.
    Alonzo P. Wilson, Trimble, Randow, Percy, Smith, Wilson & Foote, Alexandria, for applicant.
    Joseph T. Dalrymple, Antoon & Dalrym-ple, Alexandria, for respondent.
   DENNIS, Justice.

The insured, Sam V. Cataldie, Jr., brought this action for a declaratory judgment ordering that the insurer, Louisiana Health Service and Indemnity Company, popularly known as Blue Cross of Louisiana, must continue to afford coverage for hospital, surgical and major medical services related to the brain cancer of his daughter, Amie Cataldie, as provided for in an otherwise cancelled non-group family health and accident policy. The district court rendered judgment in favor of Catal-die and Blue Cross appealed. The court of appeal amended in part and affirmed, 433 So.2d 367 (1983), holding that after Catal-die’s daughter contracted a continuing illness causing the incurrence of expenses covered by the health insurance policy, public policy would not permit Blue Cross to exercise its contractual rights to cancel or drastically modify the policy. We affirm.

Sam V. Cataldie, Jr. and Blue Cross entered a non-group contract of health and accident insurance with endorsements effective September 1, 1978, insuring the payment of hospital and major medical services for Cataldie’s family. At its inception, the policy provided for $250,000 major medical coverage, a $100 deductible, and a $244.67 quarterly premium. During succeeding years Blue Cross exercised its right under the contract to “change the fees for or the benefits of the contract ... at any time” on several occasions. As of March 1, 1980, Blue Cross increased the quarterly premium to $256.56. As of March 15, 1981, Blue Cross raised the major medical deductible to $300.000, the hospital deductible to $50.00, the quarterly premium to $330.96.

Cataldie’s three year old daughter, Amie, was diagnosed as having brain cancer in April of 1981, and treatment of the cancer was commenced. Deposition testimony shows that this treatment consisted of surgery to remove a malignancy. During the operation water collected in the child’s brain forcing the surgeons to insert a shunt for drainage. Only a portion of the tumor was excised, and the child was left partially paralyzed. Radiation therapy, necessary to destroy the remainder of the malignancy, resulted in a brief remission, but subsequent spinal taps showed reactivation. Amie continued to require brain scans, spinal taps and chemotherapy as her condition deteriorated. As of May 15, 1982, Blue Cross had paid $41,266.21 for expenses in connection with Amie’s illness.

As of January 1, 1982, Blue Cross increased the quarterly premium to $346.02; as of May 15, 1982, Blue Cross reduced the major medical coverage to a total of $20,-000 (limited to a maximum of $10,000 in one year); increased the deductible to $5,000, and increased the quarterly premium to $614.64. Thus, since the policy’s inception Blue Cross decreased major medical coverage 92%, while increasing the deductible 5000% and the quarterly premium over 250%.

Cataldie was forced by Blue Cross’s last increase in premiums to agree to a cancellation of his policy because he could not afford to insure his family at those rates. Instead, he entered a contract with Blue Cross to insure only his daughter, Amie Cataldie, under a single coverage policy with a $236.46 quarterly premium and with the drastically reduced coverage described.

This suit for declaratory judgment that coverage for health and major medical services necessitated by Amie’s cancer be continued after cancellation was filed on May 19, 1982. Also, on May 25, 1982, Cataldie’s attorney addressed a letter to Blue Cross stating that Cataldie had filed a petition for declaratory judgment of their contractual relationship, that his acceptance of the terms and payment of the premiums of the new policy was under protest, and that he reserved all his rights and remedies against Blue Cross. A new non-group comprehensive major medical contract dated August 5, 1982 was issued covering Amie Cataldie effective June 1, 1982.

Pursuant to a stipulation of facts the case was submitted to the trial court which subsequently rendered judgment in favor of Cataldie reinstating the terms and conditions of the policy as it existed at its inception covering his whole family. The court of appeal amended the judgment ordering that the policy benefits provided under the contract as it existed prior to May 15, 1982 be reinstated as to Amie Cataldie only, with corresponding adjustment in premiums.

Amie Cataldie died October 3, 1982.

Insurance is a business affected with the public interest and it is the purpose of the insurance code to regulate it in all its phases. La.R.S. 22:2. No person shall transact a business of insurance in this state without complying with the insurance code. La.R.S. 22:3.

Blue Cross’ action in drastically increasing premiums while decreasing and altering coverage obviously caused the cancellation of the policy. Under these circumstances the insurer must bear legal responsibility for the cancellation, although the parties have stipulated that the plaintiff cancelled the policy. Furthermore, the legal principles which we conclude govern this case are applicable to a cancellation by either the insured or insurer. La.R.S. 22:213(B)(7).

The insurance code gives the health insurance policyholder very substantial protection in the area of cancellations and related matters. If the insurer wishes to insert a clause respecting the matter of cancellation, it must be “not less favorable” to the insured than the following:

“Cancellation: The insurer may cancel this policy at anytime by written notice delivered to the insured, or mailed to his last address as shown on the records of the insurer, and shall refund the pro rata unearned portion of any premium paid. Such cancellation shall be without prejudice to any claim originating prior thereto. The insured may likewise cancel this policy on the above terms.” La.R.S. 22:213(B)(7). (Emphasis Added)

This clause was adopted with only minor deviations from the Uniform Individual Accident and Sickness Policy Provisions Law. Meyer, Life and Health Insurance Law, § 13.1 (1972). It was recommended by the National Association of Insurance Commissioners apparently because cancellation of health insurance is a source of dissatisfaction with a not inconsiderable segment of the public. See, R.D. Young, “Insurance Contracts: The Discontinuance Question,” 30 Ins.Coun.J. 146 (1963).

Blue Cross attempted to insert in its policy cancellation rights less favorable to the insured than the statutory provisions. The major medical endorsement affords post cancellation coverage for a continuing illness or injury but only for a minimal amount or duration: “If a Member is incurring Major Medical Expenses for an illness or injury when this Endorsement is terminated, the Plan agrees to continue coverage under this Endorsement for that condition up to a maximum of $100.00 or for a 45-day period, whichever of these circumstances should be realized first.”

Any provision of a policy which is in conflict with the statutes is amended by law to conform with statutory requirements. La.R.S. 22:213(B)(8). Accordingly, we must analyze Blue Cross’s cancellation clause to determine precisely which, if any, of its provisions conflicts with the statutes and therefore must be considered as having been amended by law.

The provision of the cancellation clause which provides for continuing coverage for a continuing illness or injury is not in conflict with or less favorable than the statutory requirement. However, the special limitation of that coverage to $100 or 45 days, whichever occurs first, is a provision that conflicts with and is less favorable than that required by law. The statutory safeguard against the prejudice of any claim originating prior to cancellation contains no limitation as to time or amount. La.R.S. 22:213(B)(8).

Accordingly, the Blue Cross cancellation clause is amended by law and understood to provide that if any member is incurring major medical expenses for an injury when the policy and endorsement are terminated, coverage for that condition shall not be prejudiced by cancellation. When we apply this clause, as amended, to the facts of this case, we conclude that the correct result has been achieved by the trial court judgment, as amended by the court of appeal.

Although our decision is based on both La.R.S. 22:213(B)(7) and the particular wording of the Blue Cross cancellation clause, it would be no different if the cancellation clause contained a statement identical to the minimum safeguard required by law: “Such cancellation shall be without prejudice to any claim originating prior thereto.” Perhaps in a narrow sense of esoteric legal doctrine Cataldie’s claim originating before cancellation could be said to be restricted to medical bills rendered on or before this date. We do not believe the statute should be given such a confined interpretation. The words of a law are generally to be understood in their most usual signification, attending mostly to the general and popular use of words. La.C.C. art. 14. In this sense, in the popular use and usual meaning of words, Cataldie had a claim for major medical services related to his daughter’s cancer of which the insurer was notified and which originated before it cancelled the policy.

Furthermore, the history of the measure indicates it was formulated by the National Association of Insurance Commissioners to serve as a safeguard against an unconscionable cancellation of health insurance policies by an insurer after the occurrence of illness or injury but before the loss had fully accrued. 30 Ins.Coun.J. at 154. Ca-taldie bargained for and reasonably expected to obtain $250,000 in major medical insurance in the event a catastrophic disease should attack his family. Blue Cross bargained for and reasonably should have expected to be exposed to this risk. By waiting .until the risk had been realized before bringing about cancellation of the policies, Blue Cross made it impossible for Cataldie to obtain insurance for his daughter Amie from any other carrier. The insurer’s action in this case is equally as unconscionable as any which the legislature aimed to prevent by the legislation; the parties’ expectations are as reasonable as any the statute is designed to enforce; and Catal-die’s reliance to his detriment has produced as desperate a set of circumstances as any contemplated by the lawmakers. There is no valid reason to suppose that the legislature intended to exclude Cataldie’s case from the ambit of the statute’s protection.

When confronted with this type of situation all modern authorities we have found conclude that the policy cannot be terminated as to illness, injury or condition arising before the insurer’s cancellation. They differ only as to the theory of the decision: Ambiguity—Sparks v. Republic National Life Insurance Co., 132 Ariz. 529, 647 P.2d 1127 (1982), cert. den. 459 U.S. 1070, 103 S.Ct. 490, 74 L.Ed.2d 632 (1982) (Cancellation of medical benefits policy); Public Policy—Brown v. Blue Cross & Blue Shield of Mississippi, 427 So.2d 139 (Miss.1983) (cancellation of medical benefits); Gulf Guaranty Life Insurance Co. v. Kelley, 389 So.2d 920 (Miss.1980) (attempted cancellation of credit life policy following insured’s heart attack); Detrimental Reliance—Mutual Ben. Life Ins. Co. v. Robison, 54 F. 580 (C.A.Iowa) aff’d 58 F. 723 (7th Cir.1893); Implied Covenant of Good Faith—Spindle v. Travelers Insurance Co., 136 Cal.Rptr. 404, 66 Cal.App.3d 951 (2d Dist.1977) (cancellation of medical malpractice policy). Reasonable Expectations of Insured Honored —See, Keeton Insurance Law Rights at Variance with Policy Provisions, 83 Harv.L.Rev. 1961 (1970).

See also, Blue Cross—Blue Shield of Alabama v. Turner, 43 Ala.App. 542, 195 So.2d 807 (1966) (pregnancy benefits payable despite prior cancellation of group hospital and medical expenses policy); National Life & Accident Ins. Co. v. Dove, 167 S.W.2d 257 (Tex.Civ.App.1942) (cancellation of health benefits not operative as to benefits for continuing illness). Dossey v. Life & Casualty Ins. Co. of Tenn., 177 So. 427 (La.App. 2d Cir.1937) (right to cancel life, health, and accident policy suspended as per insurance contract for disability existing at notice of cancellation); National Life Ins. Co. v. Jackson, 18 Ga.App. 494 (Ga.App.1916).

These theories involve many of the considerations which we would employ in deciding such a case as this under the abuse of rights doctrine. See e.g., Cueto-Rua, “Abuse of Rights” 35 La.L.Rev. 965 (1975); Comment, 42 La.L.Rev. 210 (1981). Since we have concluded that our decision is governed by the contract and statutory law, there is no need for us to consider that doctrine in this ease.

Out of an abundance of caution, we add that our application of La.R.S. 22:213(B)(7) to the insurance contract does not make Cataldie’s policy uneancellable for any purpose other than to prevent prejudice to a claim which originated before cancellation. Otherwise, the policy in this case was fully cancellable, in contrast with a non-cancella-ble or guaranteed renewable policy, which may not be altered by the insurer except to adjust rates by classes. La.R.S. 22:214. This observation is obvious from a casual reading of the statutes but is added to correct a misguided impression of the defendant as relfected in the brief of its counsel.

AFFIRMED.

DIXON, C.J., dissents.

MARCUS and BLANCHE, JJ., dissent and assign reasons.

BLANCHE, Justice

(dissenting).

