author: WILLIAMS, Judge. LOBRANO, Judge,

text:
    Henry R.J. COURNOYER v. EXECUTIVE OFFICE CENTERS, INC.
    No. CA-0786.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 1, 1983.
    Rehearing Denied Feb. 22, 1984.
    Writ Granted April 13, 1984.
    Vallerie Oxner, Metairie, for defendant-appellant.
    Richard K. Leefe, New Orleans, for plaintiff-appellee.

      Before AUGUSTINE, LOBRANO and WILLIAMS, JJ.
   WILLIAMS, Judge.

This is an appeal from a decision of the trial court to grant a preliminary injunction restraining the Civil Sheriff from the seizure and sale of property of which appellant is mortgagor.

On December 30, 1982, defendant-appellant filed a petition for executory process alleging that plaintiff had defaulted upon a mortgage. The petition for executory process alleged that the plaintiff had defaulted on a promissory note that had been par-aphed ne variatur to an act of credit sale which contained the confession of judgment and consent to seizure and sale. Attached to the petition was the original of the promissory note and a certified copy of the mortgage. The petition was a verified petition and alleged the specifics of the default.

The plaintiff filed for an injunction against the seizure and sale of the property on the ground that there was a genuine issue of whether the note was in default at the time. The trial court granted the injunction, apparently on two grounds, i.e. that executory process was not available because the allegations were not proved by the defendant’s petition and that there was a genuine dispute over whether the note was in default. It appears, therefore, that there are two issues presently before this court: (1) whether the petition for executo-ry process filed by plaintiff is sufficient in and of itself to warrant executory process, and (2) whether executory process was warranted at the time the petition was filed.

I. SUFFICIENCY OF PETITION

Article 2751 of the Louisiana Code of Civil Procedure provides that a seizure and sale may be enjoined only when (1) the debt secured by the mortgage is extinguished or legally enforceable, or (2) if the procedure for an executory proceeding has not been followed.

Defendant argues that the petition that it filed was clearly sufficient under the rules set forth by the La.Code of Civil Procedure. La.C.Civ.Pr. art. 2635 provides that the note, bond or other instrument .showing the obligation secured by the mortgage, and the authentic act of mortgage on a movable property containing the confession of judgment must be attached to a petition in order to prove a petitioner’s right to executory process. In the present case, defendant complied with these requirements. Furthermore, in its verified petition, the plaintiff set forth specifically the manner in which defendant had allegedly defaulted on the note. It has been consistently held that a plaintiff must allege and prove the breach of the condition of the mortgage which created the default by either a verified petition or an affidavit, E.g. Chrysler Credit Corp. v. Stout, 404 So.2d 304 (La.App.1981).

In the instant case it appears that the defendant set forth sufficient facts to prove the existence of a default on the mortgage. Defendant also complied with all of the requirements of 2635. The trial court, therefore, would have been in error if it had granted a preliminary injunction on these claims.

II. DEFAULT

Plaintiff argues that it is entitled to a preliminary injunction because the warranty agreement shows that the proper amount of interest was paid and the mortgage was not in default.

Defendant claimed that plaintiff defaulted by not paying the proper amount of interest. According to the terms of the note and the mortgage, interest payments were due monthly at a rate of 9% per annum until such time that the rent of the building exceeded $19,583.00. For each month that the rent would exceed this figure, the interest was 10% per annum. The promissory note and the act of credit sale require plaintiff to supply defendant with financial statements on the building so that defendant would be able to tell if plaintiff were paying the correct interest. Defendant claims that plaintiff defaulted on its note because it has been paying interest at a rate of only 9% per annum when the rent roll had exceeded the requisite figure for a number of months.

At the time of the act of sale, the parties entered into a warranty agreement. In that agreement, the defendant agreed to an audit of its books and agreed also to reduce the balance of the note for 10 times any maintenance expenses found in the audit that were in excess of $6,755.13. Plaintiff argues that under the terms of this agreement, defendant owes it a payment credit against the note, and therefore, the amount of interest paid each month, is in excess of the 10%.

