author: DUFRESNE, Judge.

text:
    James E. LAQUE, Jr., Individually, et al. v. ST. CHARLES PARISH, et al. Peggy Marie MADERE, Individually, et al. v. ST. CHARLES PARISH, et al.
    Nos. 83-CA-541, 83-CA-542.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 10, 1984.
    Fred L. Herman, New Orleans, for plaintiff s-appellants.
    Gregory Lannes, Chalmette, for defendants-appellees.
    Before BOUTALL, GRISBAUM and DU-FRESNE, JJ.
   DUFRESNE, Judge.

This is an appeal on a tort suit by the plaintiffs from a summary judgment granted in favor of defendant, Louisiana Department of Transportation and Development (DOTD).

This consolidated ease comes to us on appeal as the result of an automobile-railroad freight train collision, which occurred on August 15, 1981, in Luling, Louisiana. Plaintiffs’ decedents, Warren and Carol Madere, and James and Jeanne Laque, decedents of the plaintiffs in the consolidated case, were killed as a consequence of this mishap.

There is no dispute as to what happened that tragic night. On Saturday, August 15, 1981, at approximately 8:00 P.M., the decedents, James Laque and his wife, Jeanne went to the home of Warren and Carol Madere on Gassen Street, in Luling, Louisiana.

The Laques and the Maderes left the Madere home in the Laques’ automobile, with James Laque driving in a northerly direction on Gassen Street. Gassen Street is a two-way lightly traveled undivided residential street, stretching from River Road in Luling for approximately two miles southward.

Jeanne Laque was seated in the right front seat. Warren Madere was seated in the rear seat on the driver’s side and his wife, Carol, was seated in the rear seat on the passenger side of the automobile.

The Madere residence is approximately /ioth of a mile south of the Missouri Pacific Railroad crossing on Gassen Street.

As the car approached the railroad crossing at Gassen Street, the Missouri Pacific Railroad-Southern Railroad train was traveling eastward. As Laque attempted to cross the railroad track, the train impacted the left side of the Laque’s automobile. All of the occupants of the vehicle were killed as the result of this collision. The Maderes’ seven children, and the Laques’ five children filed a tort suit for damages, alleging negligence on the part of Missouri Pacific Railroad Company, St. Charles Parish and the Louisiana DOTD.

On November 18, 1982, the defendant, DOTD, moved for summary judgment in this matter, which was granted by the trial court. It is from this decision that plaintiffs now appeal.

The plaintiffs specify the following errors on appeal:

1.) The trial court erred in finding that there did not exist a genuine issue of material fact.

2.) The trial court erred in finding that the Louisiana DOTD was not responsible for the maintenance and operation of the Gassen Street crossing.

Defendant, Louisiana DOTD filed the summary judgment motion on the basis of an affidavit by Thomas C. Danna, official custodian of the records for the DOTD, whereby he declared that Gassen Street, located in Luling, Louisiana, “was not and is not now a part of the State Highway System, nor did the Louisiana DOTD have any responsibility for maintenance or marking of the roadway.” This was also supported through a deposition taken of one John Castille.

Because Gassen Street does not fall within the ambit of the State Highway System, the trial court characterized the roadway as local. In other words, in accord with LSA-R.S. 32:41 and 32:42, the trial court recognized that these statutes gave local, parish, and municipal governments the authority to control their highways and roads that are not part of the State Highway System.

The local government is mandated by LSA-R.S. 32:235(B) to place and maintain traffic control devices upon highways under their jurisdiction. The statute provides as follows:

“Local municipal and parish authorities in their respective jurisdictions shall place and maintain such traffic control devices upon highways under their jurisdiction as they may deem necessary to indicate and to carry out the provisions of this Chapter, regulations of the department and commissioner adopted pursuant hereto, and local traffic ordinances adopted pursuant to the authority granted by R.S. 32:41 and R.S. 32:42. All such traffic control devices hereafter erected shall conform to the department’s manual or specifications. If any such device hereafter erected by a political subdivision of this state fails to conform to the manual or specifications, payment of any funds allocated to that political subdivision shall be withheld by the department until the standards established by the department are complied with.”

In granting the motion for summary judgment, the trial court, in part, reasoned as follows:

“Gassen Street is a parish road. The governing body of the Parish is charged directly with the construction, maintenance and operation of parish roads and the Department of Transportation & Development is not responsible for the construction, maintenance and operation of a parish road: Wall v. American Employers Ins. Co., 215 So.2d 913; Highlands Ins. Co. v. La. Dept. of Highways, 303 So.2d 824.”

On appeal, the plaintiffs do not contend that Gassen Street is, or was, a part of the Louisiana State Highway System, however, they contend that defendant, Louisiana DOTD has an affirmative duty to supervise and regulate, in its discretion, “all traffic on all highways” within this state, and that this defendant abused its discretion. The plaintiffs allege that the Louisiana DOTD, with its prior knowledge of the dangerous and ultrahazardous nature of the Gassen Street crossing, took no action to correct the deficiencies, nor undertook to see that the crossing was made safe for vehicular and pedestrian traffic. The plaintiffs conclude that this failure to act, among others, constituted a breach of duty which resulted in the fatal collision of August 15, 1981. We disagree; consequently, we affirm the trial court.

Summary judgment is provided for by La.C.C.P. Art. 966. The Supreme Court in Thompson v. South Central Bell Telephone Co., 411 So.2d 26 (La.1982) stated:

“Summary judgment under La.C.C.P. Arts. 966-969 is based on Federal Rule 56. Although it is an extremely useful device for putting an end to unnecessary litigation, it must be used with caution. ‘Summary Judgment procedure is not a catchpenny contrivance to take unwary litigants into its toils and deprive them of a trial.’ Whitaker v. Coleman, 115 F.2d 305, 307 (5th Cir.1940). Rather, it is available only when “the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La.C.C.P. Art. 966; Dixie Campers, Inc. v. Vesely Co., 398 So.2d 1087 (La.1981); Chaisson v. Dominque, 372 So.2d 1225 (La.1979). Whenever there remain factual issues in dispute, a court should not grant summary judgment but should set the case for trial.”

We agree with the learned trial judge that summary judgment was proper here. In accord with the decisions, in Wall v. American Employees Insurance Company, 215 So.2d 913 (La.App. 1st Cir.1968) and Highlands Insurance Company v. Louisiana Department of Transportation and Development, 303 So.2d 824 (La. 3rd App.Cir.1975) and after careful review of the record, we recognize the characterization of the roadway as falling under the St. Charles Parish jurisdiction and not under that of the State Highway System.

The Louisiana DOTD is not responsible for every accident which occurs on intrastate highways. The duty of the DOTD is limited only to exercise control over state highways which fall under the Department’s jurisdiction, and to maintain these thruways as reasonably safe roadways for persons exercising ordinary and reasonable prudence.

Although there exist discretionary authority over all highways within this state, the facts of this case do not clearly indicate an abuse of such discretionary power.

To attempt to require that the Louisiana DOTD be liable for all roads and all highways throughout the state simply because they have made improvements to some local roads and railroad crossings would have the effect of voiding all statutes dealing with Local Roads. There would cease to be any Local Road System in the State, and local government would no longer have jurisdiction over any roads. We think this would be somewhat absurd.

For the reasons assigned, the judgment of the trial court granting the defendant, DOTD, motion for summary judgment and dismissing them from this suit, is affirmed. The case is remanded to the trial court for further proceedings.

AFFIRMED AND REMANDED.


source: Caselaw Access Project

author: REDMANN, Chief Judge.

license: Public Domain

text:
    TWO GUYS FROM ITALY, INC. v. O.P.A. SIGNS, INC.
    No. CA-0857.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 12, 1984.
    James Maher, III, New Orleans, for plaintiff.
    R. Collins Vallee, Metairie, for defendant.

      Before REDMANN, C.J., and CIACCIO and WILLIAMS, JJ.
   REDMANN, Chief Judge.

On plaintiff’s appeal we reverse a judgment on jury verdict that dismissed this action on defendant’s contract to furnish and maintain two identical, internally lighted, 5' X 14', one-piece plastic-faced signs atop plaintiff’s restaurant. The signs were to become plaintiff’s on payment of $1 after 60 months of “lease” payments.

Defendant on a maintenance call broke one of the plastic faces into pieces; took over three months to replace it; replaced it with a two-piece plastic face that came apart at the middle; tied it not quite together with a rope; and left it in that condition for five months (during which this suit was filed). Thereafter defendant took another month or two to conform the coloration of the new face to that of the other sign.

The jury was clearly wrong in its finding that defendant did not breach his contract with plaintiff. The contract bound defendant to maintain the sign and instead, when replacing fluorescent light tubes, defendant broke the sign face and then unreasonably delayed its repair. Defendant’s ultimately replacing the broken sign face was only a partial reparation of the damages caused by defendant’s breach. Other damages include absence of the face on the Causeway side of the sign for about three and a half months resulting in severely reduced usability of the electrically-connected West Esplanade side at night. They also include the lesser, temporary problems of slight off-coloration and an obvious rope holding the center of the new, two-part face in place over a period of several months.

Defendant’s liability is not limited by the contractual provision applicable when the sign “fails to operate.” This is not a case of failure to operate.

Nor does the contract clause titled “comprehensive insurance” limit defendant’s liability to “extending the term” of the agreement. That clause defines the “insurance” to cover “the event of damage or destruction” of the sign, expressly excluding damage caused by plaintiff. Plaintiff surely does not require “insurance” to oblige defendant to repair damage caused by defendant A fair reading of that provision therefore understands it to cover only damage or destruction from natural causes, and consequently that clause’s provision for “extending the term of this agreement for such period of time as display may be unavailable for use” cannot be construed as limiting defendant’s liability for damage that its own breach causes.

We hold defendant liable for damages for breach under ordinary contract law. The amount of lost business that plaintiff suffered is not, and perhaps cannot be, established. And, while plaintiff’s petition had sought replacement of the two-piece face with a one-piece face, plaintiff later accepted the two-piece face by having certain colors (of two chefs and pizza) corrected by defendant, so that we need not decide whether the mere existence of a joint or seam would entitle plaintiff to a new, one-piece sign face (notwithstanding that a two-piece face may be “better construction” and less subject to destruction from high winds, as had occurred to the same one-piece face on one earlier occasion).

Defense counsel had shown, by questioning of plaintiff’s president, that it was defendant’s “position that [he] would extend for the lease agreement, for the contract, your maintenance and insurance for that period of time [from April to February] for an equal amount of time.” That is not an unreasonable offer, considering the probable increase in cost of those items over their cost as fixed in the contract five years ago. Conceivably that offer misled the jury into finding that no breach had occurred. Nevertheless, that is not the legal measure of plaintiff’s damages.