The policy purchased by plaintiff was a medical expense policy. The basic coverage was subject to cancellation or modification upon 30 days written notice at the option of the insurer. Thus the coverage bargained for was a policy which would provide payment to the insured of medical expenses incurred for a period of 30 days. Plaintiff could have bargained for insurance that could not be cancelled or modified after 30 days, but instead rejected such coverage in writing in the application.

The cancellation provision was incorporated in the policy in accordance with law. La.R.S. 22:212(8). Furthermore, the cancellation could not and did not prejudice any claim (medical expenses) originating prior thereto, as all such expenses ($41,-226.21) were paid for the period prior to the modification of the policy to which the parties agreed on May 15, 1982. The policy does not purport to cover all expenses incurred as a result of a diagnosed illness.

The majority opinion alters a valid contract between the parties and provides coverage for risks not contemplated in the policy. I respectfully dissent.

MARCUS, Justice

(dissenting).

The issue in this case is whether an insurer’s reduction of coverage and increase in fees on a cancellable major medical insurance policy is permissible after an insured under the policy contracts cancer.

Sam V. Cataldie, Jr. entered into a contract of insurance with Louisiana Health Service & Indemnity Company (Blue Cross) effective September 1,1978. This contract, which covered Cataldie, his wife and their daughter Amie, was entitled a “Non-Group Hospital & Surgical Medical Contract.” It covered health care benefits, “health care” being defined in the contract as “any services provided under the terms of the Contract which are rendered to a Member in the interest of his health.”

The policy further provided that “[t]he Plan may change the fees for or the benefits of the Contract or may cancel the Contract at any time, by giving 30 days written notice to the Member at his last address as shown by the records of the Plan.” On the first page of the policy, the contract stated, “The Plan or the Member may cancel the Contract with 30 days written notice.” On the application for the insurance, Cataldie chose not to take a guaranteed renewable policy by signing below where a box stating “No” was checked under a line stating “Guaranteed Renewable.”

At its inception (September 1, 1978), the policy provided $250,000 in coverage with a $100 deductible and a quarterly premium of $244.67. As of March 1,1980, the premium per quarter was increased to $256.56. As of March 15, 1981, Blue Cross increased the premium to $330.96 a quarter and raised the major medical deductible to $300 with a $50 hospital deductible. On April 19, 1981, Amie Cataldie was diagnosed as having terminal brain cancer. As of January 1, 1982, the premium was again raised, this time to $346.02 a quarter. Finally, after timely providing Cataldie with written notice, Blue Cross reduced coverage effective May 15, 1982 from $250,000 to $20,000 lifetime coverage with a maximum coverage of $10,000 a year. Blue Cross also increased the deductible to $5,000 and raised the quarterly premium to $614.64.

Sam Cataldie responded to this modification of his policy by filing, individually and as administrator of the estate of his minor child Amie, a petition for declaratory judgment in the district court. The petition sought a declaration that “the terms and conditions of the policy of hospitalization insurance existing between [him and Blue Cross] and on behalf of Amie Cataldie at the time her subject disease commenced remain the same and that petitioner is entitled to recover medical expenses incurred on behalf of his daughter for the treatment of the cancer and its complications under those same terms and conditions.” In addition, on June 1, 1982, Sam Cataldie dropped his family coverage, leaving only Amie insured under a single coverage policy costing $236.46 a quarter. Amie died on October 3, 1982.

The trial judge rendered judgment in favor of Cataldie and against Blue Cross ordering all health care benefits provided to the family under the contract at its inception and the original premium to be reinstated. Blue Cross appealed. The court of appeal affirmed in part and reversed in part. The court held that public policy mandated that an insurer cannot arbitrarily and without just cause terminate a cancellable hospitalization policy as to a continuing illness for which the insurer had been paying benefits immediately prior to cancellation. The court found that the modifications made by Blue Cross to Catal-die’s policy constituted an effective termination of the policy because the alterations were so drastic that it would be unreasonable for the insured to keep the policy in force. The court ordered the health care benefits provided under the contract as it existed prior to May 15, 1982 reinstated as to Amie Cataldie only and adjusted the premium to $161.73 per quarter as the single coverage premium equivalent to the group policy premium in effect at that time. Upon Blue Cross’ application, we granted certiorari to review the correctness of that decision.

An insurance policy is the contract between the parties, and, like all other contracts, it is the law between them. Muse v. Metropolitan Life Insurance Co., 193 La. 605, 192 So. 72 (1939); La.Civ.Code art. 1901. When the words of the contract are clear and explicit, the courts are bound to give legal effect to all such contracts. La. Civ.Code art. 1945. The policy between Blue Cross and Cataldie plainly provided that Blue Cross could cancel or change the fees for or the benefits of the contract at any time by giving Cataldie thirty days written notice. Such an unambiguous provision should be given full effect when not contrary to any provision of law.

The Louisiana Insurance Code provides the guidelines by which insurers may make health and accident policies cancellable. La.R.S. 22:213(B)(7) permits the inclusion in a policy of health and accident insurance of a provision giving the insurer the right to cancel a policy at any time by written notice to the insured provided such cancellation be without prejudice to any claim originating prior thereto. La.R.S. 22:212(8) requires that in any case in which the policy is subject to cancellation at the option of the insurer, a statement so informing the policyholder must be printed prominently on the first page of the policy. La.R.S. 22:214.1 mandates that health and accident insurers offer applicants the option to purchase at extra cost a policy that guarantees the insured that the policy will not be can-celled or any of its terms other than rates changed until the insured reaches age sixty five.

The insurer in this case met all of these requirements. The clause permitting cancellation substantially followed the wording approved in La.R.S. 22:213(B)(7). Blue Cross complied with La.R.S. 22:212(8) by printing on the first page of the insurance contract a statement notifying the insured that the policy was cancellable at the insurer’s option. And, in accordance with La. R.S. 22:214.1, Blue Cross gave Cataldie the option of taking a “guaranteed renewable” policy, but Cataldie chose not to take it as is evidenced by his signature in the appropriate space on the application form. Moreover, such cancellation was without prejudice to any claim originating prior thereto for reasons hereinafter stated. La. R.S. 22:213(B)(7). Hence, Blue Cross was legally empowered to exercise its cancellation clause.

However, in this ease Blue Cross did not cancel Cataldie’s policy; rather it chose to exercise its contractual right to modify the policy. Under the contract between Blue Cross and Cataldie, the parties agreed that Blue Cross could unilaterally change the fees for or the benefits of the policy upon thirty days written notice to Cataldie. The Insurance Code provides no limits on an insurer’s right to alter the terms. of a health and accident policy. However, the general principle of insurance law is that there can be no material modification of the terms of a policy absent mutual consent of the parties. 17 Couch on Insurance 2d § 65.3, at 244 (1983); Cooper v. Conagra, Inc., 340 So.2d 661 (La.App. 2d Cir.1976); State v. Preferred Accident Insurance Co. of New York, 149 So.2d 632 (La.App. 1st Cir.1963); Isadore v. Washington Fire & Marine Insurance Co., 75 So.2d 247 (La.App.Orl.Cir.1954). In this case, because Cataldie had the right to cancel the insurance policy, he was not forced to accept the modification imposed by Blue Cross. Instead, he had the option to either accept the change or reject it by cancelling the contract. He chose to accept the May 15, 1982 modification by paying the increased premium to retain coverage for his daughter Amie. Hence, I consider that the May 15, 1982 modification went into effect and was fully valid and enforceable.

However, the modification cannot prejudice any claim existing prior to the effective date of that change. See 17 Couch on Insurance 2d § 65.13 (1983). Under the policy between Blue Cross and Cataldie, it was immaterial that Amie was diagnosed as having cancer before May 15, 1982 because developing a sickness was not the insured-against risk. The insured-against risk in this particular contract was the rendering of medical services to an insured. Cataldie only had a vested right to have Blue Cross pay for services rendered before May 15, 1982 under the terms of the contract in effect at that time. Thus, Blue Cross did not divest Cataldie of any vested right by covering services rendered after May 15, 1982 under the modified terms of the contract. Moreover, even assuming cancellation of the policy by the insurer, for the same reasons I do not consider that Cataldie suffered prejudice to any claim originating prior thereto in violation of La. R.S. 22:213(B)(7).

I disagree with the court of appeal’s opinion that public policy prevents the arbitrary termination or drastic modification of an insurance policy as to a continuing illness for which the insurer had been providing benefits immediately prior to the cancellation or modification. Just as an insured may not defeat an insurer’s right not to renew a policy by asserting that the insurer’s exercise of its option was arbitrary and capricious, Gautreau v. Southern Farm Bureau Casualty Insurance Co., 429 So.2d 866 (La.1983), neither can the insured here defeat the insurer’s right to modify the policy by requiring the insurer to show a just cause for the modification. The Insurance Code imposes no such limits on an insurer’s right to modify a policy, and I would not add any restrictions under the guise of public policy. The legislature is vested with a wide discretion in determining what the public interest requires, and the courts should not disturb this exercise of a legislative function. Pepsodent Co. v. Krauss Co., 200 La. 959, 9 So.2d 303 (1942).

Consequently, I disagree with the majority opinion. I consider the May 15, 1982 modification of the insurance contract between Blue Cross and Sam V. Cataldie to be valid and enforceable.

Accordingly, I respectfully dissent.

      . Under the terms of the preamble of the major medical endorsement, the major medical endorsement provisions supersede any conflicting terms of the basic policy. The basic policy permits the insurer to cancel without affording any protection of an insured’s existing claim. Therefore, as between the basic contract and the major medical endorsement, the endorsement governs cancellation.

      . As of May 15, 1982, Blue Cross had paid out $41,266.21 to cover services rendered to Amie Cataldie. Sam Cataldie had paid premiums totaling $4,189.08 as of this date.

      . The trial judge mistakenly reinstated the contract as of August 14, 1978 (date of application) rather than on its effective date of September 1, 1978 as stipulated by the parties.

      . The trial judge identified this original premium as being $246.13 per quarter when in fact the parties had stipulated that it was $244.67 per quarter.

      . 433 So.2d 367 (La.App. 3d Cir.1983).

      . The court preserved the January 1, 1982 increase in the premium even though it occurred after Amie’s cancer was diagnosed because the court found that increase to be justifiable.

      . 440 So.2d 752 (La.1983).

      . § 213. Health and accident policy provisions

      B. Other provisions (optional) — No such policy shall be delivered or issued for delivery containing provisions respecting the matters set forth below unless such provisions are, in substance, in the following forms, or, at the option of the insurer, in forms which in the written opinion of the commissioner of insurance are not less favorable to the policyholder:

      (7) Cancellation: The insurer may cancel this policy at any time by written notice delivered to the insured, or mailed to his last address as shown by the records of the insurer, and shall refund the pro rata unearned portion of any premium paid. Such cancellation shall be without prejudice to any claim originating prior thereto. The insured may likewise cancel this policy on the above terms.

        See also La.R.S. 22:636.

      . § 212. Form of policy

      (8) In any case where the policy is subject to cancellation or renewal at the option of the insurer, there shall be prominently printed on the first page of such policy a statement so informing the policyholder.

      . § 214.1. Guaranteed renewable to age sixty-five clause
      A. Every insurer authorized to issue policies of health and accident insurance in this state shall offer to eligible applicants, at an additional cost, to include a provision in the insurer’s ordinary health and accident insurance policy which would guarantee to the insured that the policy shall not be cancelled, nor any of its terms changed, except for rating purposes within a defined class or category, up to age sixty-five of the insured as long as the insured continues to pay the designated premiums on that policy.


author: DENNIS, Justice. WATSON, Justice,

text:
    FIRST FINANCIAL BANK, FSB v. HUNTER FOREST LIMITED PARTNERSHIP, J. Edwin Kyle, Jr., Donald J. Romero, Edgar G. Mouton, Jr. & Hugh L. Cornay.
    No. 84-CC-1206.
    Supreme Court of Louisiana.
    Oct. 15, 1984.