A preliminary injunction is granted when a plaintiff makes a prima facie showing that he is entitled to relief and that he will suffer irreparable injury if the preliminary injunction is not granted. La.C.Civ.Pr. art. 3601, et seq. Because injunctive relief is provided for by the Code of Civil Procedure, the question in the instant case is whether plaintiff has made a prima facie showing that it will prevail upon the merits.' See Schwegmann Bros. Giant Supermarkets v. Louisiana Milk Comm’n, 290 So.2d 312 (La.1974). The evidence in the record includes the petition for injunctive relief filed by plaintiff, in which plaintiff denied that both the note was in default and that the rent roll exceeded the amount necessary to ulerease the interest due. Furthermore, plaintiff also alleged in its petition that it ’ has overpaid its interest each month, in spite of the warranty agreement, and, therefore, has paid the amount that defendant claims it owes. Other than copies of the mortgage note and the warranty agreement, no other evidence was introduced into the record.

The wording contained in the warranty agreement is ambiguous. It provides in pertinent part:

“In the event that the audit reveals maintenance expenses in excess of $6,755.13, then such excess, multiplied by 10, shall be subtracted from the principal balance of the vendor’s lien note, and any interest paid on said amount by which the principal is reduced shall be credited against interest to accrue thereafter.”

The procedure by which this credit is to take place is not contained in the record. The wording would seem to suggest that the credit should take place at such time as the audit would indicate maintenance expenses in excess of the $6,755.13. There is no evidence in the record, however, that such a credit was made or that such a credit was ever requested to be made at any time during the six years since the warranty agreement was entered into. Nowhere in the warranty agreement does it say that such a credit is to operate automatically.

Plaintiff has the burden of making a prima facie showing that there is a likelihood that it will prevail on the merits of a trial on a permanent injunction. In the present case, there is not enough evidence contained in the record to support a finding that such a showing has been made. The only evidence submitted by plaintiff is its claims in its petition that it paid certain amounts under protest and that the rent rolls never exceeded the requisite amount, and the ambiguous wording of the warranty agreement. There is no evidence to support these allegations. Plaintiff did not introduce any affidavits or exhibits to show exactly what the rent rolls were and exactly how the rent was paid in protest.

In view of the scant evidence presented to the trial court by the plaintiff below, we cannot find that a prima facie showing was made that plaintiff would prevail on the merits of a permanent injunction.

For these reasons, the decision of the trial court granting the preliminary injunction is reversed.

REVERSED.

LOBRANO, J., concurs.

LOBRANO, Judge,

concurring.

I respectfully concur in the reversal of this matter. Simply put, the plaintiff-ap-pellee alleged the necessary facts required under Article 2751 of the Code of Civil Procedure to arrest the seizure and sale. However, the record is void of any evidence whatsoever to support those allegations. The judgment granting the preliminary injunction recites that a hearing took place and evidence was submitted, however I am unable to find any.


source: Caselaw Access Project

author: GARRISON, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Glenn K. GIVENS.
    No. KA 0546.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 9, 1983.
    Rehearing Denied Feb. 22, 1984.

      Harry F. Connick, Dist. Atty., William R. Campbell, Jr., Asst. Dist. Atty. for Parish of Orleans, New Orleans, for plaintiff-ap-pellee.
    Clay J. Calhoun, Jr., New Orleans, for defendant-appellant.
    Before GARRISON, BARRY and BYRNES, JJ.
   GARRISON, Judge.

Defendant Glenn Givens appeals from his jury conviction of simple burglary of an inhabited dwelling.