We conclude that the absence and later unsightliness of the sign face justify an award notwithstanding the absence of precise proof. Plaintiff contracted for the sign in order to attract business to its restaurant at a total cost of $10,529 (payable over 60 months). More probably than not, the sign would attract business and its absence, and to a much lesser extent its unsightliness, would cause a loss of business and thus a loss of profit, just as plaintiff testified. Such a loss of profit is compensable under C.C. 1934. Our rough-justice estimate is $750.

Plaintiff also argues that, after plaintiff had earlier obtained a default judgment, it was error for the trial judge to grant a new trial on the ground that defendant had sent to plaintiffs counsel an answer that defendant did not file with the court. Conceding plaintiffs point that only filing with the court can prevent a default, we cannot say that the trial judge erred in ordering a new trial. C.C.P.1973 authorizes a new trial “in any case if there is good ground therefor.” Reasonable persons may differ on whether our circumstances constitute “good ground,” but for that reason that question addresses itself to the trial judge’s discretion; see Lynch v. Lynch, 422 So.2d 703 (La.App. 3 Cir.1982). We deem that discretion reasonably exercised under the circumstances.

Plaintiffs complaint of refusal of certain jury charges is moot because we have rejected the jury’s verdict.

Finally, we reject plaintiff’s demand for attorney’s fees. The general rule is that attorney’s fees (and other costs of litigation not expressly provided for by statute) are not recoverable, C.C. 3198. Plaintiff argues that it is entitled to fees under R.S. 22:658, on the theory that plaintiff paid $17 monthly for “insurance” and this action is upon that insurance. Attorney’s fees are provided by R.S. 22:658 against an insurer, in case of nonpayment within 60 days of receipt of satisfactory proof of loss. But we have reasoned that the “comprehensive insurance” clause does not cover damage caused by defendant, but only damage from natural causes, and for that reason we rejected the theory that that clause limited plaintiff's recovery for damage caused by defendant to a simple extension of the term for payment of the contract. For the same reason we reject plaintiff’s theory that this is an action on that clause as on a contract of insurance, whatever the merit of that argument in other respects. R.S. 22:658 does not authorize attorney’s fees to plaintiff in this case.

Reversed; judgment for plaintiff against John U. Barr, Jr. (doing business as O.P.A. Signs) for $750 with interest from judicial demand and all costs.


text:
    Aaron HALL v. LOUISIANA COCA-COLA BOTTLING COMPANY, LTD.
    No. CA-0881.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 12, 1984.
    Writ Denied March 16, 1984.

      Frederick J. Gisevius, Jr., David E. Caruso, Jr., New Orleans, for plaintiff.
    Dominic J. Gianna, Hammett, Leake & Hammett, New Orleans, for defendant.
    Before REDMANN, C.J., and CIACCIO and WILLIAMS, JJ.
   REDMANN, Chief Judge.

Appealing only the amount of a $17,600 jury award for “loss of wages or impairment of earning capacity,” defendant argues that there is no medical evidence to support an award other than for about three weeks of disability because of a nose operation three months after the accident. (Plaintiff did not miss any work immediately following the accident.)

Treating general surgeon Dr. Clanton concluded plaintiff “had sustained a lumbar spinal muscular sprain ... probably of a moderate type of severity” in the accident of October 27, 1980. Muscle spasm and positive straight leg raising test were present as late as January 30, 1981, but no objective evidence was found thereafter. Plaintiff continued to report back pain, however, on March 13, April 24, May 18 and September 22, 1981. At the trial on March 18, 1982, plaintiff counsel asked Dr. Clanton his “medical judgment whether the pain had become chronic or whether or not there was a flare-up from time [to time?]? What is your opinion as to the permanency or as to the chronic nature of his back complaint?” Dr. Clanton replied “It would be hard for me to answer that at this stage, you know, because it’s a possibility it could be a flare-up. It could possibly be anything, you know. Q. ... would it be unusual there would be flare-ups long after active treatment had ended, Doctor? A. It’s possible. Most of these injuries usually resolve themselves within three, four, five months .... If it didn’t [resolve itself] it probably would be a chronic problem.” Dr. Clanton felt plaintiff was sincere in his complaints, and had no reason to think otherwise. “Frequently we see patients with pain without objective evidence.”

Defendant argues the rule of Bize v. Boyer, 408 So.2d 1309, 1311-1312 (La.1982):

“In order to obtain an award for impaired earning capacity (or future loss of wages) ..., a claimant must present medical evidence which at least indicates there could be a residual disability causally related to the accident.... In the present case the medical evidence merely indicated there could be discomfort _” (Emphasis in original.)

Dr. Clanton’s testimony does not indicate “there could be a residual disability.” At best, the testimony is that there could be low back pain from time to time from the “muscular sprain.” We deem that comparable to Bize’s “could be discomfort.”

Nor does plaintiff himself testify that his pain is so constant and intense as to be disabling; to the contrary, he testifies “I figure I’m able to work.” But he does feel that the accident prevents his obtaining employment: “Whenever I fill out an application I put where I had back problem. It could have been a mark against me as far as getting a job.”

Shortly after the accident and “before the nose surgery, November, December [1980], January [1981],” plaintiff testifies, he “was in pain.” When playing drums he couldn’t play more than two hours; he couldn’t take motors (weighing 300-500 pounds) off motorcycles; he was on light duty at work. (He made extra money, he said, by playing drums and repairing motorcycles, but he gave no amounts.)

As of trial time, “I figure I’m able to work. Sometimes I can’t bend down and tie my shoe strings because of my back. Q. Give me an idea when it bothers you and how it bothers you. A. It bothers now. Sometimes I’m in pain so sharp, if I try to bend down or stoop a certain way it’s like a needle sticking you in the back.... Right in the lower back.... [A]nything heavy I can’t lift up on as far as trying to continue picking up on something. In the morning when I wake up I have a problem with my back .... It just stiff, pain, kind of stiff when I wake up.”

The kind of pain of which our plaintiff speaks is modest and sporadic and therefore comparable to the “discomfort” in Bize. We conclude that the medical evidence required by Bize is lacking and that the award in question must be eliminated insofar as it may include any amount for loss of future wages or earning capacity.

During the three months immediately following the accident, when the pain and disability would presumably have been worst (and objective evidence was present), plaintiff continued to work (although “on light duty,” he said). Then plaintiff went to the hospital for three days for a nose operation from which (he said) convalescence required about three weeks. He did not return to work thereafter, however, because his employment had been terminated. But he deemed himself able to work, and in fact applied for “a bunch of jobs” but was not hired (perhaps because he notified prospective employers of his “back problem”). We are therefore unable, especially in view of the absence of medical evidence, to affirm any amount possibly included in the award on account of lost wages in the year between plaintiffs convalescence and trial.

We conclude that for lost earnings during hospitalization and convalescence the jury could not award any amount beyond four weeks wages ($900) plus some nominal amount for loss of some outside income, or say a total of $1,000.

We add that we have considered the principle of Harris v. D’Antoni, 355 So.2d 1049 (La.App. 4 Cir.1978), followed in Fragale v. Sears, Roebuck & Co., 365 So.2d 872 (La.App. 4 Cir.1978). (See also Wall v. New Orleans Pub. Serv., 389 So.2d 80 (La.App. 4 Cir.1980), writ refused.) Harris and Fragale affirmed total awards that included awards for loss of future earnings that the court deemed clearly excessive, when the total awards also included general damage awards that the court deemed clearly inadequate. In those cases, rather than reduce the excessive lost earnings award and increase the inadequate general damages award and thereby reach a new total award, the court accepted the jury’s total as reasonably approximating the total the court would itself award and therefore affirmed the jury’s total. In the present case, however, we cannot say that the $10,-000 general damages award was clearly inadequate, and we therefore cannot affirm the jury’s total award of $30,000 on a theory that excessiveness in the lost earnings quantum and inadequacy in the general damages quantum more or less compensate for each other.

The judgment appealed from is reversed in part and therefore amended in its principal amount to $13,400 and otherwise affirmed.


text:
    STATE of Louisiana v. Theodore J. JOHNSON.
    No. KA-0993.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 12, 1984.
    Harry F. Connick, Dist. Atty., Beryl McSmith, Asst. Dist. Atty., New Orleans, for State.
    Joseph Meyer, Jr., New Orleans, for defendant.
    Before REDMANN, C.J., and CIACCIO and WILLIAMS, JJ.
   REDMANN, Chief Judge.

This appeal argues only excessiveness of a sentence of five years at hard labor for negligent homicide. The killing, of a two-year-old child, occurred when defendant was driving a dump truck at about 46 mph in a 20 mph limit school zone after drinking (according to a fellow worker who helped do the drinking) two or three bottles of vodka (of undisclosed size).

• Defendant had been convicted in traffic court of driving intoxicated on two earlier occasions, and had once been made to participate in an alcohol abuse program. At the sentencing hearing defendant’s testimony showed that he, after two DWI convictions (he admitted only one) and one negligent homicide conviction, still has not recognized the threat his drinking poses: “Q. On that date when this accident happened, when you killed this child, were you drinking that day? A. A little, yes. Q. A little did you say? Did you have a drinking problem? A. I would not call it a problem, but I drink. Q. You drank too much too often? A. No sir, I don’t think so_ Q. How much had you had to drink that day? A. Two beers and a shot of vodka. Q. A drink of one ounce? A. I don’t have no measuring cup with-me. Q. Two beers and a vodka, that is all you had all day? A. Yes.” The trial judge noted that defendant’s blood alcohol level was .15 when taken at a hospital about two hours after the accident.

On the other hand, it may be said that defendant has had no other convictions (see La.C.Cr.P. 894.1(7)) and was 59 or 63 years old as of trial in November 1982 (he said 59, but also said he was born December 29, 1918, as do the various documents in the record, which would make him 63, almost 64, at trial time). It may be conceded that imprisonment entails greater hardship for one his age than for a younger person (see art. 894.1(11)).

Defendant argues that five years is too much, citing many cases of negligent homicide with lesser sentences (even probation, State v. Parker, 436 So.2d 495 (La.1983)), even though some of the crimes seem more aggravated (e.g., State v. Andrews, 337 So.2d 1175 (La.1976)). We respond, noting art. 894.1(8), (9) and (10), that the five-year sentence is not excessive considering defendant’s attitude that makes it very likely that defendant will drive drunk again and thus threatens other negligent injury or homicide unless restrained.