      Charles J. Nunez, Arthur J. O’Keefe, Du-tel & Dutel, Lafayette, for plaintiff-relator.
    Linda G. Smith, Richard L. Becker, Moss, Becker & Bradley, Lafayette, for defendants-respondents.
   DENNIS, Justice.

Plaintiff, First Financial Bank, filed suit against defendant, Hunters Forest Ltd. Partnership, to foreclose by executory process under a special mortgage affecting a tract containing over 115 condominiums, lots, and parcels of land owned by the defendant partnership. A writ of seizure and sale was issued, the property was seized, and a sale was scheduled. Defendant partnership moved for and obtained an order designating that each condominium, lot, and parcel be sold individually rather than in globo. Plaintiff moved the court to rescind its order. After a contradictory hearing the court denied plaintiff’s motion and plaintiff sought writs from the court of appeal. The court of appeal denied writs. We granted certiorari, 452 So.2d 699, and now reverse the trial court’s order, remand the case for further proceedings, and direct the trial court to order the issuance of a writ of seizure and sale commanding the sheriff to seize and sell the property affected by the mortgage, as prayed for by plaintiff and according to law.

Defendant partnership contends that, because the property seized under the mortgage is divided or divisible, the partnership is entitled, under article 2295 of the Code of Civil Procedure, to designate the order in which the items or portions of property will be sold. Based on the clear wording and scheme of the Code, however, we conclude that article 2295 is not applicable to executory proceedings and that the partnership has no right to prevent a seizure and sale of the whole property subject to plaintiff’s mortgage.

Executory proceedings are those which are used to effect the seizure and sale of property, without previous citation and judgment, to enforce a mortgage or privilege thereon evidenced by an authentic act importing a confession of judgment, and in other cases allowed by law. La.C.C.P. art. 2631. When a person seeking to enforce a mortgage or property in an executory proceeding files a petition therefor, praying for the seizure and sale of the property affected by the mortgage, and submitting the exhibits required by law, La.C.C.P. art. 2634-37; and the plaintiff is entitled thereto, the court shall order the issuance of a writ of seizure to seize and sell the property affected by the mortgage or privilege, as prayed for and according to law. La.C. C.P. art. 2638.

Code of Civil Procedure article 2724 provides that articles 2333 through 2335, and 2337 through 2381, relating to a sale of property under the writ of fieri facias, shall apply to a sale of property under the writ of seizure and sale, and that article 2336 so applies under circumstances not pertinent here. Articles 2333-35 and 2337-81 deal with the formalities and requirements of the sheriff’s sale, the price which must be offered to effect adjudication, the sheriffs act of sale, and the adjudication and its effect. Art. 2724, official revision comment.

The express provision by article 2724 that certain articles relating to sales under fieri facias shall be applicable to executory proceedings strongly implies that the other articles on execution of judgments do not govern sales by executory process. This implication is reinforced in the case of articles 2295 and 2296 by the language of the articles and their function of regulating otherwise unfocused seizures and sales. A writ of fieri facias may be issued for the payment of a money judgment directing the seizure and sale of the property of the debtor which may be found in the parish. La.C.C.P. art. 2291. Unlike a writ of seizure and sale under executory process, it may not be issued before judgment and its operation is not restricted to property affected by a mortgage or privilege. For this reason, articles 2295 and 2296 permit a judgment debtor to designate the order in which the items or portions of his property will be sold and to obtain the release of items or portions seized that are not reasonably necessary to satisfy the judgment, with the exception of property on which the judgment creditor has a mortgage or privilege other than that resulting from the seizure. Apparently, the legislature did not see fit to make articles 2295 and 2296 applicable to executory proceedings because the risk of an excessive seizure or unreasonable order of sale therein is limited in that an executory proceeding usually is confined to the enforcement of a specific mortgage or privilege. McMahon, The Historical Development of Executory Procedure in Louisiana, 32 Tul.L.Rev. 555, 569 (1958).

Defendant partnership contends in brief that this case is moot because plaintiff bank acquiesced in the trial court’s order by requesting the issuance of separate writs of seizure and sale of a portion of the items of property, although defendant concedes that the sales were cancelled before the trial court’s order was carried out. Plaintiff bank contends that it never had any intention of acquiescing in the trial court’s order but had intended to effect some individual sales during proceedings in this court in order to mitigate its damages caused by the delay of this litigation. Under the circumstances, the question of whether the mortgagor or the mortgagee has the right to direct the sale is clearly not a moot but a litigable controversy. Plaintiff bank did not voluntarily and unconditionally acquiesce in a judgment rendered against it. Cf. La.C.C.P. art. 2085; Harnischfeger Corf. v. C.W. Greeson Co., 219 La. 546, 53 So.2d 488 (1951); Scott v. Scott, 218 La. 211, 48 So.2d 899 (1950); Sanderson v. Frost, 198 La. 295, 3 So.2d 626 (1941). A decision of the disputed issue will have a practical purpose for the litigants and will be of more than academic significance to them. Robin v. Concerned Citizens for Better Ed. in St. Bernard, Inc., 384 So.2d 405 (La.1980); State ex rel. Preston v. Henderson, 283 So.2d 230 (La.1973); 5 Am.Jur.2d, Appeal and Error § 762, p. 204.

REVERSED AND REMANDED.

WATSON, J., dissents and assigns reasons.

LEMMON, J., dissents.

WATSON, Justice,

dissenting.

The issue of whether LSA-C.C.P. art. 2295 is applicable to an executory proceeding is moot because of plaintiffs acquiescence in the trial court’s judgment. The day after a writ was granted by this court and probably before counsel received notice, plaintiff had the clerk of court for Lafayette Parish issue fifty-four separate writs of seizure and sale for fifty-four condominium units covered by the mortgage. Sales of these units were set for August 29, 1984, and September 5, 1984. Before the sales were cancelled, they had been advertised and appraisers appointed.

Under LSA-C.C.P. art. 2085, one loses the right of appeal by acquiescing in the judgment or order rendered by the trial court. Acquiescence is not presumed, but it may be shown by a voluntary, unconditional and intentional acceptance of the trial court’s order. Plaintiff’s deliberate action in having fifty-four separate writs of seizure and sale issued and proceeding toward the sale of the fifty-four condominiums in accordance with the trial court’s order clearly show acquiescence.

The cases cited by the majority to support non-acquiescence are factually inappo-site to the situation in this case. In Harnischfeger Corp. v. C.W. Greeson Co., 219 La. 546, 53 So.2d 488 (1951) the attachment by defendant of the plaintiff’s interest in a lawsuit against defendant as a means of acquiring jurisdiction over plaintiff was not acquiescence because the attachment was not an effort to execute upon the judgment. In Sanderson v. Frost, 198 La. 295, 3 So.2d 626 (1941) the plaintiffs’ acceptance of part of the purchase price of timber sold from a tract of which they had been recognized as owners of a one-half interest was not acquiescence where plaintiffs appealed the judgment because it did not recognize them as the full owners. In Scott v. Scott, 218 La. 211, 48 So.2d 899 (1950) there was no acquiescence where a husband paid alimony while his appeal was pending because the payment was necessary to avoid a citation for contempt of court. The cases do not support the majority’s conclusion that there was no acquiescence.

Since plaintiff has acquiesced in the order, there is no longer any practical relief which can be granted by this court and hence the issue is moot. The writ should be recalled.

Therefore, I respectfully dissent.

      . The court is advised that the sales were can-celled, not because plaintiff changed its mind, but because some flaw was discovered in the title.


author: WATSON, Justice. MARCUS, Justice

text:
    STATE of Louisiana v. Walden SCOTT.
    No. 84-K-1052.
    Supreme Court of Louisiana.
    Oct. 15, 1984.

      George E. Escher, Katner & Escher, New Orleans, for defendant-applicant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., William Credo, III, Cornelius Regan, Elizabeth M. Gaudin, Asst. Dist. Attys., for respondent.

      . State v. Scott, 451 So.2d 1135 (La.App. 5 Cir. 1984).

   WATSON, Justice.

Defendant, Walden Scott, was convicted in a bench trial of intentionally obtaining a controlled dangerous substance, Oxyco-done, by fraud and deceit. LSA-R.S. 40:971 B(l)(b). Scott was given a two year suspended sentence and placed on two years probation. The Court of Appeal affirmed, and a writ was granted. Scott contends that there was insufficient evidence of his intent to commit the offense.

FACTS

On September 13, 1982, Scott entered a K-Mart Pharmacy on Veterans Highway in Metairie, Louisiana, and gave the pharmacist a Percodan prescription for a “James Wilson”. The pharmacist called Dr. Bul-lard, the prescribing doctor, for verification and was told Dr. Bullard did not have a patient by that name. The doctor’s office notified the police that someone was attempting to pass a forged prescription.

Two narcotics agents from the Jefferson Parish Sheriff’s Department went to the pharmacy and witnessed the purchase. When the agents asked defendant about the prescription, Scott said he was picking it up for a friend and was placed under arrest.

At trial, the only testimony was that of Raymond Gibbs, one of the arresting officers, who said Scott was cooperative “[t]o a degree” (Tr. 50) Gibbs did not know whether Wilson existed or where he could be located. It was stipulated that Dr. Bullard would have testified that neither James Wilson nor Walden Scott was one of his patients, and he “didn’t write this prescription.” (Tr. 46)) It was also stipulated that the pharmacist received the prescription from Scott, filled it and gave it to Scott.

LAW

The question is “ ‘whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ {Jackson v. Virginia, 443 U.S. 307 at 319, 99 S.Ct. 2781 at 2789, 61 L.Ed.2d 560 at 573 [1979], which is the federal or constitutional standard); and, since this is a circumstantial evidence case, whether, assuming every fact to be proved that the evidence tends to prove, every reasonable hypothesis of innocence is excluded (LSA-R.S. 15:438, the state or statutory standard).” State v. Parker, 425 So.2d 683 at 694 (La., 1982).

CONCLUSION

All that was proven was that Scott handed ' the pharmacist a forged prescription made out to another person and obtained a controlled dangerous substance. There was no evidence that Scott misrepresented himself as Wilson; that Scott forged the prescription; or that Scott had knowledge the prescription was forged. See State v. Goiner, 410 So.2d 1085 (La., 1982) and State v. Brown, 352 So.2d 690 (La., 1977). The state did not show that Scott knowingly obtained the Percodan “by misrepresentation, fraud, forgery, deception or subterfuge” as required by the statute. State ¶. Tufts, 391 So.2d 1114 (La., 1980).

In State v. Mitchell, 421 So.2d 851 (La., 1982), a similar case, the conviction under LSA-R.S. 40:971 B(l)(b) was affirmed, but that defendant admitted being addicted to codeine, an ingredient in the drug for which the forged prescription was written. It was held that á rational trier of fact could have reasonably inferred that the addict knowingly used a forged prescription.

In State v. Custard, 384 So.2d 428 (La., 1980), there was also evidence of defendant’s guilty knowledge. While standing in a checkout line with the unfilled prescription in his hand, defendant saw the police arrive and passed the prescription to a friend who worked in the store. Defendant’s guilty reaction allowed an inference that he knowingly used a forged prescription to obtain a controlled dangerous substance.

Here, the state proved that Scott obtained possession of a controlled dangerous substance by means of a forged prescription, but failed to prove an essential element of the crime, knowledge. There was absolutely no evidence from which it could be inferred that Scott had knowledge that the prescription was forged. The law requires reversal.

For the foregoing reasons, the conviction and sentence of defendant, Walden Scott, are reversed and vacated. A judgment of acquittal is entered.

REVERSED.

MARCUS, J., concurs and assigns reasons.

MARCUS, Justice

(concurring).

Agreeing with the majority that the state presented insufficient evidence that Scott had knowledge that the prescription was forged, I concur in the result. However, had the defendant been charged with possession of a controlled dangerous substance, I consider that it would have been a matter of defense whether the substance was obtained pursuant to a valid prescription. See my dissent in State v. Goiner, 410 So.2d 1085 (La. 1982).