On September 12, 1980, Glenn Givens was charged by bill of information with simple burglary of an inhabited dwelling, a violation of LSA-R.S. 14:62.2. Also charged was Larry Shelby. A motion for severance filed by Shelby was granted by the trial judge after testimony at a pre-trial hearing indicated that Givens had implicated Shelby in several burglaries by statements made to police officers following their arrest. On July 25, 1982, defendant Givens was found guilty as charged by a jury on one count of burglary of an inhabited dwelling. The State filed a multiple offender charge against the defendant pursuant to LSA-R.S. 15:529.1 and on September 3, 1982, Givens was sentenced to twenty-four (24) years at hard labor, with credit for time served, the maximum sentence permissible under the statute. From this conviction and sentence, defendant appeals.

ASSIGNMENT OF ERROR NO. 1

The defendant relies on six assignments of error for reversal of his conviction and sentence. The first assignment of error is that the trial court erred in refusing to grant a mistrial when it became evident that the State incorrectly denied that a recorded acknowledgement by defendant of an alleged earlier oral confession constituted an inculpatory statement and that defendant should have been given formal notice prior to trial. Because the defense failed to brief or argue this assignment of error, we consider it abandoned. State v. Phillips, 337 So.2d 1157 (La.1976); State v. Blanton, 325 So.2d 586 (La.1976); State v. Carlisle, 315 So.2d 675 (La.1975).

ASSIGNMENT OF ERROR NO. 2

The defendant argues that the trial court erred in permitting the State to cross-examine the defendant and a defense witness as to their use of drugs. Although counsel for the defense objected to this line of questioning by the prosecution, he failed to move for either a mistrial or an admonition to the jury at this point. The fact that the jury had already been exposed to this line of questioning rendered defense counsel’s objections worthless. It was the duty of the defense to move for a mistrial or for an admonition at this point in order to remedy any possible errors. Procedural rules have been devised requiring the offended party to call any error to the judge’s attention at a time when it can be remedied. State v. Kersey, 406 So.2d 555 (La.1981).

After further questioning on recross examination by the prosecution about the defendant and the defense witness’ drug use, the defense requested an admonition to be given to the jury to disregard these questions. The judge promptly gave this admonition. Counsel for the defense now claims that the defendant’s conviction should be reversed due to this allegedly improper line of questioning. We find no merit in this contention. Any possible, error was cured by the judge’s admonition. LSA-C.Cr.P. Art. 771. State v. Albert, 381 So.2d 424 (La.1980).

This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 3

Defendant contends that the trial court erred in refusing to grant a mistrial when defense counsel objected to the court’s manner and form in giving an admonition to the jury. Regardless of the manner or form used, this admonition adequately informed the jury that the prosecutor’s questions were to be disregarded. Therefore, this assignment of error is without merit. State v. Green, 416 So.2d 539 (La.1982).

ASSIGNMENT OF ERROR NO. 4

The defendant claims that the trial court erred in overruling a defense objection to the State’s attempt to have defendant lift his shirt sleeves in an attempt to impeach his credibility. The objection was properly overruled because each side is allowed to impeach the credibility of any adverse witness, including the defendant. LSA-R.S. 15:486. An examination of the record shows that counsel for the defense opened the door to questions about the defendant’s drug use on his direct examination. Therefore, the State had the right to discredit the defendant’s testimony concerning his drug use by requesting that he roll up his shirt sleeves. State v. Barnes, 365 So.2d 1282 (La.1978).

This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 5

Defendant alleges that the trial court erred in failing to adequately consider the mandatory sentencing guidelines of Article 894.1 of the Louisiana Code of Criminal Procedure. A review of the record indicates that the trial judge, in sentencing the defendant, considered the fact that defendant was a multiple offender and reasoned that it was very probable that he would commit other crimes if given the opportunity. Although the trial court did not enumerate each factor under Article 894.1, the record reflects that the trial court did “state for the record the considerations taken into account and the factual basis therefor in imposing sentence.” La. C.Cr.P. Art. 894.1(C). In doing so, the trial judge sufficiently complied with Art. 894.1. State v. Donahue, 408 So.2d 1262 (La.1982); State v. Douglas, 389 So.2d 1263 (La.1980).