We cannot fault the trial judge for seeing his duty as to protect society as long as possible from defendant, who apparently cannot learn that his drinking and driving is a menace.

We might therefore affirm the sentence of five years, but we find no necessity for the imposition of hard labor (and R.S. 14:32 does not require it). The crime was not intentional and was not the worst of its category, and therefore does not deserve the worst punishment, State v. Telsee, 425 So. 2d 1251 (La.1983).

Sentence set aside; remanded for re-sentencing without hard labor.


text:
    STATE of Louisiana v. Melvin HENDERSON.
    No. KA-1157.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 12, 1984.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Joanne C. Marier, Asst. Dist. Atty., New Orleans, for plaintiff.
    Johnny E. Wellons, Baton Rouge, for defendant.
    Before REDMANN, C.J., and GULOTTA and AUGUSTINE, JJ.
   REDMANN, Chief Judge.

Appealing from jury conviction of introducing contraband (a marijuana cigarette) into a prison, La.R.S. 14:402, and from denial of a motion for new trial, defendant makes five arguments.

The first two charge incompetence of counsel, for failure (1) to object to hearsay and (2) to call as a witness the guard who was supposed to have searched defendant before entering the prison. We find no incompetence. Presumably the trial attorney knew that the basic factual testimony was to be that one deputy saw defendant pass a handrolled cigarette through the visitor’s screen in the day room to his incarcerated son; that that deputy left briefly to notify his superior; that thereafter a handrolled cigarette was found in the general area where defendant was visiting his son; and that examination proved it marijuana.

The hearsay was that a marijuana-sniffing dog’s handler told the witness that the marijuana cigarette had been found in the day room. It was not incompetent to allow this hearsay, no more than it would have been to stipulate that the cigarette was there found. Trial counsel did stipulate that the qualified examiner of the cigarette would testify that it was marijuana. That was not incompetence. These are matters easy for the state to prove and not really in dispute; defendant does not suggest he had any contradictory evidence in any case. An accused has the right to insist that the state prove every element of its case, but defendant does not aver that he so instructed his trial counsel and it is certainly not incompetence for a lawyer to concede undisputable elements so that the jury’s attention is concentrated on the disputed elements of the crime charged. Moreover, objection to hearsay would presumably (despite the later hearsay that the dog-handler was ill) have produced the dog-handler’s direct testimony—presumably more convincing than the hearsay.

Nor is not calling the guard who supposedly searched defendant shown to be incompetence. If, for example, defendant showed on the motion for new trial that the guard’s testimony would have been that he or she so thoroughly searched defendant that defendant could not have had a marijuana cigarette on his person, that testimony might well have been preferable to present to the jury rather than the general testimony of routine searching and patting down. But if all the guard could testify is that he or she routinely searched, not so thoroughly as to insure that defendant could not have had a marijuana cigarette, then that testimony would add nothing to the evidence already before the jury.

Thus defendant does not show that trial counsel committed an essential error of judgment in either regard, much less that any such error prejudiced him, as required by State v. Berry, 430 So.2d 1005 (La.1982), before a conviction can be set aside for lack of effective counsel.

Defendant third argues that the state did not prove beyond a reasonable doubt all elements of the offense. Defendant’s brief charges that the deputy testified that defendant “and his son did not move from the front of the cell; therefore, they could not have concealed the contraband in the window sill.” That is a mistaken view, for the deputy testified that on seeing defendant pass the cigarette through the screen he left to call his superiors and was gone a total of two and a half minutes. During the time he was gone, of course, the deputy could not see defendant and his son. Given the positive eyewitness testimony that the defendant passed a hand-rolled cigarette through the screen to his son, the jury could reasonably have inferred, as the most reasonable explanation of the cigarette’s presence on the window sill, that defendant’s son placed it there during that time.

Defendant’s fourth argument is that new trial should have been granted because at the hearing on the motion for new trial an apparently respectable citizen, employed 19 years at a university book store, testified that his nephew (also a sheriff’s deputy) told him that he overheard the eyewitness deputy say that he really saw nothing pass from the defendant to the incarcerated son. But that witness’s nephew testified that he never told his uncle that story, although he knew that his uncle misunderstood him. The problem with the uncle’s testimony is what effect it could conceivably have on a jury if presentable. If the defense had presented at the trial the nephew’s testimony for the purpose of impeaching the eyewitness but the nephew did not impeach the eyewitness, could the defense then present the uncle’s testimony (a) to impeach the nephew with his prior inconsistent statement? (b) to prove the truth of the nephew’s prior inconsistent statement? State v. Allien, 366 So.2d 1308 (La.1978), held prior inconsistent statements inadmissible as evidence of the truth of their content, in the context of an attempt to prove defendant’s guilt by proving out-of-court statements by witnesses who in court concede they made the statement but deny their truth. And it is a far leap to suppose that a jury could believe the uncle, and therefore disbelieve the nephew’s sworn testimony (that he did not make the unsworn statement), yet believe the content of the nephew’s unsworn statement and therefore disbelieve the eyewitness. One of the requisites for a new trial based on newly discovered evidence is that “it must be of such a nature that it would probably produce an acquittal in the event of retrial,” State v. Talbot, 408 So.2d 861, 884 (La.1983). We cannot say that of the evidence on which defendant based his motion for new trial.

Defendant’s fifth argument is that the ends of justice would be served by granting new trial, La.C.Cr.P. 851(5), because of the new evidence just discussed. That article allows the trial judge to grant new trial on that basis “although the defendant may not be entitled to a new trial as a matter of strict legal right.” But appellate courts may not review refusal of new trial “except for error of law,” C.Cr.P. 858, and we find none.

Affirmed.


author: SCHOTT, Judge.

text:
    STATE of Louisiana v. Prentiss TATE.
    No. KA 1147.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 12, 1984.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., New Orleans, Harry F. Connick, Dist. Atty., Susan Scott Hunt, Asst. Dist. Atty., New Orleans, for State of La.
    William R. Ary, New Orleans, for defendant-appellant.
    Before SCHOTT, BARRY and WARD, JJ.
   SCHOTT, Judge.

Defendant was charged with possession of pentazocine, hydromorphone and oxyco-done, with intent to distribute, in violation of LSA-R.S. 40:967. He originally pled not guilty and filed a motion to suppress the evidence which was denied. He withdrew his plea of not guilty and pled guilty with a reservation of his right to appeal from the denial of his motion to suppress. He was sentenced to four and one-half years at hard labor on each count to run concurrently. The issue is whether the affidavits filed by the police with magistrates were sufficient to justify the issuance of three search warrants.

At issue are two affidavits which led to separate warrants, the first two for searches of Apartments 5 and 10 (sometimes designated as an unnumbered second floor rear apartment) 2105 Thalia Street, New Orleans, and the second for a search of Apartment 6 at the same address. Although defendant attacks all the warrants as violative of the constitutional right against illegal search the main thrust of his argument is in regard to the warrant for the search of Apartment 6.

The affidavit filed with the application for a search warrant for Apartments 5 and 10 was made by Narcotics Officers Weth-ern and Harris and contained the following pertinent facts: They received information on April 20, 1982, from a confidential informant who had provided information in the past which led to arrests of individuals in New Orleans that defendant was conducting a drug business at 2105 Thalia Street, employing two individuals, “Ben” who sells wholesale quantities out of Apartment 5 and “Country Boy” who sells retail quantities out of Apartment 10. Three days previously the informant had gone to this area to purchase some drugs and he met defendant who directed him to Apartment 5. There the informant found Ben who stated that he had only wholesale quantities which the informant observed in the apartment. However, Ben took him to Apartment 10 where they found “Country Boy” from whom the informant purchased one dilau-did on April 21. The officers established a surveillance of the premises, beginning with Apartment 5. Within forty-five minutes they observed three suspicious transactions or exchanges take place with the occupant of Apartment 5. At 3:10 PM the officers moved to a different vantage point whence they could view Apartment 10 and the intersection of Thalia and Saratoga Streets. Over the next hour they saw three suspicious exchanges taking place at the apartment and in two instances saw defendant participating.

Search warrants were issued by Magistrate Judge Hansen on April 23 and a search of the apartments was conducted at 4:30 PM. Nothing was found in Apartment 5, but drugs, a weapon, ammunition, and $975 in currency were found in Apartment 10. Defendant was arrested at 1329 Sara-toga, a residence next door to the apartment building.

At 7:25 PM on April 23, the officers went before Magistrate Kiefer to obtain a search warrant for Apartment 6. Their affidavit contained the following: Earlier that day they had obtained from Judge Hansen a search warrant for Apartment 10 and at 4:30 PM executed the warrant at which time they arrested defendant and another charging them with possession of dilaudid, talwin and marijuana, with intent to distribute in violation of R.S. 40:967. While they . were executing the warrant Sergeant John Evans of the Police came to the scene to assist them. Evans was familiar with the subjects and told the officers that within the past three days he had spoken to a confidential informant whose information in the past had led to the arrest and conviction of criminals distributing narcotics in the city. This informant stated that defendant was retailing and wholesaling drugs from Apartment 10 and also mentioned that defendant maintained a second apartment in the building, Apartment 6, to store the drugs. Evans further stated that he had kept Apartment 6 under surveillance between 1:30 and 2:15 PM on April 22, and had seen defendant enter the apartment (after looking about as if to determine whether he was under observation) and exit with a small brown paper bag. Later Evans saw defendant re-enter Apartment 6 (again after peering about) holding an unknown amount of currency and exit in possession of a plastic bag (again peering about). The officers then contacted the apartment owner and learned that defendant was lessee of Apartments 10 and 6.

A search warrant was issued by Magistrate Kiefer and a search of Apartment 6 was conducted, yielding a quantity of narcotics and $674 in currency.

Defendant argues in general that the warrants do not meet the requirements of Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); and State v. Paciera, 290 So.2d 681 (La.1974). He argues specifically that the search warrant for Apartment 6 was defective because the affidavit supporting it and filed with Magistrate Kiefer omitted certain facts which were made known to Judge Hansen: that Apartment 5 had been searched and nothing found, that “Ben” had never surfaced, and that defendant was not arrested at 2105 Thalia but at his home on Saratoga Street around the corner. Furthermore, Sgt. Evans’ informant did not say he had ever been in Apartment 6 or made any purchase there. His conclusions were based on rumors.

The “two-pronged test” of Aguilar and Spinelli has been abandoned and replaced by the totality of the circumstances analysis in order to determine probable cause. Illinois v. Gates, — U.S. -, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983):

“.... The task of the issuing magistrate is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him, including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a ‘substantial basis for .... concluding]’ that probable cause existed.” 103 S.Ct. at 2332.