      . LSA-R.S. 40:964 [Schedule II, A(l)(o) ]. It is commonly known as Percodan.

      . LSA-R.S. 40:971 B(l)(b) provides in pertinent part:
      "B. (1) It shall be unlawful for any person knowingly or intentionally:
      * * * * * *
      "(b) To acquire or obtain possession of a controlled dangerous substance by misrepresentation, fraud, forgery, deception or subterfuge;

      . 452 So.2d 1175 (La., 1984).

      . According to the laboratory report, the tablets were consistent in appearance with Percodan and contained Oxycodone.


text:
    STATE of Louisiana v. Wilbert Glenn EBEY, Jr.
    No. 84-K-1823.
    Supreme Court of Louisiana.
    Oct. 22, 1984.
   In re Ebey, Wilbert Glenn Jr., applying for stay order to the Court of Appeal, Second Circuit, Number 16220-KA; Parish of Ouachita, 4th Judicial District Court, Div. “B”, Number 41155.

Prior report: 455 So.2d 1298.

Denied.

MARCUS, J., is of the opinion that the application should not be considered as it was not timely filed. See Rule 10 § 4(b), LA. Supreme Court Rules.

WATSON, J., concurs in the denial, but also agrees with MARCUS, J., that it is untimely.


author: LEMMON, J.,

text:
    STATE of Louisiana v. Jon MASON.
    No. 84-KK-1835.
    Supreme Court of Louisiana.
    Oct. 23, 1984.
   In re: Mason, Jon, Applying for Stay, Supervisory Writs, Parish of Livingston, 21st Judicial District Court, Div. “D”, No. C-3203; to the Court of Appeal, First Circuit, No. KW-84-1237.

Denied.

DIXON, C.J., would grant and reduce the bond to $80,000.

CALOGERO, J., would reduce relator’s bond to $100,000.

LEMMON, J.,

concurs in the denial. Relator may again seek reduction of bail on the basis of a voluntary psychiatric commitment as a condition reasonably related to assuring his appearance.


text:
    In re Alexander C. COCKE, Jr.
    No. 84-OB-1838.
    Supreme Court of Louisiana.
    Oct. 25, 1984.
   ORDER

Considering the petition of Alexander C. Cocke, Jr. and the recommendations of the Committee on Professional Responsibility of the Louisiana State Bar Association:

IT IS ORDERED that Alexander C. Cocke, Jr. be suspended from the practice of law on the ground of medical incapacity and disability until the further order of this Court.

IT IS FURTHER ORDERED that the formal investigatory hearing scheduled to investigate alleged misconduct on the part of Alexander C. Cocke, Jr. be held in suspense.


author: DIXON, C.J.,

text:
    STATE ex rel. Earnest KNIGHTON, Jr. v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 84-KD-1874.
    Supreme Court of Louisiana.
    Oct. 29, 1984.
   In re Knighton, Earnest Jr., applying for stay, writ of habeas corpus, Parish of Bossier, 26th Judicial District Court, Div. “A”, Number 58287.

Denied.

DIXON, C.J.,

concurs in the denial. The matter raised in this application is without merit. In a previous application, however, the issue of ineffective counsel on the sentencing phase was raised. No evidence of any kind was offered by the defense on the sentencing phase. Except for the fact that this issue was litigated in the Federal System, where there was an evidentiary hearing, and where the U.S. Supreme Court denied an application for review, the issue of ineffective counsel (on the death penalty phase) should be reviewed. See 740 F.2d 1344 (La.1984), stay denied and certiorari denied by — U.S. —, 105 S.Ct. 306, 83 L.Ed.2d 241.


text:
    STATE of Louisiana v. Scott LINGLE.
    No. 84-KK-1636.
    Supreme Court of Louisiana.
    Sept. 27, 1984.
   In re Lingle, Scott, applying for remedial writs, Parish of Orleans, Criminal District Court, Div. “I”, No. 288-356; to the Court of Appeal, Fourth Circuit, No. K-2654.

Granted.

It is ordered in the alternative that the District Attorney respond to the subpoena duces tecum and produce the Crime Scene Technician Report and notify this Court that he has done so by October 5, 1984; or, if he declines to do so, the trial of this case is stayed and the application for writs is granted.

CALOGERO, J., recused.


text:
    STATE of Louisiana, ex rel., Phil Joseph LeMELLE v. John T. KING, Secretary of the Louisiana Dept. of Corrections: J.D. Middlebrooks, Warden of the Louisiana Correctional and Industrial School: City of Dequincy, Parish of Beauregard, and the State of La.
    No. 83-KH-1717.
    Supreme Court of Louisiana.
    Sept. 28, 1984.
   In re Phil Joseph LeMelle, applying for supervisory and remedial writs and writ of mandamus, Parish of Calcasieu, No. 1816-75.

Denied.


text:
    STATE of Louisiana, ex rel., David FRANKLIN v. Larry W. JEANE, Warden, Camp Beauregard WTF-N.
    No. 83-KH-1776.
    Supreme Court of Louisiana.
    Sept. 28, 1984.
   In re David Franklin, applying for writ of mandamus, Parish of East Baton Rouge.

Denied. Moot.


text:
    William W. GREEN v. Governor David C. TREEN and the State of Louisiana.
    No. 84-CC-1243.
    Supreme Court of Louisiana.
    Sept. 28, 1984.
   In re William W. Green, applying for supervisory writs of certiorari, mandamus and prohibition, 19th Judicial District Court, Parish of East Baton Rouge, No. 274823; Court of Appeal, First Circuit, No. CW84/0748.

Denied.

CALOGERO and DENNIS, JJ., would grant the writ.


text:
    AMERICAN BANK AND TRUST COMPANY v. A.J. TULLOS, Jr., Warwick E. Paul, Marion R. Rule, Henry R.J. Cournoyer, Goodrich Realty Company, David N. Davis, Michael G. Hamner, Gerald M. Hydel, Alan N. Jacobs, Stanley J. Jacobs, Franklin H. Jones, Jr., Walter P. Ledet, Jr., Frank L. Levy, E. Lawrence Lowery, Jr., Irwin M. Marcus, William I. Monaghan, William E. Shaddock, Roy I. Sasser, Jr., F.H. Walk.
    No. 84-CC-1264.
    Supreme Court of Louisiana.
    Sept. 28, 1984.
   In re Henry R.J. Cournoyer, Goodrich Realty Company, David N. Davis, Alan N. Jacobs, Stanley J. Jacobs, Franklin H. Jones, Jr., Walter Ledet, Jr., E. Lawrence Lowery, Jr., Irwin M. Marcus, William I. Monaghan, William E. Shaddock, and Roy I. Sasser, Jr., applying for writs of certiora-ri, prohibition and mandamus, to the Fifteenth Judicial District Court, Parish of Lafayette, No. 840260, from the Third Circuit Court of Appeal, No. 84-447.

Denied.

MARCUS and BLANCHE, JJ., would grant the writ.


text:
    Terry A. CROMWELL, M.D. v. COMMERCE & ENERGY BANK OF LAFAYETTE, et al. Floyd J. BREAUX and Daniel G. Dupree v. FIRST NATIONAL BANK OF LAFAYETTE. Bennett Boyd ANDERSON, Jr., et al. v. AMERICAN BANK & TRUST COMPANY OF LAFAYETTE. Carl BAUER, et al. v. FIRST NATIONAL BANK OF LAFAYETTE, et al. William D. LONG v. SECURITY FIRST NATIONAL BANK.
    No. 84-C-1104.
    Supreme Court of Louisiana.
    Sept. 28, 1984.
   In re Bennett Boyd Anderson, Jr., applying for writ of certiorari or review to the Court of Appeal, Third Circuit, Nos. 83-461, 83-462, 83-463, 83-464, 83-464; 15th Judicial District Court, Parish of Lafayette, Nos. 82-6413-H, 82-6441-H, 82-6535-H, 82-6556-H and 82-6872-H.

Prior reports: 450 So.2d 1; 450 So.2d 13; 450 So.2d 14; 450 So.2d 15 and 450 So.2d 16.

Granted.


text:
    GAMMON ENTERPRISES, INC. v. VANGUARD INVESTMENT, INC., David K. Gatto and J. Van Provosty.
    No. 84-C-1186.
    Supreme Court of Louisiana.
    Sept. 28, 1984.
   In re Vanguard Investment, Inc., David K. Gatto and J. Van Provosty, applying for writ of certiorari or review to the Fourth Circuit Court of Appeal, No. CA 1228, from the Civil District Court, Parish of Orleans, No. 81-19410.

Prior report: 449 So.2d 1077.

Writ denied.

CALOGERO and DENNIS, JJ., would grant the writ.


text:
    LEAGUE OF WOMEN VOTERS, et al. v. The CITY OF NEW ORLEANS, et al. Daryl Claire SINS, Wife of/and Alvin R. Childress, III v. Ernest N. MORIAL, Mayor, et al. The CITY OF NEW ORLEANS, et al. v. The BOARD OF ASSESSORS OF ORLEANS PARISH, et al.
    No. 84-C-1190.
    Supreme Court of Louisiana.
    Sept. 28, 1984.
   In re Daryl Claire Sins, et al., applying for writ of certiorari and or review to the Fourth Circuit Court of Appeal, Nos. CA-0868; CA-0869; CA-0870 and CA-0871; Parish of Orleans, Civil District Court, Nos. 79-5381; 79-12699, 80-5256 and 81-2655.

Prior report: 449 So.2d 1153.

Denied.


text:
    Carl B. SWIFT, Individually and as Tutor of the Minor Children Diana Lynn Swift, Kathleen Ann Swift and Kevin Patrick Swift, Sandra Gayle Swift and Curtis Ingersoll v. CONTINENTAL INSURANCE COMPANY, John Wisotzkey, Bernard J. Bailey and ABC Insurance Co. Curtis INGERSOLL v. TRAVELERS INSURANCE COMPANY and Gulf Coast Contracting Services, Inc. Carl B. SWIFT, Individually and as Tutor of the Minor Children Diana Lynn Swift, Kathleen Ann Swift and Kevin Patrick Swift: Sandra Gayle Swift and Individually v. TRAVELERS INSURANCE COMPANY and Gulf Coast Contracting Services, Inc.
    No. 84-C-1242.
    Supreme Court of Louisiana.
    Sept. 28, 1984.
   In re Carl B. Swift, individually and as tutor of the minor children Diana Lynn Swift, Kathleen Ann Swift and Kevin Patrick Swift, Sandra Gayle Swift and Curtis Ingersoll, applying for writ of certiorari to the Fifth Circuit Court of Appeal, Nos. 83-CA-361, 83-CA-362 and 83-CA-363, from the Twenty-Fourth Judicial District Court, Parish of Jefferson, Nos. 239-919, 253785 and 249-163, Division “J”.

Prior report: 453 So.2d 271.

Denied.


text:
    Charlie W. JORDAN v. Ray T. SUTTON, Commissioner of Conservation, State of Louisiana, In His Official Capacity.
    No. 84-C-1249.
    Supreme Court of Louisiana.
    Sept. 28, 1984.
   In re Herbert W. Thompson, Commissioner of Conservation and Southern Natural Gas Company, applying for writ of cer-tiorari or review to the First Circuit Court of Appeal, No. 83-CA-0746; Parish of East Baton Rouge, 19th Judicial District Court, No. 237-861.

Prior report: 450 So.2d 1041.

Denied. Result correct.

MARCUS, J., would grant the writ.


text:
    The PEOPLES WATER SERVICE COMPANY OF LOUISIANA, INC. v. MENGE PUMP AND MACHINERY COMPANY, INC. and Colt Industries Operating Corporation.
    No. 84-C-1262.
    Supreme Court of Louisiana.
    Sept. 28, 1984.
   In re Menge Pump and Machinery Company, Inc., applying for writ of review to the Fifth Circuit Court of Appeal, No. 83-CA-833, from the Twenty-Fourth Judicial District Court, Parish of Jefferson, No. 277807, Division “I”.