This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 6

Finally, defendant contends that the trial court erred in imposing an unconstitutionally excessive sentence. A sentence is excessive and violates La. Constitution Article 1 Section 20 if it is grossly out of proportion to the severity of the crime or nothing more than the purposeless and needless imposition of pain and suffering. State v. Gulden, 399 So.2d 194 (La.1981); cert. denied 454 U.S. 1150, 102 S.Ct. 1017, 71 L.Ed.2d 305, State v. Bonanno, 384 So.2d 355 (La.1980). The imposition of the 24-year maximum sentence in this case does not violate this provision of the Louisiana Constitution. As stated above, the trial judge specified that he sentenced the defendant to the maximum time allowable in order to prevent this multiple offender from committing other crimes in the future. Therefore, this sentence is not excessive and this assignment of error is also without merit.

For the reasons assigned, the conviction and sentence are affirmed.

AFFIRMED.


text:
    STATE of Louisiana v. Eric B. ROBERSON.
    No. KA 0959.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 9, 1983.
    Rehearing Denied Feb. 22, 1984.
    Writ Denied April 23, 1984.

      William J. Guste, Jr., Atty. Gen., Barbara B. Rutledge, Asst. Atty. Gen., Crim. Div., Harry F. Connick, Dist. Atty., Joanne C. Marier, Asst. Dist. Atty., Parish of Orleans, Susan Hunt, New Orleans, for plaintiff-appellee.
    Harold D. Marchand, New Orleans, for defendant-appellant.
    Before GARRISON, AUGUSTINE and BYRNES, JJ.
   GARRISON, Judge.

Defendant Eric Roberson was arrested on October 19,1982, and charged with armed robbery, a violation of LSA-R.S. 14:64. A motion to suppress the identification was heard on December 10, 1982, and was denied. After trial on February 3 and 4, 1983, a twelve-member jury returned a verdict of guilty as charged against the defendant. The trial court sentenced the defendant to serve 99 years at hard labor. Defendant has appealed his conviction and sentence, alleging the trial court’s error in the following respects: (1) denying the motion to suppress the identification; (2) commenting on the evidence; and (3) imposing an excessive sentence.

FACTS

The evidence introduced at trial established that two men entered the accounting office of the New Orleans Country Club on the afternoon of October 15, 1982, and at gunpoint demanded money from an employee of the country club, Molly Reinman. They then forced eight employees into a walk-in vault and closed the door behind them. Upon retreating from the office, the perpetrators took the purse of one of the employees, Joan Fleetwood. After the men left, the victims summoned the police and each gave the officers a description of the perpetrators. These descriptions, while varying in detail, were for the most part consistent. The perpetrators were also seen leaving in a dark green 1970 or 1971 Chevrolet with a black front fender.

Four days after the commission of the armed robbery, investigating officers observed an automobile fitting the description of the vehicle used by the perpetrators, parked in front of 3824 Hamilton, approximately four or five blocks from the scene of the offense. The defendant came out of the residence at that address and told the officers the car was not his, but that he had been using it for approximately one week. Roberson allowed officers to search the car and when a purse was found which matched the description of the stolen purse, the defendant was placed under arrest.

On Qctober 21, 1982, officers held a photographic lineup, composed of photographs of nine suspects, at the New Orleans Country Club. Two witnesses, Molly Reinman and Theresa Hicks, identified a photograph of the defendant as one of the perpetrators. The other witnesses could not make a positive identification.

Approximately one week later, a physical lineup was also conducted at Central Lockup in connection with the case. Four witnesses, Theresa Hicks, Molly Reinman, Joan Fleetwood and Williamson Bliss, selected the defendant from five other subjects as a perpetrator of the crime. Two other witnesses selected another subject as the perpetrator.

ASSIGNMENT OF ERROR NUMBER 1

In this assignment, appellant contests the denial of his Motion to Suppress the Identification, claiming that the identification procedures used in the investigation of his case, a photographic and a physical lineup, were impermissibly suggestive. He maintains that these allegedly defective identification procedures tainted in-court identifications of appellant, leading to his conviction for armed robbery.