Both affidavits meet this test. The veracity of the informants was supported by the knowledge that they had supplied reliable information in the past. In both affidavits the information supplied by the informants was corroborated by the officers’ observations of activities and behavior on the part of defendant which provided a fair probability that evidence of crimes would be found in all three apartments. As to the affidavit regarding Apartment 6 any deficiency resulting from the informant’s statement was supplied by the officers’ investigation. They saw defendant engaged in suspicious activity, they learned that he was the lessee of both Apartments 10 and 6, and they had already seized large quantities of drugs from Apartment 10 when they applied for the warrant in connection with Apartment 6. The totality of the circumstances set forth in the affidavit was sufficient to establish probable cause in the mind of Magistrate Kiefer as he made a practical, common sense decision.

As to the omitted facts, we are satisfied that the omission was not intentional or calculated to mislead or conceal information from the magistrate. When the affidavit is considered as though the omitted facts were included we conclude that there would have been probable cause for the issuance of the warrant in the light of the added facts. State v. Lehnen, 403 So.2d 683 (La.1981).

Although we have concluded that defendant’s assignment of error is without merit, in our review of this record for errors patent we have determined that the sentence imposed on the defendant was too lenient under the statutory limitations. The minimum sentence provided by R.S. 40:967 B(l) for possession of a Schedule II narcotic drug with intent to distribute is five years. Thus, defendant’s sentence to 4V2 years each for the hydromorphone and the oxycodone was less than the minimum. Although the imposition of a sentence which is illegal because it is more lenient than the legislature prescribed for the crime would seem to require a remand for re-sentencing, under State v. Napoli, 437 So.2d 868 (1983), we have no alternative but to affirm the sentence.

Accordingly, defendant’s conviction and sentence are affirmed.

AFFIRMED.


author: GARRISON, Judge. LOBRANO, Judge,

text:
    Philip DRISCOLL v. CITY OF NEW ORLEANS.
    No. CA 0688.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 12, 1984.

      Sherman F. Raphael, J.D., New Orleans, for plaintiff-appellee.
    Gilbert R. Buras, Jr., Deputy City Atty., New Orleans, for defendant-appellant.
    Before GARRISON, AUGUSTINE and LOBRANO, JJ.
   GARRISON, Judge.

This is an appeal from a judgment of the district court in favor of the plaintiff, Phillip Driscoll, awarding damages in the amount of $7,249.00 for injuries sustained by him on September 21, 1977 due to a trip and fall on a city sidewalk. From that judgment, which we affirm, the defendant City of New Orleans appeals.

On appeal, the defendant raises a social utility argument by certain material attached to the back of its brief in appendix form. The material so presented, however, is not contained in the record below and is not properly before this court. Defendant argues that it attempted to make a social utility argument below and that the trial court erred in failing to admit the evidence. Our independent review of the record, however, indicates that appellant failed to move to proffer the evidence.

The social utility argument aside, the instant case is a fairly simple one. On September 21, 1977 Phillip J. Driscoll, an elderly self-employed hearing aid specialist tripped and fell on the sidewalk fronting 200 North Robertson. As a result of the fall, he suffered a fracture to the left elbow resulting in permanent impairment and causing the onset of degenerative arthritis.

Plaintiff tripped on an uneven sidewalk slab which had been in that condition since 1967 or for 10 years prior to the accident at issue. The trial judge provided four pages of written reasons for judgment, ultimately concluding that plaintiff had made out his case under both C.C. Art. 2317 strict liability and C.C. Art. 2315 negligence. He further noted “the City presented virtually no evidence of its own.” Appellant does not dispute quantum, only liability.

The standard of review by this court is whether the trial judge was manifestly erroneous in his factual determinations. In the instant appeal, it cannot be said that any manifest error exists.

For the reasons discussed, the judgment of the district court is affirmed.

AFFIRMED.

LOBRANO, J., concurs.

LOBRANO, Judge,

concurring.

I concur in the affirmance of the trial court’s decision. Appellant, City of New Orleans, argues that plaintiff failed to prove the severity of the defect, thus necessitating a reversal. Further, the City claims it was error for the trial court to refuse the introduction of testimony concerning the severity of this defect vis-a-vis other possible defects. I disagree with both these contentions.

First, the trial court made a factual finding that the defect presented an unreasonable risk of harm, and that finding is sufficient to substantiate plaintiff’s judgment. Second, it is not necessary to compare defects throughout the city to make a determination of the severity of the particular defect involved in the instant litigation. Appellant would have the court determine severity of a defect on a relative basis. This would be incorrect.


author: GARRISON, Judge.

text:
    P.E. ODENDAHL COMPANY v. SCARIANO BROTHERS, INC.
    No. CA 0919.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 12, 1984.
    Writ Denied March 16, 1984.
    Stephen B. Murray, Murray, Murray, Ellis, Braden & Landry, New Orleans, for plaintiff-appellant.
    William E. Wright, Jr., James P. Magee, Appeal Counsel, Baldwin & Haspel, New Orleans, for defendant-appellee.
    Before GARRISON, KLEES and CIAC-CIO, JJ.
   GARRISON, Judge.

This is an appeal from a March 9, 1983 judgment of the district court, granted in favor of defendant, Scariano Bros., and dismissing the action of plaintiff, P.E. Oden-dahl Co., which action was a suit on open account for an outstanding balance of $8,093.52 for services rendered in the nature of repairs to a Hale Model K58 Forklift owned by defendant. The judgment of March 9 further dismisses the reconven-tional demand of Scariano Bros, against P.E. Odendahl Company for return of $8,000.00 already paid to plaintiff on that account and other damages arising out of the same repair job. From the judgment of March 9, which we affirm, Odendahl appeals. Scariano also answered the appeal, seeking reversal of the trial court’s denial of its reconventional demand.

In October of 1979, plaintiff and defendant entered into a business relationship. In January of 1981 Odendahl received the forklift and repair request from Scariano. The initial estimate of repairs was $3,000-3,500. The trial court found that plaintiff and defendant agreed that the forklift would be tendered in “perfect working order.” The costs of repair gradually accelerated to $16,093.52 by the time the job was completed. Scariano approved those increases throughout the five months during which Odendahl worked on the forklift.

On May 20, 1981, Scariano received the “repaired” forklift. On May 21st, the forklift’s sideshifter was leaking. On May 28th the fact that the forklift would not go forward and was exuding a burning smell gave rise to the discovery that a loose joint on the forward connector coil needed repair and that there was a bad connection on the other side of the forward coil. On June 3rd, two small wheels fell off. On June 9th, the reverse gear would not work. On June 12-13, the forklift had no brakes or sideshift. On June 23rd, the handle to raise and lower the forks came loose. On June 24th, Scariano paid Odendahl $8,000 on the bill for forklift repairs; Odendahl had refused to make any more “warranty” repairs unless Scariano paid something on the bill. On July 14th, the accelerator stuck revealing that there was a part missing on the seat brake and on July 16th there was an electrical fire on the forklift. On July 17th, Scariano wrote to Odendahl describing the problems with the forklift. Odendahl stated that he would do no further work on the forklift until the remaining balance of $8,093.52 was paid in full. Scariano refused to pay the balance. Scari-ano then hired W & W Clarklift on July 16, 1981 to repair the forklift, incurring additional expenses. The forklift was finally sold to Briggs-Weaver for $350.00. Oden-dahl sued for the outstanding balance of $8,093.52; Scariano reconvened seeking damages of $11,890.12 which amount included a refund of $8,000.00 already paid, plus the costs of subsequent repair and rental of a replacement forklift.

Upon our independent review of the record in this matter, it is apparent that neither side proved its case. Odendahl’s bill is somewhat undecipherable as it contains notations such as “Labor — FJF 12/9 from WO to 1200 4 hrs.” without any description of what work was done. In the section dealing with “Parts” the bill contains items such as “1 Lot Bolts, Nuts, Washers 29.70” without a date or other identifying information. The bill does not reveal what work was actually done and which parts were repaired without replacement. There is an itemized list of replacement parts, however.

Defendant Scariano called into question the nature of the work performed, alleging that it was defective and unsatisfactory. To that end, Scariano produced the testimony of Mr. Hart showing that among other things, one piece was installed backwards. In refutation to this and all other allegations, plaintiff argued, “Yes, but you didn’t prove that we worked or replaced that particular part.” Defendant did not have access to the identity of the particular workman who worked on each phase of repair. Likewise, plaintiff, once the defectiveness was placed at issue, did not produce the workmen who had done the work in order to testify as to the quality of the work performed or that the work was in fact performed. This statement is not an attempt to reallocate the burden of proof, but is only illustrative of the fact that defendant went as far as he could in producing available testimony and that access to the critical testimony needed was solely within the control of plaintiff.

There is one argument on the point that the corrosive nature of defendant’s premises could cause a total breakdown of the forklift within a period of two months. This contention, however, fails to deal with the fact that the first breakdown occurred the day after the forklift was delivered.

Likewise, there is some argument that the relationship between plaintiff and defendant was an open account. It was not. Odendahl’s bill clearly states “Terms — Net 30 days”. There is no running of interest provided for, no “minimum balance due” and most importantly, no application or other contract creating a credit relationship between the parties. While the parties have had a long business relationship, it is apparent from defendant’s books that each transaction stood alone.

It is apparent that neither side carried its burden of proof. Accordingly, the trial judge properly dismissed both actions, thus the judgment of the district court is affirmed.

AFFIRMED.


author: BARRY, Judge.

text:
    Hattie DIXON v. DEPARTMENT OF FINANCE.
    No. CA-0920.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 12, 1984.
    Jimmy Grimes, Sr., New Orleans, for plaintiff-appellant.
    Bernette J. Johnson, Deputy City Atty., Douglas P. Wilson, Chief Deputy City Atty., Salvador Anzelmo, City Atty., New Orleans, for defendant-appellee.
    Before SCHOTT, BARRY and WARD, JJ.
   BARRY, Judge.

Hattie Dixon appeals a Civil Service Commission ruling which affirmed her dismissal as an account clerk with the New Orleans Dept, of Finance. We have no difficulty in concluding that Ms. Dixon’s behavior impaired the efficient and orderly operation of the public office where she was employed.