Prior report: 452 So.2d 752.

Denied.

MARCUS and WATSON, JJ., would grant the writ.


text:
    Lucinda H. BEAUCHAMP, George W. Beauchamp and Henry Louis Beauchamp v. NORTHBROOK EXCESS AND SURPLUS INSURANCE COMPANY, Fidelity Loan & Mortgage, Inc., George R. Covert, Albert L. Ringgold and Wilmetta Amos Ringgold.
    No. 84-C-1275.
    Supreme Court of Louisiana.
    Sept. 28, 1984.
   In re Lucinda H. Beauchamp, George W. Beauchamp and Henry Louis Beauchamp, applying for writ of certiorari, to the First Circuit Court of Appeal, No. 83-CA-0627; Parish of East Baton Rouge, 19th Judicial District Court, No. 239-029, Division H.

Prior report: 450 So.2d 996.

Denied.


text:
    Luis ORTIZ and Alma Ortiz v. Frances J. DEMAREST, Jr., Recorder of Mortgages for the Parish of Orleans.
    No. 84-CC-1598.
    Supreme Court of Louisiana.
    Sept. 19, 1984.
   In re Barriffe, Eugene Jr., Ware, Errol, applying for supervisory, remedial writs and stay order, Parish of Orleans, Civil District Court, Div. “D”, No. 84-12058; to the Court of Appeal, Fourth Circuit, No. C-2707.

Prior report: 455 So.2d 1195.

Denied. Stay recalled.

DIXON, C.J., and WATSON and LEM-MON, JJ., would grant the writ.


text:
    STATE of Louisiana v. Darren PAYNE, Joe Harvey Sellers, Randy Sears, Mark Coleman, David Billiot, Frederick Pebley, Dominic Piazza, Perry Babin.
    No. 84-KK-1712.
    Supreme Court of Louisiana.
    Sept. 27, 1984.
   In re Warren J. Daigle, Jr., John R. Walker, Charles Gary Blaize, applying for writ of certiorari, stay, prohibition, mandamus, Parish of Terrebonne, 32nd Judicial District Court, Div. “D”, No. 76754; to the ' Court of Appeal, First Circuit, No. KW-84-1130.

Denied.


text:
    Goldie Hause KIZER v. Fred LILLY, Jr.
    No. 84-CC-1509.
    Supreme Court of Louisiana.
    Sept. 28, 1984.
   In re Goldie Hause Kizer, applying for writ of certiorari, writ of review, stay, prohibition, and mandamus to the Court of Appeal, First Circuit, No. CW-84-0943; Parish of East Feliciana 20th Judicial District Court, Division “B”, No. 19716.

Granted.


text:
    STATE of Louisiana ex rel. Keith JAMERSON v. STATE of Louisiana.
    No. 84-KH-1292.
    Supreme Court of Louisiana.
    Sept. 28, 1984.
   In re Keith Jamerson, applying for supervisory writs of certiorari, habeas corpus, mandamus to the Criminal District Court, Parish of Orleans, Nos. 296101 and 295723, Section “E”.

Granted. The Court of Appeal is ordered to act within 4 days on the pending mandamus petition filed in early June, 1984.


text:
    G. STREET EXPRESS, INC. v. Rick JAMES, Domino Production Company, Inc. and Narby Walters Associates.
    No. 84-CC-1187.
    Supreme Court of Louisiana.
    Sept. 28, 1984.
   In re Budd & Wiley and Allen Haymon, applying for writ of certiorari and/or review to the Civil District Court, Parish of Orleans, No. 83-20300; Fourth Circuit Court of Appeal, No. C-2327.

Not considered. Not timely.


text:
    STATE of Louisiana, ex rel. Glenn S. PASSMAN v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 83-KH-1484.
    Supreme Court of Louisiana.
    Sept. 28, 1984.
   In re Glenn S. Passman, applying for supervisory writs, to the 22nd Judicial District Court, Parish of St. Tammany, No. 44098, Division "C”.

Denied.


text:
    STATE of Louisiana, ex rel., Charles THOMPSON v. Ross MAGGIO, Jr., Warden.
    No. 83-KH-1531.
    Supreme Court of Louisiana.
    Sept. 28, 1984.
   In re Charles Thompson, applying for writs of certiorari, prohibition and mandamus, Parish of Caddo, Nos. 104-093 and 112-274.

Denied.


text:
    STATE of Louisiana, ex rel., George MEALEY v. Honorable Rudolph F. BECKER, III, Judge, Section “E”, Parish of Orleans.
    No. 83-KH-1559.
    Supreme Court of Louisiana.
    Sept. 28, 1984.
   In re George Mealey, applying for writs of certiorari, prohibition, mandamus and habeas corpus review, Parish of Orleans, No. 228-202.

Denied.


text:
    STATE of Louisiana ex rel. Sammy Glynn LAWSON v. Ross MAGGIO, Warden.
    No. 83-KH-1604.
    Supreme Court of Louisiana.
    Sept. 28, 1984.
   In re Sammy Glynn Lawson, applying for writ of habeas corpus, Parish of Webster, Twenty-Sixth Judicial District Court, No. 45819.

Denied.


text:
    STATE of Louisiana ex rel. Glenn HOUSTON v. Charles C. FOTI, Jr.
    No. 83-KH-1617.
    Supreme Court of Louisiana.
    Sept. 28, 1984.
   In re Glenn Houston, applying for remedial writ, from Criminal District Court, Parish of Orleans, Section G, No. 272-293.

Denied.


text:
    STATE of Louisiana, ex rel. Sterling COLLINS, a/k/a James Taylor, v. John T. KING, Secretary, Louisiana Department of Corrections.
    No. 83-KH-1638.
    Supreme Court of Louisiana.
    Sept. 28, 1984.
   In re Sterling Collins, a/k/a James Taylor, applying for remedial writs, from Criminal District Court, Parish of Orleans, No. 237-931.

Denied.


text:
    Byron RIDEAUX v. Larry JEANE, Warden, Camp Beauregard WTF-N.
    No. 83-KH-1716.
    Supreme Court of Louisiana.
    Sept. 28, 1984.
   In re Byron Rideaux, applying for writs of certiorari, mandamus, habeas corpus, and prohibition to the Twenty-seventh Judicial District Court, Parish of St. Landry, No. 34846.

Denied.


text:
    STATE of Louisiana, ex rel. Charles Leonard ALEXANDER v. Ross MAGGIO, Jr., Warden.
    No. 83-KH-1758.
    Supreme Court of Louisiana.
    Sept. 28, 1984.
   In re Charles Leonard Alexander, applying for writ of habeas corpus, Third Judicial District Court, No. 23631, Parish of Lincoln.

^Denied.


text:
    STATE of Louisiana, ex rel. Rennie G. ATWELL v. Ross MAGGIO, Jr., Warden.
    No. 83-KH-1775.
    Supreme Court of Louisiana.
    Sept. 28, 1984.
   In re Rennie G. Atwell, applying for remedial writ, Criminal District Court, No. 248-717, Parish of Orleans.

Denied.


text:
    STATE of Louisiana, ex rel. Milton L. SUMLIN v. Ross MAGGIO, Jr., Warden.
    No. 83-KH-1777.
    Supreme Court of Louisiana.
    Sept. 28, 1984.
   In re Milton L. Sumlin, applying for writ of habeas corpus and/or mandamus, Criminal District Court, No. 282-752, Parish of Orleans.

Denied.


text:
    STATE of Louisiana, ex rel., Gerard DAVE v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 83-KH-1832.
    Supreme Court of Louisiana.
    Sept. 28, 1984.
   In re Gerard Dave, applying for writs of certiorari, prohibition, mandamus or habeas corpus, Parish of Orleans, No. 276-406.

Denied.


text:
    STATE of Louisiana, ex rel., Bob SIMMONS v. PARISH OF CALCASIEU and Joey Alcede.
    No. 83-KH-1888.
    Supreme Court of Louisiana.
    Sept. 28, 1984.
   In re Bob Simmons, applying for remedial writ, 14th Judicial District Court, Parish of Calcasieu, Nos. 2371-80 and 2009-81; Third Circuit Court of Appeal, No. K83-786.

Denied.


text:
    STATE of Louisiana ex rel., Betty Jean RADCLIFF v. J.W. JONES, Warden.
    No. 83-KH-2252.
    Supreme Court of Louisiana.
    Sept. 28, 1984.
   In re Betty Jean Radcliff, applying for remedial writ, from the Fourth Judicial District Court, Parish of Ouachita, No. 39539.

Denied.


text:
    Mary M. HYATT, et als. v. David BURRUS, et als.
    No. 84-CC-1191.
    Supreme Court of Louisiana.
    Sept. 28, 1984.
   In re Oren M. Welborn, applying for writs of certiorari and review to the Civil District Court, Parish of Orleans, No. 84-15594, Section “B”, from the Fourth Circuit Court of Appeal, No. 2112.

Denied.


text:
    Benjamin W. DART, Jr. v. C.L. THORNTON, Kathryn Thornton, C.L. Thornton d/b/a L & M Contractors, Inc.
    No. 84-C-1194.
    Supreme Court of Louisiana.
    Sept. 28, 1984.
   In re Benjamin W. Dart, Jr., applying for writs of certiorari and review, to the First Circuit Court of Appeal, No. 83-CA-0509, from the Twentieth Judicial District Court, Parish of East Feliciana, No. 17926, Division “B”.

Denied.


text:
    STATE of Louisiana ex rel. Herman SMITH, Jr. a/k/a Herman Ijabu Shabazz v. CIVIL DISTRICT COURT, PARISH OF ORLEANS.
    No. 84-CD-1258.
    Supreme Court of Louisiana.
    Sept. 28, 1984.
   In re Herman Smith, Jr. a/k/a Herman Ijabu Shabazz, applying for writ of mandamus to the Civil District Court, Parish of Orleans, No. 81-3693, Section “E”.

Denied. The application is moot.


text:
    STATE of Louisiana v. Ronald BARTHE.
    No. 84-CK-1263.
    Supreme Court of Louisiana.
    Sept. 28, 1984.
   In re Ronald Barthe, applying for writ of certiorari, mandamus and prohibition to the Orleans Parish Juvenile Court, Parish of Orleans, No. 164-672, Section B; Fourth Circuit Court of Appeal, No. C-2325.

Denied.

CALOGERO and DENNIS, JJ., would grant the writ.


text:
    Carol AMATO, Individually, and as Natural Tutrix of the Minor, Nichole Yvette Cossé, Freda Oddo, Cheryl Cossé, LeBreton and Tina Cossé v. Freda Oddo GREEN, Individually, and as Executrix of the Succession of Hilda Wilson Gabert.
    No. 84-CC-1701.
    Supreme Court of Louisiana.
    Sept. 28, 1984.
   In re Cossé, Irvy E. Jr., applying for writ of certiorari, stay, Parish of Tangipahoa, 21st Judicial District Court, Div. “E”, No. 69-951; to the Court of Appeal, First Circuit, No. CW 84-0604.

Denied.

CALOGERO and MARCUS, JJ., would grant the writ.


text:
    HONEYWELL, INC. v. JIMMIE B. GUINN, INC., Jesse F. Heard & Sons, Inc. and Travelers Indemnity Company.
    No. 84-C-1130.
    Supreme Court of Louisiana.
    Sept. 28, 1984.
   In re Honeywell, Inc., applying for writs of certiorari and/or review to the Third Circuit Court of Appeal, No. 83-207; 28th Judicial District Court, Parish of LaSalle, No. 18086.

Prior report: 449 So.2d 1382.