The Louisiana Supreme Court has held that a lineup is unduly suggestive if the identification procedure displays the defendant so that the witness’ attention is focused on the defendant. State v. Smith, 430 So.2d 31 (La.1983); State v. Robinson, 386 So.2d 1374 (La.1980). A lineup may also be suggestive if a sufficient resemblance of physical features and characteristics of persons in the lineup does not exist to reasonably test the identification. State v. Nicholas, 397 So.2d 1308 (La.1981); State v. Robinson, supra. Strict identity of physical characteristics among the persons depicted in a physical or photographic lineup is not required. All that is required is a sufficient resemblance to reasonably test the identification. State v. Smith, supra; State v. Guillot, 353 So.2d 1005 (La.1977).

In the case before us, after reviewing the photographs of both the physical and the photographic lineup, we do not find either identification procedure to have been unduly suggestive. The record reflects that the officers took adequate precautions in separating the witnesses during the photographic lineup, and in individually asking each witness to carefully review the photographs in the photographic lineup. The photographs themselves depict men with generally similar skin color, complexion, facial hair and features. None of the photographs has any distinguishing marks. The defendant in no way stands out from the other eight subjects depicted, and we note that there appears to be an adequate matching of basic physical appearance. With respect to the physical lineup, it is clear from the testimony adduced at the hearing on the motion to suppress that the procedures used were proper, and that there was a sufficient matching of basic physical and facial characteristics. State v. Stucke, 419 So.2d 939 (La.1982), State v. Williams, supra.

We conclude that both lineups contained subjects with sufficient similarities to test the identification, and in neither lineup would the victim’s attention have been focused on the defendant because of distinctive features.

This assignment of error is without merit.

ASSIGNMENT OF ERROR NUMBER 2

In this assignment, appellant contends that the trial judge erred in commenting on the evidence. His complaint focuses upon the following exchange, which occurred during the testimony of a defense witness:

Q. Do you recall what kind of ear he was driving?
A. Yes, I do.
Q. What was it?
A. A green Chevrolet.
Q. With a black bumper?
A. I don’t know.
BY THE COURT:
Fenders, wasn’t it?
BY MR. TOSTERUD:
Fenders, yes.
BY THE COURT:
Q. Did it have black fenders on it?
A. I don’t know.
BY MR. MARCHAND:
Your Honor, I’m going to object to the court commenting on the ... on any previous testimony.
BY THE COURT:
What’s that, sir?
BY MR. MARCHAND:
I’m going to object to the court commenting on the evidence, Your Honor.
BY THE COURT: I’m not commenting on the evidence. I’m asking questions. I want to get it clear in my mind what she’s saying. I have to have it clear in my mind.
BY MR. MARCHAND:
Note my objection, Your Honor.

Appellant characterizes the court’s participation in the examination of the witness as a “recapitulation” or “repetition” of testimony in violation of Louisiana Code of Criminal Procedure Article 772. That article prohibits the court from expressing its opinion or commenting on innocence or guilt. State v. Williams, 375 So.2d 1379 (La.1979). It does not, however, restrain the court in its proper role of clarifying testimony when necessary or desirable. Id.

It is clear from the colloquy that the trial judge was not commenting on the evidence, but merely attempting to clarify the prior testimony and the witness’ response. We do not believe there was any prejudice caused to the defendant, particularly in light of the fact that the witness did not revise her previous answer in response to the court’s clarification of the question. The trial judge’s remarks, therefore, did not constitute an impermissible comment on the evidence. State v. Kelly, 367 So.2d 832 (La.1979).

ASSIGNMENT OF ERROR NUMBER 3

Appellant asserts by this assignment that the 99-year sentence .imposed on him by the trial court is unconstitutionally excessive.