On April 10, 1981 Bobby Major, Comptroller of the Accounting Department, sent a letter to Erroll Williams, Director of Finance, recommending Ms. Dixon be terminated because of blatant insubordination. The letter reported Ms. Dixon had been instructed not to answer vendor inquiries, but despite numerous conferences, Ms. Dixon persisted in answering the inquiries and giving misinformation to taxpayers. On April 22, 1981, subsequent to a meeting with Ms. Dixon, Mr. Williams decided not to fire Ms. Dixon, but to transfer her to the Bureau of Treasury under John Hauler. An inter-office memo from Mr. Williams to Ms. Dixon stated:

As we discussed, I am in receipt of a substantial package of information in which there was an allegation made relative to your disregarding instructions by the supervisors and bureau chief with respect to the handling of vendor inquiries via telephone. After careful review of the facts, I am in agreement that your action was one of blatant insubordination.
However, after careful consideration of these facts, I think, and hope, that a change in environment would foster a change in attitude. Therefore, I am transferring you to the Bureau of Treasury as a second chance and if such action does recur in the new position with the Bureau of Treasury, then I will have no other alternative but to take stronger disciplinary action with respect to your employment with the City of New Orleans.

In September, 1981 Ms. Dixon received an “unsatisfactory” rating for December, 1980 to June, 1981. The evaluation was signed by Virginia Drake, her supervisor in Accounting, and Mr. Hauler. Attached to the rating was a memo to Mr. Williams which asserted:

[W]e both found that Hattie rejects direct instructions concerning her job and refuses to accept either constructive criticism or outright correction of whatever she does wrong. She simply refused to accept authority.

Ms. Dixon responded by filing a grievance form denying the accusations. On May 11, 1982, by certified mail, she was suspended by Mr. Williams for five days because of tardiness (33 times over an eight month period) and insubordination (insolence, disobedience and failure to follow direct instructions from her supervisor). The letter reiterated specific occurrences and reminded her she had been given a second chance by the transfer and had previously received an “unsatisfactory” service rating. The letter concluded:

I would encourage you, Ms. Dixon, to reflect on your current status and determine whether you will reverse this trend and become a valuable member of this department. We cannot and will no longer tolerate the type of attitude you have displayed in the Department of Finance. Any further actions of this nature will result in your immediate termination.

Ms. Dixon appealed this action. On July 8, 1982 she received a second “unsatisfactory” service rating by Mr. Hauler. This evaluation covered June, 1981 to July, 1982 and had the following comment:

“Hattie needs to learn to take directions. She needs to listen when people talk to her. She does not want to take instructions.”

On September 9, 1982 Mr. Williams sent Ms. Dixon a certified letter of termination which specified:

1. Your service rating for the period July 1, 1981 thru June 30, 1982 is “Unsatisfactory”. During this same period last year, your rating was “Unsatisfactory” for similar reasons. Instead of terminating you I thought that a change in environment would make a difference; I see that it did not.
2. You were suspended on May 12,1982 for insubordination and tardiness. You were also encouraged, at that time, to think about your status and determine whether you would reverse this trend and become a valuable member of this department. It is evident that you chose to remain as you were.

At the hearing Mr. Williams related an occasion when he waived interest on a tax bill and Ms. Dixon added the interest back. Mrs. Drake and Mr. Hauler testified that although Ms. Dixon was told many times to cease taking vendor inquiries, she would acknowledge the instruction but then continue to answer taxpayer’s questions. Mr. Hauler reported that on several occasions while he attempted to instruct Ms. Dixon, she turned and walked away. Two coworkers, Edna Tapp (employed 6 years) and Helen McCoy (employed 15 years), related the same attitude. Both agreed she did not follow instructions, take corrections, or comply with office procedures because she wanted to do things her way. Mr. Hauler testified that he personally reviewed Ms. Dixon’s sign-in sheets and verified the numerous tardy days.

Ms. Dixon denied all of the allegations. However, it is clear from her testimony that she disregarded the 'explicit instructions of her supervisors. She even admitted being told by Paula Howard (her supervisor in Accounting prior to Virginia Drake) to stop handling vendor inquiries. She also said when alone she continued to respond to taxpayer’s questions. She stated she did not recall the “interest” incident reported by Mr. Williams. She also admitted disregarding Ms. Drake’s instructions to stop taking vendor inquiries. Regarding advice from co-workers she candidly stated: “I did not accept their advice on things that I already knew.” As to tardiness, she simply admitted being late on occasions, but did not realize it was so often.

Ms. Dixon called four co-workers who testified she was helpful and eager to learn. Mary Lambert worked for 4-5 months; Alfred Cortes was in Accounting for a year and a half; Patrice Sanders worked in Treasury for one month; and Thelma Jaeger was in a different city department and still working. Two taxpayers testified she was helpful and friendly and it was stipulated four additional taxpayers would testify similarly.

The efficiency of public service in the Finance Dept, is directly related to accurate responses to taxpayer inquiries. Ms. Dixon was not in a position to substitute her judgment for that of her supervisors. She refused to yield to authority. We find the evidence fully supports the disciplinary actions which were reasonable, not arbitrary; necessary, not capricious; and in the best interests of the appointing authority.

Ms. Dixon contends the Hearing Referee made prejudicial comments which affected the Commission. We disagree. The cases cited by appellant are all jury cases and inapplicable here. Under La. Constitution Art. 10 Section 12 the Commission is permitted to appoint a Referee, without decisional powers, to take testimony. The Commission’s opinion states: “A copy of the transcript and all documentary evidence have been reviewed by the three (3) undersigned members of the Civil Service Commission.” Even though the Referee did comment on the evidence, his conduct had no prejudicial effect on the Commission. See Goudeau v. Department of Public Safety, Division of State Police, 349 So.2d 887 (La.App. 1st Cir.) writ denied 351 So.2d 165 (1977); Boudreaux v. Chief Administrative Office, 436 So.2d 663 (La.App. 4th Cir.1983).

Ms. Dixon also complains that the document showing 33 tardy days is inadmissible hearsay because the original time sheets were not in evidence. Even without this evidence the City had sufficient cause to dismiss Ms. Dixon. However, Mr. Hauler testified he personally checked the time sheets and verified that the dates and times were accurate. This testimony was admissible and corroborated the correctness of the charge.

Ms. Dixon presents a litany of other claims:

The instruction not to communicate with vendors amounted to a demotion without due process. This contention doesn’t merit a response.
The C.A.O. neglected his duty by failing to complete the grievance procedure. The grievance form was filed into evidence and clearly shows it was processed through all appropriate steps.
She was prejudiced by delays in hearing this matter, but there is no such proof.

Finally, Ms. Dixon claims she was denied due process because the Commission did not review her service ratings. She did not timely challenge the ratings because she had no notice of her right to appeal the ratings. Neither the Constitution nor the Civil Service rules provide for notice to the employee of the right to appeal a service rating. Perhaps Ms. Dixon is confused by the requirement that the appointing authority give notice to the employee of a right to appeal a disciplinary action. Rule IX Section 1.2 of the Civil Service Commission Rules. Picton v. Sewerage and Water Board, 423 So.2d 1284 (La.App. 4th Cir.1982) writ denied 430 So.2d 96 (1983). No notice was necessary as to a service rating and Ms. Dixon’s right to challenge the “unsatisfactory” service ratings had prescribed. Civil Service Rule XI, Section 1.4. See also Chadwick v. Department of Highways of the State, 238 La. 661, 116 So.2d 286 (1959).

Ms. Dixon was provided every conceivable opportunity to keep her job if she worked by the rules; unfortunately, she refused. We are satisfied the appointing authority demonstrated by a preponderance of the evidence that the conduct of Ms. Dixon impaired the efficient and orderly operation of the City’s Finance Dept.

The Civil Service Commission is affirmed.

AFFIRMED.


author: KLEES, Judge.

text:
    Joseph CORONA, Jr. v. STATE FARM INSURANCE COMPANY.
    No. CA-0694.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 12, 1984.
    Writ Granted March 16, 1984.
    William H. Penniger, Gregory J. Avery, Orrill & Avery, New Orleans, for plaintiff-appellant Joseph Corona.
    C. Gordon Johnson, Jr., Daniel R. Hynes, Porteous, Hainkel, Johnson & Sarpy, New Orleans, for defendant-appellee State Farm Mut. Auto. Ins. Co.
    Before KLEES, BARRY and WILLIAMS, JJ.
   KLEES, Judge.

Plaintiff-appellant Joseph Corona, Jr., filed this action against State Farm Mutual Insurance, defendant-appellee, his personal insurance carrier, to recover damages under the uninsured/underinsured portion of his policy.

State Farm filed an exception of no cause or right of action and alternatively a motion for summary judgment. Their motion was based upon the fact that Corona had previously released the alleged tortfeasor (Diane Byrd and her insurer Travelers Insurance Co.) without expressly reserving his rights to proceed against State Farm. They further contended that under the recent Louisiana Supreme Court holding in Hoefly v. Government Employees Insurance Company, 418 So.2d 575 (La.1982), they were liable in solido with the alleged tortfeasors, thus under LA.C.C. art. 2203, the release of the alleged tortfeasor without reservation of rights against State Farm served to discharge State Farm from any obligation.

The trial court granted the motion for summary judgment, dismissing Corona’s suit. From this ruling he appeals. The issue presented in this appeal is whether or not the trial court erred in finding that the plaintiffs release of the tortfeasor without any reservation of rights also released the defendant insurer. Because we find no error in the trial court’s decision, we affirm.

The issues presented in this case are exactly those presented before a panel of our Brothers on the Fifth Circuit in Decedue v. Government Employees Insurance Company, 441 So.2d 72 (La.App. 5th Cir.1983). In affirming the dismissal of the uninsured/underinsured. carriers, Judge Kliebert, speaking for the Court said:

“For the reasons stated by the minority opinions in the Hoefly case, supra, in our view the tortfeasor and GEICO are not solidary obligors. As an intermediate appellant court, however, we are duty bound to apply the holding of the majority opinion in Hoefly, supra. Once the concept of a solidary obligation between the tortfeasor and the underinsured or uninsured insurance carrier is accepted, our inquiry is limited to applying the provisions of La.C.C. Article 2203 to the facts presented here.

La.C.C. Article 2203 provides:

‘The remission or conventional discharge in favor of one of the codebtors in solido, discharges all the others, unless the creditor has expressly reserved his right against the latter.
In the latter case, he can not claim the debt without making a deduction of the part of him to whom he has made the remission.’ (Emphasis supplied)
The plaintiffs settled their claim with the tortfeasor and his insurer (who had $100,000 of coverage) for $95,000.00 and executed a release of the tortfeasor, his insurer and ‘all other persons, firms and corporations from all claims and demands ... ’ The existence and execution of the release is undisputed.
Clearly, under La.C.C. Article 2203, the failure of the plaintiffs to reserve their rights against GEICO resulted in its discharge.”