Granted.


text:
    STATE of Louisiana ex rel. Arthur TURNER v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 84-KD-1283.
    Supreme Court of Louisiana.
    Sept. 28, 1984.
   In re Ross Maggio, Jr., Warden, applying for writs of certiorari, mandamus, prohibition and stay order, to the 10th Judicial District Court, Parish of Natchitoches, No. 35522.

Granted.


text:
    STATE of Louisiana v. Jack SEGURA.
    No. 84-K-1468.
    Supreme Court of Louisiana.
    Sept. 28, 1984.
   In re Segura, Jack, applying for writ of certiorari, to the Court of Appeal, Third Circuit, No. CR83-640; Parish of Iberia, 16th Judicial District Court, Div. “C”, No. 33912.

Prior report: 454 So.2d 837.

Granted. Case remanded to the Court of Appeal to require defense counsel to file assignments of error in the district court and for consideration by the Court of Appeal.


text:
    STATE of Louisiana v. Kevin WISE.
    No. 84-KH-1672.
    Supreme Court of Louisiana.
    Sept. 28, 1984.
   In re Wise, Kevin, applying for remedial writ, Parish of Orleans, Criminal District Court, Div. “G”, No. 298-819.

Granted for the sole purpose of transferring to the Court of Appeal, Fourth Circuit, for consideration.


text:
    LOUISIANA STATE BAR ASSOCIATION v. C. Edward KARST.
    No. 84-OB-0586.
    Supreme Court of Louisiana.
    Sept. 28, 1984.
   In re C. Edward Karst, applying for reinstatement to the Louisiana State Bar Association.

Reinstatement denied.


text:
    LOUISIANA STATE BAR ASSOCIATION v. Frank C. O’HALLORAN, Jr.
    No. 84-OB-0807.
    Supreme Court of Louisiana.
    Sept. 28, 1984.
   In re Frank C. O’Halloran, Jr., applying for re-admission to the Louisiana State Bar Association.

Denied.


text:
    HEIRS of Edith HUTTON a/k/a Self v. Fannie T. SELF.
    No. 84-C-1203.
    Supreme Court of Louisiana.
    Sept. 28, 1984.
   In re Heirs of Edith Hutton a/k/a Self, applying for writs of certiorari, prohibition and mandamus to the First Circuit Court of Appeal, No. 83-CA-0474; 21st Judicial District Court, Parish of St. Helena, Division “E”, No. 9577.

Prior report: 449 So.2d 553.

Not considered. Not timely filed.


text:
    STATE ex rel. Brogan C. YOUNG v. Ross MAGGIO, Jr.
    No. 83-KH-1128.
    Supreme Court of Louisiana.
    Sept. 28, 1984.
   In re Brogan C. Young, applying for reconsideration of writ denial of February 16, 1984, 445 So.2d 448, Criminal District Court, Parish of Orleans, No. 234-610.

Denied.

CALOGERO, J., would grant the writ.


text:
    STATE of Louisiana ex rel. John BOUDREAUX, Jr. v. Ross MAGGIO, Jr.
    No. 83-KH-1606.
    Supreme Court of Louisiana.
    Sept. 28, 1984.
   In re John Boudreaux, Jr., applying for writ of habeas corpus from the 24th Judicial District Court, Parish of Jefferson, No. 77-2329, Division “I”.

Denied.


text:
    STATE of Louisiana v. Spencer RICHARDSON.
    No. 83-KH-1632.
    Supreme Court of Louisiana.
    Sept. 28, 1984.
   In re Spencer Richardson, applying for writ of certiorari and review from Criminal District Court, Section G, Parish- of Orleans, No. 235-761.

Denied.


text:
    STATE of Louisiana ex rel. Sheila JAMES v. Johnnie JONES, Warden, Louisiana Correctional Institute for Women.
    No. 83-KH-1711.
    Supreme Court of Louisiana.
    Sept. 28, 1984.
   In re Sheila James, applying for writ of habeas corpus, Parish of Orleans, Criminal District Court, No. 250-108, Section “E”.

Writ denied.


text:
    STATE of Louisiana ex rel. Marvin STEWART v. Donald R. GUILLORY, Warden, Wade Correctional Center.
    No. 83-KH-1748.
    Supreme Court of Louisiana.
    Sept. 28, 1984.
   In re Marvin Stewart, applying for remedial writ, to the First Judicial District Court, Parish of Caddo, No. 120683-A, Court of Appeal, 2nd Circuit, No. 15801-KH.

Denied.


text:
    STATE ex rel. Ellis A. GOODWIN, Jr. . v. Ross MAGGIO, Jr. Warden, Louisiana State Penitentiary, State of Louisiana.
    No. 83-KH-1757.
    Supreme Court of Louisiana.
    Sept. 28, 1984.
   In re State ex rel., Ellis A. Goodwin, Jr., applying for writ of habeas corpus to the 36th Judicial District Court, Parish of Beauregard, Nos. CR-524-80 and CR-556-80.

Denied.


text:
    STATE of Louisiana v. Tyronne J. FORREST, Sr.
    No. 83-KH-1818.
    Supreme Court of Louisiana.
    Sept. 28, 1984.
   In re Tyronne J. Forrest, Sr., applying for writ of certiorari, habeas corpus, mandamus, prohibition, supervisory and remedial writs, Parish of Orleans, No. 269-672.

Writ denied.


text:
    STATE of Louisiana ex rel. Norman BATES v. Ross MAGGIO, Jr., Warden.
    No. 83-KH-2143.
    Supreme Court of Louisiana.
    Sept. 28, 1984.
   In re Norman Bates, applying for a writ of habeas corpus to the Criminal District Court, Parish of Orleans, Section I, No. 257-740; Fourth Circuit Court of Appeal, No. K 1402.

Denied.

DENNIS, J., would grant the writ.


text:
    STATE of Louisiana ex rel. Carl SANGER a/k/a James Wilson v. FIRST JUDICIAL DISTRICT COURT.
    No. 83-KH-2248.
    Supreme Court of Louisiana.
    Sept. 28, 1984.
   In re Carl Sanger a/k/a James Wilson, applying for Writ of Habeas Corpus, to the First Judicial District Court, Parish of Cad-do, No. 109527.

Writ denied.


text:
    STATE of Louisiana ex rel. John Norman KENT v. CLERK OF COURT 19TH JUDICIAL DISTRICT COURT.
    No. 83-KH-2441.
    Supreme Court of Louisiana.
    Sept. 28, 1984.
   In re John Norman Kent, applying for remedial writ from the 19th Judicial District Court, Parish of East Baton Rouge, No. 2-78-99.

Writ denied.


text:
    STATE of Louisiana ex rel. William POWELL v. Hon. Ross MAGGIO, Warden, et al., Louisiana State Penitentiary a Division of La. Dept. Corrs.
    No. 84-KH-0013.
    Supreme Court of Louisiana.
    Sept. 28, 1984.
   In re William Powell, applying for application for writ of certiorari from the Criminal District Court, No. 245-452, Parish of Orleans, Section D.

Denied.


text:
    Harold KERWIN, Sr. v. NU-WAY CONSTRUCTION SERVICE, INC., et al.
    No. 84-C-1161.
    Supreme Court of Louisiana.
    Sept. 28, 1984.
   In re Brown & Root, Inc., and Highlands Insurance Company, applying for writ of certiorari to the Fifth Circuit Court of Appeal, No. 83-CA-83; 24th Judicial District Court, Parish of Jefferson, No. 278-038, Division G.

Prior report: 451 So.2d 1193.

Denied.


text:
    Mrs. Rena HOGAN, et al. v. STATE FARM AUTOMOBILE INSURANCE COMPANY et al.
    No. 84-C-1168.
    Supreme Court of Louisiana.
    Sept. 28, 1984.
   In re Mrs. Rena Hogan, et al., applying for writ of review to the First Circuit Court of Appeal, No. 83-CA-0480; Parish of St. Tammany, 22nd Judicial District Court, No. 62750.

Prior report: 449 So.2d 555.

Denied.

MARCUS and DENNIS, JJ., would grant the writ.


text:
    BAKER ENTERPRISES, INC. v. Greg ALLEN d/b/a Allen Office Supplies and Allen, Inc.
    No. 84-C-1192.
    Supreme Court of Louisiana.
    Sept. 28, 1984.
   In re Greg Allen d/b/a Allen Office Supplies and Allen, Inc., applying for writ of certiorari and/or review to the First Circuit Court of Appeal, No. 83-CA-0524; 19th Judicial District Court, Parish of East Baton Rouge, No. 248059, Division “J”.

Prior report: 449 So.2d 571.

Denied.


text:
    William M. HATCHETT v. Margarita HATCHETT.
    No. 84-C-1195.
    Supreme Court of Louisiana.
    Sept. 28, 1984.
   In re Margarita Hatchett, applying for writ of certiorari or review to the First Circuit Court of Appeal, No. 83-CA-1165; The Family Court, Parish of East Baton Rouge, 19th Judicial District Court, No. 56598, Division B.

Prior report: 449 So.-2d 626.

Writ denied.


text:
    DEPARTMENT OF HEALTH AND HUMAN RESOURCES, SOUTH LOUISIANA MEDICAL CENTER v. Blaz A. TOUPS.
    No. 84-C-1197.
    Supreme Court of Louisiana.
    Sept. 28, 1984.
   In re Department of Health and Human Resources, South Louisiana Medical Center, applying for writs of certiorari, to the First Circuit Court of Appeal, No. 83-CA-0522, from the Civil Service Commission, No. 3409.

Prior report: 451 So.2d 1126.

Denied.

BLANCHE, J., would grant the writ.


text:
    Ricard ALEXIS v. NEW ORLEANS PUBLIC SERVICE, INC.
    No. 84-C-1200.
    Supreme Court of Louisiana.
    Sept. 28, 1984.
   In re New Orleans Public Service, Inc., applying for writ of certiorari or review to the Fourth Circuit Court of Appeal, No. CA-1537, Civil District Court, Parish of Orleans, No. 82-17903.

Prior report: 449 So.2d 1084.

Denied.

LEMMON, J., would grant the writ.


text:
    Yvonne AUCOIN v. PARISH OF EAST BATON ROUGE.
    No. 84-C-1202.
    Supreme Court of Louisiana.
    Sept. 28, 1984.
   In re Yvonne Aucoin, applying for writ of certiorari and/or review to the First Circuit Court of Appeal, No. 83-CA-0779, from the Nineteenth Judicial District Court, Parish of East Baton Rouge, No. 226065.

Prior report: 450 So.2d 1051.

Denied.


text:
    Robert W. FREEMAN v. Gerald MYLES, Obie Maryland, and State Farm Mutual Automobile Insurance Company.
    No. 84-C-1209.
    Supreme Court of Louisiana.
    Sept. 28, 1984.
   In re Robert W. Freeman, applying for writ of certiorari, to the Fourth Circuit Court of Appeal, No. CA-1442, from the Civil District Court, Parish of Orleans, No. 79-10912, Section “J”.

Prior report: 449 So.2d 1096.

Denied.


text:
    Willie RICHARDSON v. LSU MEDICAL CENTER, et al.
    No. 84-C-1213.
    Supreme Court of Louisiana.
    Sept. 28, 1984.
   In re Willie Richardson, applying for writ of certiorari to the Second Circuit Court of Appeal, No. 16225-CA, Parish of Caddo, First Judicial District Court, No. 289411. Prior report: 450 So.2d 785.

Denied.


text:
    Cecil Thomas GRAY, Jr. v. Doris Patricia Barker GRAY.
    No. 84-C-1222.
    Supreme Court of Louisiana.
    Sept. 28, 1984.
   In re Cecil Thomas Gray, Jr., applying for writ of review to the Second Circuit Court of Appeal, Nos. 15962-CA and 16211-CA, from the First Judicial District Court, Parish of Caddo, No. 283189.

Prior report: 451 So.2d 579.