The Louisiana Constitution of 1974 prohibits the imposition of excessive punishment. (Art. 1, Section 20). In State v. Sepulvado, 367 So.2d 762 (La.1979) the Louisiana Supreme Court stated that “the imposition of a sentence, although within the statutory limit, may violate a defendant’s constitutional rights against excessive punishment that is enforceable by this Court on appellate review of his conviction.” With respect to the appropriate standards for that review, the court further stated that:

“.. The statutory criteria legislatively provided by La.C.Cr.P. Art. 894.1 (1977), which are similar to those evolved by courts in other American jurisdictions with a constitutional or statutory duty to review excessiveness, provide appropriate criteria by which to measure whether a sentence within statutory limits is nevertheless excessive, either by reason of its length or because it specifies confinement rather than less onerous sentencing alternatives.” Sepulvado, at 769.

The trial court must articulate specific reasons for a sentence which is “apparently severe” in relation to the particular offender and the actual offense. Sepulvado, supra. While the trial court need not articulate every aggravating and mitigating circumstance presented in Article 894.1, the record must reflect that it considered these guidelines in particularizing the sentence to the defendant. State v. Kersey, 406 So.2d 555 (La.1981); State v. Vaughn, 378 So.2d 905 (La.1979).

While the sentence imposed on Roberson does not exceed the maximum of 99 years allowed under LSA-R.S. 14:64, because the sentence is “apparently severe” we have reviewed the sentence for exces-siveness and have reviewed the record to determine whether the trial court complied with Article 894.1.

Our review of the transcript from the sentencing hearing indicates that the trial court particularized the sentence to this defendant under the guidelines of Article 894.1. The court considered the seriousness of the offense and the defendant’s previous criminal record, and noted that there was an undue risk that the defendant would commit another crime if given a lighter sentence.

With respect to the question of whether this particular sentence is excessive, the Louisiana Supreme Court has recognized that a punishment is unconstitutionally excessive if it (1) makes no measurable contribution to accepted goals of punishment and hence is nothing more than the purposeless and needless imposition of pain and suffering; or (2) is grossly out of proportion to the severity of the crime. State v. Telsee, 425 So.2d 1251 (La.1983).

The initial elements to be analyzed in determining whether the punishment is constitutionally disproportionate are the nature of the offense and the offender. State v. Telsee, supra. Roberson pointed a pistol at eight employees of the New Orleans Country Club, demanded money and then ordered them into a vault. Several of the victims testified that they feared for their life and at least one suffered traumatic emotional shock as a result. Additionally, the defendant’s juvenile and adult criminal records indicate that he is extremely dangerous and, as the trial judge noted, would probably become a recidivist if released.

The trial judge who has complied with Article 894.1 is afforded broad discretion when imposing a sentence within the statutory limits, and such sentence should not be set aside as excessive absent manifest abuse of discretion. State v. Trahan, 425 So.2d 1222 (La.1983). Although this sentence is severe, the trial judge did not abuse his broad discretion.

This assignment of error is without merit.

The defendant’s conviction and sentence are affirmed.

AFFIRMED.


author: BYRNES, Judge.

text:
    Albert R. MOAK v. BITUMINOUS CASUALTY CORPORATION, et al.
    No. CA 0834.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 9, 1983.
    Rehearing Denied Feb. 22, 1984.
    Graffagnino, Perez & Roberts, Wayne H. Scheurmann, Charles Ferrara, Metairie, for plaintiff-appellant.
    Turner, Young & Hebbler, Emile L. Turner, Jr., New Orleans, for defendants-appellees.

      Before BYRNES, GARRISON and AUGUSTINE, JJ.
   BYRNES, Judge.

This is a personal injury action. Albert Moak, plaintiff-appellant, was injured when he slipped and fell on steps which were constructed by Howco Builders Inc. The fall occurred while he was employed by Spector Motor Freight Systems, Inc. [Spec-tor]. As Moak was leaving a foreman’s shack, in Spector’s freight terminal, the stairs gave way and he fell to the ground, injuring his back. He filed suit in Civil District Court, Orleans Parish, against William Breene and Russell Easley as executive officers of Spector; H.O. Wagner, H.O.W. Builders, and/or HOWCO Portable and Utilities Building Corp., d/b/a HOW-CO Builders Inc. [“HOWCO”]; and Bituminous Fire and Marine Insurance Co. [“Bituminous”].