See also: Wells, et ux v. Hartford Accident and Indemnity Co., et al., 437 So.2d 295 (La.App. 3rd Cir.1983); Compare: Dobard v. State Farm, 437 So.2d 366 (La.App. 4th Cir.1983).

We also are pursuaded by the views presented in the dissenting opinions in Hoefly, which would find no solidary obligation between the tortfeasor and State Farm in this circumstance. Nonetheless we must follow the majority. We have noted that the majority opinion indicates that not all effects of solidarity were intended to be addressed:

“Allstate argues that the conclusion we have reached will cause all effects of solidarity to be applied in uninsured motorist cases. Care should be taken by civilian attorneys and jurists to be on guard against applying one segment of the code in isolation from others. Neither the Civil Code nor the revised statutes were intended to be applied in this manner. A full delineation of the relationship between the tortfeasor and the uninsured motorist carrier after payment of the debt owed by them solidarity is beyond the scope of this case. However, it is clear that the Civil Code recognizes that debtors, although solidar-ily bound for the creditor’s benefit, may have differing relationships among themselves. The conclusion that debtors are solidarity bound does not alone determine the rights and obligations of the debtors in relation to each other. La. C.C. arts. 2103, 2104, 2106; 2 M Planio, supra, nos. 767-771; Wooten v. Wimberly [272 So.2d 303 (La.1972)] supra, (Tate, J., concurring). The Work of the Louisiana Appellate Courts for the 1972-1973 Term — Obligations, 34 La.L.Rev. 231, 233 (1974).” Hoefly, supra, at p. 580 (emphasis supplied).

Nonetheless, the present result is inescapable.

Accordingly, we affirm the judgment of the trial court. Each party to bear his own costs of the appeal.

AFFIRMED.

WILLIAMS, J., concurs.


text:
    Lynda Schroeder, wife of John W. LEITZ, III v. John W. LEITZ, III (her husband).
    No. CA-1005.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 12, 1984.
    Philip R. Riegel, Jr., New Orleans, for plaintiff-appellant.
    Stephen J. Simone, Metairie, for defendant-appellee.
    Before KLEES, GARRISON and CIAC-CIO, JJ.
   KLEES, Judge.

This is a suit for separation from bed and board filed by the plaintiff, Lynda Schroeder Leitz, alleging the cruel treatment by the defendant, John W. Leitz, III, as grounds for her action. The defendant answered and reconvened seeking a separation based on his wife’s cruel treatment of him and her abandonment of him. The trial court rendered judgment in favor of the plaintiff, but declared the parties to be mutually at fault in causing the separation. The trial judge also reduced an earlier award of child support and alimony penden-te lite from $500 and $400 respectively to $400 and $200. It is from this judgment that the plaintiff appeals. The defendant has not appealed the judgment against him.

The issues on appeal are whether the wife was guilty of fault which would constitute an independent ground for separation under C.C. art. 138 and whether the record supports the reduction in child support and alimony pendente lite'. We affirm the judgment of the trial court with respect to the issue of fault, and reverse the judgment reducing the award of alimony pen-dente lite and child support previously made.

The plaintiff and the defendant were married on December 27, 1975 and were judicially separated on July 2, 1979. Plaintiff and defendant lived apart until plaintiff became pregnant some time in 1980, at which time the plaintiff moved back into her husband’s home in July, 1980 without a reestablishment of the community between them. The only child of the marriage, John W. Leitz, IV was born on November 6, 1980. Plaintiff and defendant resided together until February, 1982 at which time the plaintiff moved out of the house with the minor child and filed for this separation.

The defendant in his reconventional demand alleged his wife’s cruel treatment of him as grounds for separation and her abandonment of him. The issue of the defendant’s fault is not before us here as he has not appealed that finding by the trial court. The plaintiff’s actions in this case must be of such a nature to constitute separate and independent grounds for a separation under C.C. art. 138. Her fault must be that fault contemplated by C.C. art. 138, see Adams v. Adams, 389 So.2d 381, 382 (La.1980). In Pearce v. Pearce, 348 So.2d 75, 77 (La.1977) our Supreme Court said:

“We have held that under this statute respecting an award of alimony to a wife without ‘fault’, the word ‘fault’ contemplates conduct or substantial acts of commission or omission by the wife violative of her marital duties and responsibilities.”

The defendant’s specific allegation of cruel treatment which would constitute fault was the plaintiff’s refusal to have sexual relations for extended periods of time. The evidence presented at trial shows that there existed a situation of sexual incompatibility between the plaintiff and defendant. The defendant’s expert witness, David Talmadge, a clinical social worker met with the couple for the purpose of counseling them.

At one such meeting the defendant related to Dr. Talmadge, in the presence of the plaintiff, that the marriage essentially had no sexual or very infrequent and limited sexual expression. Defendant’s counsel asked Dr. Talmadge if the plaintiff had made any complaints in that area to which he replied only insofar as she disagreed with him and felt like she could not enter into that relationship with him.

The plaintiff’s main justification for her refusal to engage in sexual relations, or the reason they were hindered, was fear of pregnancy subsequent to the birth of their child. At trial plaintiff estimated off the top of her head that they had sex on an average of 2 to 3 times a week, but one month before at her deposition she refused to give an estimate off the top of her head. Her estimate at trial was given after a lot more thought. The trial judge obviously felt that the plaintiff had denied her husband sexual relations, unjustifiably, because of a fear of pregnancy.

Plaintiff testified that she feared pregnancy because of the unstable condition at home yet her husband testified that she went off the pill and got pregnant after she was judicially separated from him in 1979. At that time plaintiff was not residing with the defendant. (Tr. I, p. 27). The plaintiff’s testimony in general is vague and ambiguous as to what she remembers and to what if any part she had in the marital breakup. The Court in Pearce v. Pearce, supra, said:

“In the area of domestic relations, much discretion must be vested in the trial judge and particularly in evaluating the weight of evidence which is to be resolved primarily on the basis of the credibility of witnesses. The trial judge having observed the demeanor of the witnesses is in a better position to rule on their credibility. Trosclair v. Trosclair, 337 So.2d 1216 (La.App. 1st Cir.1976). The factual findings of the trial court are therefore to be accorded very substantial weight on review. Gilberti v. Gilberti, 338 So.2d 971 (La.App. 4th Cir.1976).

We cannot therefore say in light of the testimony presented that the trial judge abused his discretion in finding the parties to be mutually at fault.

As to the issue of the reduction of the award of alimony pendente lite and child support previously made, neither party showed any change in circumstances warranting an increase or a decrease. The defendant testified that his financial situation was basically the same as at the earlier fixing, and did not show that the plaintiff’s circumstances had changed since the earlier award. Plaintiff likewise was unsuccessful in establishing a change of circumstances on the part of either party. Thus while we may feel, as obviously did the trial court in this instance, that the original award may be high, as no appeal was taken from that award and because we find a lack of a change of circumstances, we must conclude that the trial judge abused his discretion in reducing the award made to the plaintiff in July of 1982.

Accordingly, we affirm that portion of the judgment finding fault on the part of plaintiff. That portion of the judgment reducing the award of child support and alimony pendente lite is reversed and the original judgment of July 7, 1982 is reinstated. Each party to pay his own costs.

AFFIRMED IN PART, REVERSED IN PART.


author: AUGUSTINE, Judge.

text:
    Cecilia ZUVICEH, et al. v. Frank RODRIGUEZ.
    No. CA-0381.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 12, 1984.

      Marco A. Rosamano, New Orleans, for defendant-appellant.
    Elliot G. Snellings, New Orleans, for plaintiffs-appellees.
    Before KLEES, AUGUSTINE and LO-BRANO, JJ.
   AUGUSTINE, Judge.

Plaintiff-Appellees, Cecilia and Fred Zu-viceh, filed a petition against Frank Rodriguez, Appellant, claiming that their business was damaged by a fire which started on Rodriguez’s property. The petition stated that the fire was caused by and spread because of Rodriguez’s negligence. A default judgment was rendered in this matter on June 5, 1981. After the time for an appeal had run Rodriguez filed a petition for annulment of a final judgment. In response, the Zuviches filed an exception of no cause of action which was granted by the trial court. The petition to annul was amended and the Zuviches again filed an exception of no cause of action. The trial court granted the exception and Mr. Rodriguez appeals. We affirm.

In ruling on an exception of no cause of action all well-pleaded facts in the petition must be accepted as true, and any doubts resolved in favor of a finding that the pleadings are sufficient to state a cause of action. Thomas v. Schanzer, 433 So.2d 869 (La.App. 4th Cir.1983).

The facts as recited by appellant’s petition are that a report of the Fire Marshall of the City of New Orleans was the only evidence introduced concerning the cause of the fire; that the Fire Marshall’s report, as offered at the default confirmation hearing, was hearsay; and that the trial judge was deceived into believing that the report was not hearsay and therefore competent evidence.

It has been stated that,

La.C.C.P. arts. 2001-2006 provide the grounds for an action of nullity. These are the exclusive grounds for nullity of judgment. The facts alleged in the petition for nullity, therefore, must show entitlement to annullment based solely on these grounds. An action for nullity cannot be substituted for a timely appeal. LeGlue Buick, Inc. v. Smith, 390 So.2d 262 (La.App. 3d Cir.1980) and cases cited therein. Consequently, those issues not exclusively provided for in La. C.C.P. Arts. 2001-2006 will not be considered.

Williams v. N.Y. Fire and Marine Insurance Company, 427 So.2d 938, 939 (La.App. 4th Cir.1983) (emphasis added).

The appellant claims that since hearsay evidence was used to establish a prima facie case, the default judgment is invalid under LSA-C.C.P. art. 2002 which states that “A final judgment shall be annulled if it is rendered: ... (2) against a defendant ... against whom a valid judgment by default has not been taken...”

It is true that “hearsay evidence does not sustain the burden of proving a prima facie case.” Jones v. Ledet, 383 So.2d 1308 (La.App. 3rd Cir.1980) [citations omitted]. However, it is well established that art. 2002 is the basis for annulment of judgments only when there are technical defects of procedure or form. Accardo v. Dimiceli, 226 La. 435, 76 So.2d 521 (1954). Here the plaintiff does not allege any such defect in the judgment. As stated in Williams, an action for nullity cannot be substituted for a timely appeal. Thus the trial court was correct in refusing to annul its judgment under art. 2002.

In addition, the plaintiff claims that the judgment is subject to annulment because the defendant was guilty of ill practice within the meaning of LSA-C.C.P. art. 2004. Article 2004 states “that a final judgment obtained by fraud or ill practice may be annulled.”