Denied.


text:
    Ethel P. ANDERSON v. The POLICE JURY OF the PARISH OF EAST FELICIANA.
    No. 84-C-1245.
    Supreme Court of Louisiana.
    Sept. 28, 1984.
   In re Ethel P. Anderson, applying for writ of certiorari and/or review to the First Circuit Court of Appeal, No. 83-CA-0733; 20th Judicial District Court, Parish of East Feliciana, No. 18382, Div. B.

Prior report: 452 So.2d 730.

Denied. Result correct.


text:
    Christopher M. MEEKS v. ROMEN PETROLEUM, INC.
    No. 84-C-1246.
    Supreme Court of Louisiana.
    Sept. 28, 1984.
   In re Romen Petroleum, Inc., applying for writ of certiorari, or review, to the First Circuit Court of Appeal, No. 83-CA-0644; Parish of East Baton Rouge, 19th Judicial District Court, No. 255-376.

Prior report: 452 So.2d 1191.

Denied.


text:
    Wanda Laverne COLLINS v. J.C. PENNEY COMPANY, INC. and Liberty Mutual Insurance Company.
    .No. 84-C-1251.
    Supreme Court of Louisiana.
    Sept. 28, 1984.
   In re Wanda Laverne Collins, applying for writs of certiorari and/or review, mandamus, remedial and supervisory writs to the First Circuit Court of Appeal, No. 83-CA-0640; 19th Judicial District Court, Parish of East Baton Rouge, Section B, No. 250713.

Prior report: 450 So.2d 1003.

Denied.


text:
    Nicholas WILSON v. A-1 INDUSTRIES, INC., and Fireman’s Insurance Company.
    No. 84-C-1257.
    Supreme Court of Louisiana.
    Sept. 28, 1984.
   In re A-l Industries, Inc., and Fireman’s Insurance Company, applying for writs of mandamus, certiorari and review to the Fourth Circuit Court, of Appeals, No. CA-1598, to the Civil District Court, Parish of Orleans, No. 83-10786.

Prior report: 451 So.2d 1251.

Denied.


text:
    Blake P. ROGERS v. AMBASSADOR INSURANCE COMPANY.
    No. 84-C-1265.
    Supreme Court of Louisiana.
    Sept. 28, 1984.
   In re Ambassador Insurance Company, applying for writ of certiorari and/or review to the Fifth Circuit Court of Appeal, No. 83-CA-803; 24th Judicial District Court, Parish of Jefferson, Division “G”, No. 272-982.

Prior report: 452 So.2d 261.

Denied.


text:
    Joyce OSWALD, TUTRIX OF the Minor Children, Shannon OSWALD and Stacey Oswald v. RAPIDES IBERIA MANAGEMENT ENTERPRISES, INC., a/k/a Bossier Health Care Center and Select Insurance Company a/k/a The Gulf Insurance Group, in Solido.
    No. 84-C-1267.
    Supreme Court of Louisiana.
    Sept. 28, 1984.
   In re Joyce Oswald, applying for writ of certiorari and review to the Second Circuit Court of Appeal, Nos. 16241 and 16242, from the Twenty-Sixth Judicial District Court, Parish of Bossier, Nos. 59858 and 59718.

Prior report: 452 So.2d 1258.

Denied.


text:
    Griffin M. OBY Through His Provisional Curator, Mrs. Betty Scott GEORGE v. Lloyd P. CHAMPAGNE.
    No. 84-C-1272.
    Supreme Court of Louisiana.
    Sept. 28, 1984.
   In re Lloyd P. Champagne, applying for writ of certiorari and/or review to the First Circuit Court of Appeal, No. 83-CA-0757; 19th Judicial District Court, Parish of East Baton Rouge, No. 179558, Division F.

Prior report: 451 So.2d 674.

Denied.


text:
    L.D. JOHNSON v. The STATE of Louisiana, Through the DEPARTMENT OF PUBLIC SAFETY, the State Police, et al.
    No. 84-C-1274.
    Supreme Court of Louisiana.
    Sept. 28, 1984.
   In re L.D. Johnson, applying for certiora-ri, or writ of review, to the Court of Appeal, Third Circuit, No. 83-601; 9th Judicial District Court, Parish of Rapides, No. 122165.

Prior report: 451 So.2d 104.

Denied.


text:
    Phillip W. HOUSE and Karen House v. Joe E. THOMPSON and ABC Insurance Company.
    No. 84-C-1278.
    Supreme Court of Louisiana.
    Sept. 28, 1984.
   In re Joe E. Thompson, applying for writs of certiorari and review to the First Circuit Court of Appeal, No. 83-CA-0695, from the Nineteenth Judicial District Court, Parish of East Baton Rouge, No. 250410, Division “I”.

Prior report: 452 So.2d 1195.

Denied. Result is correct.


text:
    Carol DUCOTE v. LIBERTY MUTUAL INSURANCE COMPANY.
    No. 84-C-1280.
    Supreme Court of Louisiana.
    Sept. 28, 1984.
   In re Carol Ducote, applying for writs of certiorari, prohibition, and mandamus to the Fourth Circuit Court of Appeal, No. CA-0511, from the Civil District Court, Parish of Orleans, No. 77-7731.

Prior report: 451 So.2d 1211.

Denied.


text:
    STATE ex rel. Jerry Ervin BUTTNER v. STATE of Louisiana.
    No. 84-KH-1331.
    Supreme Court of Louisiana.
    Sept. 28, 1984.
   In re Jerry Ervin Buttner, applying for writ of mandamus to the Criminal District Court, Parish of Orleans, No. 275-699.

Denied.


text:
    STATE of Louisiana v. Dion MITCHELL.
    No. 84-K-1384.
    Supreme Court of Louisiana.
    Sept. 28, 1984.
   In re Mitchell, Dion, applying for writ of review to the Court of Appeal, Third Circuit, No. CR-83-854; Parish of Natchitoch-es, 10th Judicial District Court, Div. “A”, No. 73153 A.

Prior report: 453 So.2d 1260.

Denied.


text:
    STATE of Louisiana v. Freddie ARMSTRONG.
    No. 84-K-1397.
    Supreme Court of Louisiana.
    Sept. 28, 1984.
   In re Armstrong, Freddie, applying for writ of certiorari, writ of review to the Court of Appeal, Third Circuit, No. CR-83-840; Parish of Rapides, 9th Judicial District Court, Div. “A”, No. ,204396.

Prior report: 453 So.2d 1256.

Denied.

LEMMON, J., would grant the writ.


text:
    STATE of Louisiana v. Michael DAVIS.
    No. 84-K-1406.
    Supreme Court of Louisiana.
    Sept. 28, 1984.
   In re State of Louisiana, applying for writ of review to the Court of Appeal, Fifth Circuit, Nos. 83-KA-691, 83-KA-692 and 83-KA-693; Parish of Jefferson, 24th Judicial District Court, Div. “I”, Nos. 83-205, 83-767 and 893-845. Prior report: 453 So.2d 642.

Denied.


text:
    STATE of Louisiana v. Russell PORTER and Sena Mae Whitehead Porter.
    No. 84-K-1421.
    Supreme Court of Louisiana.
    Sept. 28, 1984.
   In re Porter, Russell et al., Porter, Sena Mae Whitehead, applying for writ of certio-rari, writ of review to the Court of Appeal, Third Circuit, No. CR83-683; Parish of La-Salle, 28th Judicial District Court, Div. “ ”, No. 27048.

Prior report: 454 So.2d 220.

Writ denied.


text:
    STATE of Louisiana v. Jackie R. JACKSON.
    No. 84-K-1461.
    Supreme Court of Louisiana.
    Sept. 28, 1984.
   In re Jackson, Jackie R., applying for writ of review to the Court of Appeal, Second Circuit, No. 16223-KA; Parish of Caddo, 1st Judicial District Court, Div. “D”, No. 122336.

Prior report: 452 So.2d 1250.

Denied.


text:
    STATE of Louisiana v. Tyrone ANDREWS.
    No. 84-K-1464.
    Supreme Court of Louisiana.
    Sept. 28, 1984.
   In re Andrews, Tyrone, applying for writ of certiorari, writ of review to the Court of Appeal, First Circuit, No. 83-KA-1160; Parish of East Baton Rouge, 19th Judicial District Court, Div. “G”, No. 12-82-73.

Prior report: 451 So.2d 175.

Denied.


text:
    STATE of Louisiana v. Lionel BENTON.
    No. 84-K-1482.
    Supreme Court of Louisiana.
    Sept. 28, 1984.
   In re Benton, Lionel, applying for writ of certiorari, writ of review to the Court of Appeal, First Circuit, No. KA-0016; Parish of East Baton Rouge, 19th Judicial District Court, Div. “G”, No. 282-142.

Prior report: 453 So.2d 993.

Denied.


text:
    STATE of Louisiana v. Ronald BOURGEOIS.
    No. 84-KO-1497.
    Supreme Court of Louisiana.
    Sept. 28, 1984.
   In re Bourgeois, Ronald, applying for remedial to the Court of Appeal, First Circuit, No. 83-KA-1124; Parish of La-fourche, 17th Judicial District Court, Div. “B”, No. 130223.

Prior report: 451 So.2d 172.

Denied.


text:
    STATE of Louisiana v. John DUNN.
    No. 84-K-1500.
    Supreme Court of Louisiana.
    Sept. 28, 1984.
   In re Dunn, John, applying for writ of certiorari to the Court of Appeal, Second Circuit, No. 16275-KA; Parish of Winn, 8th Judicial District Court, Div. 28191. ", No.

Prior report: 452 So.2d 304.

Denied.


text:
    Richard M. DAWES v. Nancy Zoder DAWES.
    No. 84-CC-1517.
    Supreme Court of Louisiana.
    Sept. 28, 1984.
   In re Dawes, Richard M., applying for writ of certiorari, supervisory writs, prohibition and mandamus to the Court of Appeal, Fourth Circuit, No. C — 2483; Parish of Orleans, Civil District Court, Div. “A”, No. 81-4631.

Prior report: 454 So.2d 311.

Denied. Trial judge may issue a protective order limiting the scope of discovery.

CALOGERO and DENNIS, JJ., would grant the writ.


author:
KLEES, Judge. REDMANN, Chief Judge,
      REDMANN, Chief Judge,

text:
    Russell PALMER v. WAGUESPACK PRATT, INC., and Waguespack Pratt Management Company, Inc.
    No. CA-1420.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 6, 1984.
    Rehearing Denied Aug. 24, 1984.
    Rehearing Denied Oct. 29, 1984.

      Edward F. Wegmann, New Orleans, for defendants-appellants Waguespack, Pratt, Inc. and Waguespack, Pratt Management Company, Inc.
    Avram C. Herman, David L. Herman, New Orleans, for plaintiff-appellee Russell Palmer.
    Before REDMANN, C.J., and KLEES and CIACCIO, JJ.
   KLEES, Judge.

This suit was brought by Russell Palmer against his former employer, Wag-uespack-Pratt Management, Inc., along with Waguespack Pratt, Inc. and Wagues-pack, Pratt Service and Development Company, Inc. for commissions Palmer alleged were due him under a contract of employment with the defendants. He also sought judgment for commissions on any sums due the defendants as a result of the renewal or exercise of options relating to those leases. In addition, Palmer sought judgment for bonuses which he claimed the defendant corporations owed to him. In a third-party petition the plaintiff brought suit against Refco-Poydras Hotel Joint Venture and Waguespack, Pratt, Inc., for commissions due on a lease executed between Refco-Poydras Hotel Joint Venture and the Imperial Palace. Prior to the trial of the case on the merits, that claim was compromised by the plaintiff and Refco-Poydras by a compromise agreement concurred in by the defendants Waguespack, Pratt, Inc., and Waguespack, Pratt Service and Development Company, Inc. After trial on the merits before a commissioner of the Civil District Court, the plaintiff was awarded judgment in the amount of $15,-863.78 for various commissions earned, reserving to him his right to litigate other sums claimed to be due him and not previously adjudicated. The defendants assign as error the rendering of judgment against Waguespack, Pratt, Inc. and Waguespack, Pratt Service and Development Company, Inc. The record reflects that Waguespack, Pratt Service and Development Company, Inc., no longer exists due to its merger with Waguespack, Pratt Management, Inc. We amend the judgment of the trial court with respect to the named defendants, substituting Waguespack, Pratt Management, Inc., in their stead as the admitted employer of the plaintiff. For the following reasons we affirm the award of $750.00 (Roger Johns); $1,283.75 (Georgie Porgie); $360.00 (Regency Coffee); $112.50 (Royal Antiques); and $4,049 (Cloth World of La., Inc.). We reverse with respect to the remainder of the judgment.