The courts have taken a broad view of what constitutes “ill practice”:

The article is not limited to cases of actual fraud or intentional wrongdoing, but is sufficiently broad to encompass all situations wherein a judgment is rendered through some improper practice or procedure which operates, even innocently, to deprive the party cast in judgment, of some legal right, and where the enforcement of the judgment would be un-conscientious and inequitable.

Tapp v. Guaranty Finance Company, 158 So.2d 228, 233 (1st Cir.1963).

We are of the opinion that appellant’s allegations are insufficient to establish grounds for annulment under art. 2004. We cannot say that, as a matter of law, the use of hearsay testimony to prove an essential element of a case constitutes ill practice. Hearsay testimony which is received without objection becomes part of the evidence in the case, and may be used as proof to the extent that it has probative value. McCormick on Evidence § 54 (2d ed. 1972). See also Pugh, Work of the Appellate Courts, 1975-76 Term, Evidence, 37 La.L.Rev. 611 (1977) citing Coleman v. Victor, 326 So.2d 344 (La.1976). It would contradict the foregoing principle to hold that an attorney commits ill practice by submitting hearsay evidence in a default confirmation hearing. Thus we must conclude that a judgment based on such evidence cannot be annulled under art. 2004.

Because we are of the opinion that the plaintiff failed to establish a cause of action for the annulment of a judgment under L.S.A.-C.C.P. Arts. 2002 and 2004 we must affirm the trial court’s decision.

For the foregoing reasons the exception of no cause of action is affirmed.

AFFIRMED.


author: AUGUSTINE, Judge. LOBRANO, Judge,

text:
    Lois LACEY v. LOUISIANA COCA COLA BOTTLING CO., LTD.
    No. CA-0527.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 12, 1984.
    Writ Granted March 9, 1984.

      Reuter & Reuter, Kurt S. Blankenship, Arthur C. Reuter, Jr., New Orleans, for defendant-appellant.
    Singerman, Cosentino, Toups & Troyer, John P. Cosentino, James R. Hashek, New Orleans, for plaintiff-appellee.
    Before REDMANN, C.J., and KLEES, AUGUSTINE, CIACCIO and LOBRANO, JJ.
   AUGUSTINE, Judge.

This appeal arises out of a tort claim by Mrs. Lois Lacey against the Louisiana Coca-Cola Bottling Company (Bottler). The trial court awarded judgment in favor of Mrs. Lacey and the Bottler appeals, alleging that Mrs. Lacey failed to prove who bottled the particular beverage that caused the injury. We conclude that the evidence was insufficient to prove who bottled the beverage in question and reverse the ruling of the trial court.

On January 2, 1981, Brian McCurley purchased for Lois Lacey a canned Fresca beverage from the Seven-Eleven Food Store located at 6050 Magazine Street in New Orleans. During lunch, Mrs. Lacey opened the can by pulling the metal tab and drank approximately one quarter to one half of the beverage. After experiencing a burning sensation on her tongue and in her throat, Mrs. Lacey spat the beverage into the sink. She then poured part of the remaining contents into a styrofoam cup and noticed it was a greenish color instead of its normal clear color. Other witnesses present at the incident testified that the liquid had a foul acidic odor. Mrs. Lacey immediately went to the rest room to regurgitate, and thereafter sought medical treatment. The remaining portion and the can was taken to the Seven-Eleven headquarters in Metairie to be analyzed. Evidence indicated that the beverage had been contaminated.

Mrs. Lacey subsequently filed suit against Seven-Eleven Food Store and the alleged bottler, Louisiana Coca Cola Bottling Company. Seven-Eleven filed a motion for summary judgment which was granted by the trial court thereby dismissing them from further proceedings. The case proceeded to trial against the Bottler based upon the previously recited facts. The trial court rendered judgment in favor of Mrs. Lacey for $6,633.95.

The first requirement of proof in a case where damages are sought from a soft drink manufacturer is to show the product was bottled and/or manufactured by that manufacturer. Paul v. Hardware Mutual Ins. Co., 254 So.2d 690 (La.App. 3rd Cir.1971) held that the plaintiff must produce evidence showing “some connection between the manufacturer and/or bottler and the allegedly tainted beverage.” 254 So.2d at 691. In Paul, the Third Circuit stated that although there was evidence that a contaminated soft drink was purchased unopened from a Lake Charles store, without any other evidence, this was insufficient to connect the bottling of the beverage with the Bottling Company. Such failure by the plaintiff to prove this element as to the defendant bottler required a reversal of the trial court’s award.

In the present case, plaintiff produced no evidence at trial that the defendant was the bottler of the beverage in question. Instead, Mrs. Lacey relied on the affidavit obtained from Mr. Henry Leach, Supervisor of the Seven-Eleven Food Store, wherein he stated that canned beverages including Fresca are purchased from Louisiana Coca Cola Bottling Company, Ltd. for resale in the Seven-Eleven stores. This affidavit, submitted to the record prior to trial was offered in support of its motion for summary judgment.

For three reasons, the court should not have taken into consideration the affidavit as evidence against the Bottler. First, only Mrs. Lacey and Seven-Eleven were parties to the motion and thus Coca-Cola had no opportunity to respond to the self-serving statements made by Mr. Leach to exculpate Seven-Eleven. Second, although it is part of the record, the affidavit was not introduced into evidence by the plaintiff during the trial. Third, the affidavit was hearsay and had the plaintiff sought to introduce St, objections by the defendant based on the hearsay nature of the affidavit should have been sustained.

“Affidavits on material facts are inadmissible because they are hearsay, and deny the privilege of cross-examination; and an ex parte affidavit made without opportunity for cross-examination rarely, if ever, is admissible to prove the facts therein recited. Thus matters material to the issues are to be proved or controverted by the testimony of competent witnesses taken at the trial or by deposition, so as to permit cross-examination; and where an affidavit is admitted with respect to a material allegation without allowing an opportunity to cross-examine the affiant, the admission of such an affidavit into evidence constitutes substantial error and renders further proceedings nugatory.” 2A C.J.S. Affidavits § 58 (1972).

In addition, a ruling m favor of the appellant would be tantamount to stating that this court takes judicial notice of the fact that all Fresca beverages sold in the City of New Orleans are bottled by the Louisiana Coca-Cola Bottling Company. The court in Paul correctly rejected the opportunity to make such a pronouncement and we accept the wisdom of that case.

Therefore, it is apparent that there was no evidence before the trial court to establish any connection between the Bottler and the contaminated Fresca. As a result Mrs. Lacey failed to satisfy the first element of proof in seeking damages from the manufacturer, and thus failed to prove a prima facie case.

For the foregoing reasons, the judgment of the trial court is reversed.

REDMANN, C.J., and LOBRANO, J., dissent with reasons.

LOBRANO, Judge,

with whom RED-MANN, C.J. joins, dissenting.

I respectfully dissent. Although I disagree with plaintiff’s argument that we can take judicial notice that Fresca is bottled by Louisiana Coca-Cola, I am of the opinion that she has proved that fact by a preponderance of the evidence. Plaintiff testified on direct examination, without objection by defendant, as follows:

Q. “Do you know what company bottles and produces that drink?
A. I was told that Coca-Cola is the company that bottles the drink.”

Under cross examination, the plaintiff further testified:

Q. “You can’t tell us today, can you, that Fresca is manufactured by Louisiana Coca-Cola, can you?
A. I brought the cold drink to the store, and they in turn told me at the Seven-Eleven store that it was a Coca-Cola product ...”
All you had to go on was what someone at Seven-Eleven told you, is that correct? <e
Yes or no, then explain. 40
At that time, I didn’t know who had put out Fresca, no, but I do now know who puts out Fresca. >
You know that because someone at Seven-Eleven told you that, isn’t that correct? 40
No, I know that because at that time that instant, they told me Coca-Cola had put the cold drink out, but since then, I personally know that Coca-Cola put the cold drink out.
How do you know that? 40
Because number one, I have talked to Coca-Cola people, and they admitted they were the ones that put out the product. >
Q. Give me specific times and dates that you discussed this with Coca-Cola.
A. Oh, gee, specific times and specific dates. When the incident happened, I called Coca-Cola trying to find out who did I get papers from to go to the doctor, and they in turn gave me a call back finally sometime. I don’t know the exact time or date they did call me back, but that was evidence to say they put the product out. They did pay for my medical, so that was proof enough there to say that they put the product out.
Q. You received a check for $288.00 already haven’t you?
A. Yes, that’s what they paid for my different tests and stuff I had to have done.”

In response to this testimony, defendant did not offer any evidence whatsoever to refute same. I do not find that the trial court abused his discretion or committed manifest error in holding defendant liable.

      . "The doctrine of judicial notice was not meant to preclude the burden of proof that must of necessity be the hurdle or obstacle in a claimants path.” Cha-Jua v. Department of Fire, 439 So.2d 1150 at 1153 (La.App. 4th Cir.1983).


author: BYRNES, Judge.

text:
    STATE of Louisiana v. Stanley HARPER.
    No. KA 1059.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 12, 1984.
    Harry F. Connick, Dist. Atty. for the Parish of Orleans, William R. Campbell, Jr., and John H. Craft, Asst. Dist. Attys., New Orleans, for state.
    Walter L. Sentenn, Jr., Dwight Doskey, New Orleans, for defendant-appellee.
    Before BYRNES, LOBRANO and WILLIAMS, JJ.
   BYRNES, Judge.

Defendant, Stanley Harper, was convicted of theft of property in the amount of $650.00, a violation of La.R.S. 14:67. He was sentenced as a second offender to 5 years at hard labor with credit for time served. On appeal, Harper asks this court to review the record of his conviction for errors patent.

FACTS

On October 27, 1982 David Gross observed two black males loading armfuls of clothing into a blue Maverick parked next to Collections III, a clothing store in the Riverbend Shopping Area. Sara Warren, a saleswoman at Collections III, also observed two men carry merchandise from the store into the same blue Maverick. She also observed a black female get into the car. Both Mr. Gross and Ms. Warren wrote down the car’s license plate number. Ms. Warren called the police.

Shortly thereafter the police stopped a car which fit the description given by Ms. Warren. There were two black males and a black female in the car, as well as several articles of clothing with price tags still on them. Ms. Warren and the manager of Collections III were taken to where the car was stopped. Ms. Warren identified the defendant as one of the men she had seen in front of the store earlier. The manager identified one of the men and the woman as having been in the store two days before the incident. At trial, Ms. Warren again identified the defendant. The arresting officers also testified that the defendant was one of the men who had occupied the stopped car. Photographs of the Maverick, its license plate, and the merchandise found in the car were also introduced at trial.

One of the arresting officers testified that six skirts were recovered from the car. The other arresting officer, Ms. Warren and the manager of Collections III all testified that approximately ten skirts had been recovered. The State had retained only two of the merchandise tags from these articles. A six man jury unanimously concluded that Harper was guilty of theft of property valued at $650.00 (ten skirts, valued at $65.00 each).

ERRORS PATENT

Defendant was convicted on January 24, 1983, and was sentenced on January 27, 1983. He was resentenced as a second offender on February 28, 1983. Code of Criminal Procedure Article 873 requires that, “If a defendant is convicted of a felony at least three days shall elapse between conviction and sentence....” This three day delay commences on the day after the conviction. State v. Johnson, 275 So.2d 405 (La.1973).

It is clear from the face of the record that the defendant was sentenced before this mandatory three day delay had passed. However, it is not clear that this error by the trial judge warrants reversal or remand.

At sentencing, no objection was made concerning the failure to observe Article 873 delays. There has been no showing that the defendant was prejudiced in any way by the trial court’s failure to observe these delays. Moreover, defendant was re-sentenced as a multiple offender on February 28, 1983, some 34 days after his conviction. Thus, even though defendant’s original sentence was prematurely fixed it appears that his final sentence was imposed well after the delays mandated by C.Cr.P. Art. 873.

In deciding whether an error patent on the face of the record requires reversal . ... “it must be evaluated in the light of its potential impact on the fairness of the proceedings.” State v. White, 404 So.2d 1202 (La.1981). C.Cr.P. Art. 921 clearly states that, “A judgment or ruling shall not be reversed by an appellate court because of any error, defect, irregularity, or variance which does not affect substantial rights of the accused.” (Emphasis added)

In this case, there has been no showing that the defendant’s rights were prejudiced in any way by his premature sentencing. Accordingly, we conclude that while the imposition of sentence on the defendant before the statutorily required delays was error, that error did not affect substantial rights of the defendant and therefore does not warrant reversal.

We have also reviewed the record for sufficiency of evidence and find that a rational trier of fact, viewing the evidence in the light most favorable to the prosecution, could have found that the essential elements of the offense were proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1970). State v. Edwards, 400 So.2d 1370 (La.1981).

Defendant’s conviction and sentence are affirmed.

AFFIRMED.


author: CIACCIO, Judge.

text:
    Mahmud S. MAHMUD v. Dianne McShea MAHMUD.
    No. CA 0978.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 12, 1984.
    Bruce G. Reed, Reed & Reed, New Orleans, for defendant-appellant.
    Girard J. Fernandez, New Orleans, for plaintiff-appellee.
    Before GARRISON, KLEES and CIAC-CIO, JJ.
   CIACCIO, Judge.

Defendant-wife, Dianne McShea Mah-mud, appeals from a trial court judgment concerning the classification of certain property as the separate property of the plaintiff-husband, Mahmud S. Mahmud. We affirm the trial court judgment.

The parties were married on November 14, 1970, in Rome, Italy. In March, 1977, the parties established, for the first time, a matrimonial domicile in Louisiana. On May 12, 1982, the parties were divorced. In February, 1983, a hearing was held for a partition of community property.

The trial court found that the status of only five assets was in dispute. Three of these assets he found to be community and ordered a partition. Neither party has appealed this portion of the judgment, and we will consider it final.

The remaining two assets were found by the trial court to be the separate property of the husband-plaintiff. The wife has appealed from this portion of the judgment, arguing that the property should be considered community. She also appeals from the ruling of the trial court that each party should pay its own costs and attorney fees. She argues that attorney fees should be paid by the community.

The two assets found by the trial court to be Mr. Mahmud’s separate property were a piece of real estate located in the city of New Orleans and a 1976 Buick automobile.

The real estate was acquired by Mr. Mahmud in June, 1977. The document of purchase contained a declaration by Mr. Mahmud “that he is purchasing the property described herein with his separate and paraphernal funds which have always been under his separate administration and control and that the property described herein is to be his separate and paraphernal property.” The document also contains a declaration by “Mrs. Dianne McShea wife of Mahmud S. Mahmud”, acknowledging “that the property described herein is the separate and paraphernal property of her said husband, being acquired by him with his separate and paraphernal funds which have always been under his separate administration and control.” The document was signed by Mahmud S. Mahmud and by Mrs. Dianne McShea Mahmud.

The first sentence of La.C.C. Art. 2342 provides that “A declaration in an act of acquisition that things are acquired with separate funds as the separate property of a spouse may be controverted by the other spouse unless he concurred in the act.” In Monk v. Monk, 243 La. 429, 144 So.2d 384 (1962), the Louisiana Supreme Court articulated the rule as it had been developed in the jurisprudence.

It has long and firmly been established under the jurisprudence of this court that a husband who has been a party to an act of purchase, in which it is declared the consideration belonged to the wife in her paraphernality and the property is to be such, either by signing the deed or as a witness thereto, cannot, thereafter, be heard to contradict it. Rousseau v. Rousseau, 209 La. 428, 24 So.2d 676; Pfister v. Casso, 161 La. 940, 109 So. 770; Tonglet v. Chopin, 155 La. 752, 99 So. 587; Fireman’s Ins. Co. v. Hava, 140 La. 638, 73 So. 708; Karcher v. Karcher, 138 La. 288, 70 So. 228; Maguire v. Maguire, 40 La.Ann. 579, 4 So. 492. This is known in law as estoppel by deed, and is based on the public policy of this state in order that there may be some security of titles.

In McGee v. Harris, 333 So.2d 440 (La.App. 3d Cir.1976), the Third Circuit Court of Appeal stated:

The law is settled that a husband who has been a party to an act of sale of real property to his wife, in which it is declared that the price was paid with the separate funds of the wife and that the property is to be her separate property, cannot afterwards contradict that declaration, in the absence of allegations of fraud, error or duress. Under those circumstances, the husband is estopped from denying the declaration made by him that the property was purchased with the separate funds of his wife and that it is to be her separate property. This rule has been referred to at times as estoppel by deed, and it is applied in order that there may be some security of titles. LSA-C.C. art. 2236; Monk v. Monk, 243 La. 429, 144 So.2d 384 (1962); Airhart v. Airhart, 153 So.2d 140 (La.App. 3 Cir.1963); Succession of Barr, 219 So.2d 817 (La.App. 2 Cir.1969); Moore v. Moore, 187 So.2d 145 (La.App. 2 Cir.1966); Rousseau v. Rousseau, 209 La. 428, 24 So.2d 676 (1946); Pfister v. Casso, 161 La. 940, 109 So. 770 (1926); Maguire v. Maguire, 40 La.Ann. 579, 4 So. 492 (1888); Kerwin v. Hibernia Insurance Company, 35 La.Ann. 33 (1883).

In a holding with which we express complete agreement, the Third Circuit in McGee v. Harris, went on to say, “that the same rule of estoppel which has been applied consistently against the husband should also be applied against the wife.” (333 So.2d at 445)

We, therefore, find no error in the trial court judgment that the real estate is the separate property of Mr. Mahmud.

The 1976 Buick automobile was acquired by Mr. Mahmud in the city of Philadelphia, Pennsylvania, prior to the parties establishing their domicile in Louisiana. In Succession of Dunham, 408 So.2d 888 (La.1981), the Louisiana Supreme Court stated, “it is well settled that where the issue under consideration is the classification of moveable property in terms of whether it is community or separate property of a married couple, we must look to the law of the parties’ domicile at the time of the acquisi-tion_ Succession of Thomas, 35 La. Ann. 19 (1883); and Succession of Pack-wood, 12 Rob. 366 (1845); 18 La.L.Rev. 557 (1958); Restatement (second) of Conflict of Laws Sec. 258 (1969); H. Goodrich and E. Scoles, Conflict of Laws Sections 124 and 125 (4th Ed.1964).” At the time Mr. Mah-mud acquired the car, he and his wife had not yet established a domicile in Louisiana. The law of Louisiana, therefore, is not applicable to determine the classification of the car.

Appellant argues that because no evidence was presented to the contrary, we must assume that Pennsylvania law is the same as the law of Louisiana. While it is permissible for a court to presume that the law of another state is the same as the law of Louisiana, absent a showing of what the other state’s law is (See: Jackson v. Jackson, 425 So.2d 379 (La.App. 3d Cir.1982) and Johnson v. Nationwide Life Insurance Company, 388 So.2d 464 (La.App. 2d Cir.1980) and cases cited therein.), the court is not required to make such a presumption. A Louisiana appellate court may, on its own initiative, inquire into another state’s law where applicable. La.C.C.P. Art. 1391; Gathright v. Smith, 368 So.2d 679 (La.1979) and cases cited therein.

Pennsylvania is not a community property state. Less than five months after it was enacted, The Community Property Law of Pennsylvania (Acts 1947, July 7, P.L. 1423, enacted as Title 48, Chapter 5 Sections 201-215 of the Pennsylvania Statutes) was declared unconstitutional, inoperative and void in its entirety by the Supreme Court of Pennsylvania on November 26, 1947, in the case of Willcox v. Penn Mutual Life Insurance Co., 357 Pa. 581, 55 A.2d 521 (1947). More recently, the Pennsylvania Superior Court, citing Willcox, stated, “the concept of ‘community property’ is repugnant to the law of Pennsylvania.” Everson v. Everson, 264 Pa.Super. 563, 400 A.2d 887 (1979), affirmed as modified, 494 Pa. 348, 431 A.2d 889 (1981).

We, therefore, find no error in the trial court judgment that the 1976 Buick automobile is the separate property of Mr. Mahmud.

As to attorney’s fees, we likewise find no error in the trial court judgment which instructs each party to pay his own costs and attorney’s fees. This court stated in Ware v. Ware, 365 So.2d 842 (La.App. 4th Cir.1979), writ denied 368 So.2d 144 (La.1979),

This partition suit was filed three months after the judgment of divorce, a year and a half after the effective date of termination of the community. Thus C.C.P. 4613 governs, and it expressly prohibits charging any represented party any part of another party’s attorney’s fee. The fees are not due from the community. Talbert v. Talbert, 1942, 199 La. 882, 7 So.2d 173; Lane v. Lane, La.App. 4 Cir.1978, 375 So.2d 660. Thus the wife has no interest in the fixing of the amount of the husband’s attorney’s fee and vice versa.

The controlling facts of this case are similar and the judgment of the trial court is correct.

Accordingly, the judgment of the trial court is affirmed. All costs are to be paid by appellant.

AFFIRMED.