FACTS

The plaintiff, Russell Palmer, was hired by Waguespack, Pratt Service and Development Company, Inc. in 1975 after having recently earned his MBA degree at the University of Texas. He was hired at a salary of $12,000.00 per year to work in a management capacity and more specifically to lease space in the new Poydras Plaza Shopping Mall. Plaintiff became a licensed real estate agent subsequent to joining Waguespack, Pratt Service and Development Company, Inc. Waguespack, Pratt, Inc., had a listing agreement with the owners of the Poydras Plaza, which is located adjacent to the Hyatt Regency Hotel, by the terms of which they would receive a flat fee for leasing its space. This agreement was later modified giving Wagues-pack, Pratt, Inc., a commission on leases rather than a flat fee. At that time the plaintiff was leasing out the shopping mall very successfully. He was told that he would be given 50% of the 6% commission received by Waguespack, Pratt, Inc., on all leases which earned them a commission in Poydras Plaza. In 1976, the plaintiffs salary was raised to $15,000.00 per year and he at some point in time acquired a company car along with reimbursement for travel and entertainment expenses. He also assumed the management of Waguespack, Pratt Service and Development Company, Inc., which was subsequently merged into Waguespack, Pratt Management, Inc. His salary in 1977 was increased to $18,000.00 per year and in the latter part of 1978 it was increased to $22,500.00 per year. The plaintiff received a check in 1977 in an amount totalling 50% of a 6% commission earned by Waguespack, Pratt, Inc., on leases confected by the plaintiff in the Poydras Plaza Shopping Mall. He received a check in 1978 which stated that it was for commissions earned in 1977, which included those leases in Poydras Plaza and one in Westside Shopping Center. The plaintiff resigned his employment with Wagues-pack, Pratt Management, Inc., on January 23, 1979. The plaintiff thereafter made demand on the defendant for the sums he claimed were due from commissions on leases he perfected or helped perfect. Upon rejection of his claims this suit was filed.

Employment Contract

In his pleadings, the plaintiff asserts that the compensation agreement between himself and Waguespack, Pratt Management, Inc., was a handwritten item dated January 1, 1978 and signed by Jeff Haynes, Poche Waguespack’s son-in-law. He claimed in the second amended petition that the agreed upon compensation was to be that,

“Plaintiff was to receive $18,000.00 per year salary, plus 50% of all commissions earned by defendants for leases which were either procured by plaintiff without an outside broker or agent, or leases for which plaintiff had obtained the listing contract, including but not limited to the Poydras Plaza Retail Mall, the River-lands Shopping Center, and the Westside Shopping Center.
Finally, plaintiff was to receive a bonus of 10% of any and all profits earned by defendants in excess of $25,000.00 and 15% of any and all profits earned by defendants in excess of $50,000.00.”

The trial court in its reasons for judgment found that there was no meeting of the minds, no consent, and no understanding. In other words, no contract between the parties evidenced by the writing introduced by the plaintiff. After our review of this voluminous record, we agree with the trial court and conclude that the writing in question did not create a contract between the parties.

Poydras Plaza

The facts as brought out at trial support plaintiffs contention that it was understood that he would be compensated for leases which he obtained in Poydras Plaza because of the difficulty the defendant was having leasing that space. Plaintiff was in fact compensated on a 50% of a 6% commission basis on those leases he obtained on which Waguespack, Pratt, Inc., earned a commission. The commissions would have continued had plaintiff not terminated his employment with defendant. Mr. Poche Waguespack, president of the defendant corporation, stated at trial that he hired the plaintiff to lease Poydras Plaza and paid him a commission or bonus on those leases. Thus, we conclude that there was an understanding between the parties as to those specific leases. Simply because the plaintiff is no longer in the defendant’s employ does not mean that he intended to forfeit those amounts earned by him. If his primary job as an employee of Wagues-pack, Pratt Service and Development Company, Inc., was to service the listing contract with Refco — Poydras Hotel Joint Venture and he performed leasing activities for which he was compensated in addition to his salary for those specific leases, then he is entitled to recover any monies still due him under those leases. See Tinney v. W.J. Tessier Realtors, 447 So.2d 1099 (La.App. 4th Cir.1984). We therefore affirm with respect to the amounts awarded on the Poydras Plaza leases.

Wendy’s Lease

Our review of the record indicates that the plaintiff has settled any claim to a commission for procuring Wendy’s as a tenant in the Riverland Shopping Center by means of a contract signed by a representative of Waguespack, Pratt, Inc., and the plaintiff as the representative of his current employer, Latter and Blum. The plaintiff chose this method to insure his receipt of a commission as evidenced by the fact that Wendy’s approached Wagues-pack, Pratt, Inc., and requested that they sign the contract. This contract would constitute the law between the parties. See La.C.C. art. 1901. A claim for commissions on that lease is inappropriate in this suit. Since the plaintiff agreed to the terms of the contract, he is bound by them and must seek his commission from Latter and Blum. This contract was entered into at the plaintiff’s insistence in order that his right to a commission be protected. We think that the trial court was clearly wrong in reserving to the plaintiff any right to litigate in the future for sums due as commission on the Wendy’s lease against the defendant when there exists a contract governing the disbursement of that commission.

Westside Shopping Center

The plaintiff claimed commissions on various leases at the Westside Shopping Center on which he was involved while working for Waguespack, Pratt Management, Inc. These commissions were awarded to him by the trial court with the exception of the claim made on the Beaux and Belles lease which was fully paid. Mr. Poche Waguespack admitted at trial that he told the plaintiff he would pay him on that lease and on the extension of the Cloth World lease, but refused to do so when plaintiff left the defendant’s employ. The plaintiff himself said that he was not told directly that he would be paid commissions on the leases for which he claims commissions are due, except for Beaux and Belles and Cloth World. This shopping center had a listing agreement with Waguespack, Pratt, Inc., and had had for many years. It is our understanding that it was the responsibility of Waguespack, Pratt Management, Inc., to service the needs of the lessor and lessees and to work with independent contractors at Waguespack, Pratt, Inc., in leasing available space. Absent some specific agreement between Wagues-pack and the plaintiff that he would be compensated in addition to his salary for management on any leases in addition to Beaux and Belles and Cloth World, we cannot say that he is entitled to them. Plaintiff himself said that he did a great deal of leasing for which he received no compensation and for which he knew none was due. He never claimed commissions on properties he leased for John Hernandez even though they had similar duties and responsibilities. The difference in that ease was that Hernandez was an independent contractor who had a draw against his commissions and plaintiff received a salary and some commissions based on the discretion of Mr. Poche Waguespack. Waguespack does not deny that he agreed to pay a commission on two leases in Westside and one was completely paid, but the plaintiff did not prove that there was any agreement as to the remaining ones. Were we convinced that the plaintiff enjoyed the dual status of salaried employee and independent contractor we would be able to award him not only those commissions, but any commissions due on any lease he con-fected. It is our belief that the plaintiff was primarily a salaried employee who was not entitled to commissions as if he were an independent contractor. He received commissions as an independent contractor would only on certain leases, not on all leases, and he did not show any pattern or practice of payment except as to those leases which the defendant has admitted liability on. The plaintiff attempts to show by his memos and notes that he earned a commission on certain leases. If he were an independent contractor, we would be inclined to agree that he had earned some part of a commission. But since he was a salaried employee heading Waguespack, Pratt Management, Inc., he must show what the agreement was as regards compensation in addition to his salary. The only agreements we find concern the 4 leases in dispute in Poydras Plaza and 2 leases in Westside Shopping Center. Since the commission due on the Beaux & Belle lease has been paid, plaintiff is entitled to the commission on the Cloth World extension only.

Interest on Judgment

Defendant argues in its brief that because of the undue delays in this judicial proceeding they should not be held liable for the payment of interest from the date of judicial demand. Interest is governed by La.C.C. 1938. We find no grounds for exception in the law as a result of a lengthy judicial proceeding. It is indeed unfortunate that this suit was so drawn out, but we cannot find other than that plaintiff is entitled to interest on his judgment at least from the date of judicial demand.

For the above stated reasons we amend the judgment of the trial court naming Waguespack, Pratt, Inc., and Waguespack, Pratt Service and Development Company, Inc., as the parties cast in judgment to reflect that Waguespack, Pratt Management, Inc., is the proper defendant corporation. We affirm the judgment awarding the plaintiff the sums of $750.00 (Roger Johns); $1,283.75 (Georgie Porgie); $360.00 (Regency Coffee); $112.50 (Royal Antiques); and $4,049.80 (Cloth World of La., Inc.). In all other respects the judgment of the trial court is reversed. The costs of this appeal to be borne equally between the parties.

AFFIRMED IN PART; AMENDED IN PART, AND REVERSED IN PART.

ON APPLICATION FOR REHEARING

The plaintiff, Russell Palmer, in his application for rehearing, questions the silence of this Court’s judgment regarding his entitlement to commissions generated by the exercise of any options and/or renewals on the following leases:

Roger Johns
Regency Coffee (Copy)
Royal Antiques
Cloth World of Louisiana

Under the rationale expressed in Tinney v. W.J. Tessier Realtor, 447 So.2d 1099 (La.App. 4th Cir.1984), we are of the opinion that the plaintiff would be entitled to future commissions generated by the exercise of any option and/or renewals on the leases enumerated above.

REHEARING DENIED.

REDMANN, Chief Judge,

concurring in refusal of rehearing.

Our original decree is correct in awarding plaintiff nothing but specific sums on specific leases.

Plaintiffs employment was unlike that of the ordinary real estate agent who is paid nothing but commissions and who might therefore reasonably claim, after leaving employment with a particular broker, entitlement to some part of commissions on renewals of “his” leases (the agent who in fact handles the work involved in renewal is presumably also entitled to some part). Unlike the ordinary agent, plaintiff was being paid $22,500 a year, plus a company car, plus travel and entertainment expenses. Plaintiff was, as our original opinion reasoned, “primarily a salaried employee who was not entitled to commissions as if he were an independent contractor.”

ON APPLICATION FOR REHEARING

In the second application for rehearing, plaintiff Russell Palmer correctly informs this court of our omission of an award to plaintiff of commission’s on the Georgie Porgie renewal.

Accordingly, we supplement our previous order of August 24, 1984 to include the Georgie Porgie lease.

REDMANN, C.J., dissenting.

REDMANN, Chief Judge,

dissenting.

“If a timely application for rehearing has been filed in the court of appeal, and the court of appeal denies the application, the judgment becomes final and definitive unless an application for writ of certiorari to the supreme court is filed within thirty days of the mailing of the notice of a denial of rehearing.” C.C.P. 2166.

This court on August 24, 1984 denied Russell Palmer’s first (and timely) application for rehearing. Once we deny rehearing, we have no power to amend our judgment or to do anything else to prevent it from becoming final and definitive. We are obliged on that basis to deny Russell Palmer’s second application for rehearing.

      . Art. 1901. Binding effect of agreements between parties.
      Agreements legally entered into have the effect of laws on those who have formed them.
      They cannot be revoked, unless by mutual consent of the parties, or for causes acknowledged by law.
      They must be performed with good faith.

      . Time from which legal interest is due
      All debts shall bear interest at the rate of twelve percent per annum from the time they become due, unless otherwise stipulated.