Moak entered into a compromise settlement with HOWCO and Bituminous in the amount of $27,500.00, dismissing them from the suit. Prior to trial the remaining defendants, Breene and Easley, filed motions for summary judgment, seeking dismissal of plaintiffs claims on the grounds that they were not employed by Spector at the time of the accident. The trial court found that there was a genuine issue of material fact regarding Breene’s motion and denied it. However, Easley’s motion was granted and he was dismissed as a defendant. Moak appeals Easley’s dismissal.

La.C.C.P. Article 966 states in pertinent part:

The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.

It is well settled that if there is any doubt as to whether genuine issues of material fact exist, summary judgment should be denied. Vascocu v. Singletary, 404 So.2d 301 (La.App. 3rd Cir.1981) writ denied, 409 So.2d 676 (La.1981). Moreover, “on review, this court must view the facts as recited by plaintiff in the light most favorable to him in his opposition to the Motion for Summary Judgment.” Robinson v. Estate of Haynes, 433 So.2d 294, 297 (La.App. 1st Cir.1983).

Moak contends that the trial court erred in granting Easley’s motion for summary judgment. Easley argues that, because he was not employed by Spector at the time of the injury, he cannot be held personally liable for its occurrence. He further contends that when he was employed by Spec-tor he was not responsible for the installation or manufacture of the steps which caused the injury.

To impose executive officer liability on an individual it is essential that a principal-agent or employer-employee relationship be established. Without such a relationship there is no basis for the imposition of such liability. See Canter v. Koehring Co., 283 So.2d 716 (La.1973).

In the case at bar the evidence establishes that Easley terminated his employment with Spector in May of 1968, seven months prior to Moak’s injury. Thus it appears that there was no employer-employee relationship between Easley and Spector at the time of Moak’s accident. Moreover, there is no evidence to show that Easley had any direct responsibility for the original construction or installation of the defective steps.

Viewing these facts in the light most favorable to the plaintiff it is clear that no genuine issue of material fact existed in this case. Easley was not an employee or an executive officer of Spector when appellant’s accident occurred. The judgment of the trial court maintaining appellee’s motion for summary judgment is affirmed.

All costs of this appeal are to be borne by appellant.

AFFIRMED.


author: CIACCIO, Judge. REDMANN, Chief Judge,

text:
    Bobby GRANGER and Joyce Ruth v. J. Melton GARRETT, Louisiana State Racing Commission, et al.
    No. CA 0905.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 9, 1983.
    William J. Guste, Jr., Atty. Gen., Robert A. Barnett, Staff Atty., John E. Jackson, Jr., Asst. Atty. Gen. and Atty. for the Louisiana State Racing Com’n, New Orleans, for defendants-appellants.
    J. Minos Simon, Ltd., Lafayette, for ap-pellees.
    Before REDMANN, CIACCIO and WILLIAMS, JJ.
   CIACCIO, Judge.

Defendants appeal from the judgment of the district court reversing a decision of the Louisiana State Racing Commission. We affirm.

On July 16, 1981, the Stewards at Evangeline Downs issued ruling No. 37, concerning the racehorse, Wild Wing Fighter, and ruling No. 38, concerning the racehorse Mistyano, which horses were owned by Joyce Ruth and trained by Bobby Gran-ger. The Stewards disqualified Wild Wing Fighter as the winner of the third race at Evangeline Downs on June 27, 1981 and redistributed the purse monies of that race, after finding that a urine sample taken from the horse proved positive for the drug “Prednisone.” The Stewards also disqualified Mistyano as the winner of the fifth race at Evangeline Downs on June 28, 1981 and redistributed the purse monies of that race, after finding that a urine sample taken from the horse proved positive for the drug “Prednisone”. Additionally, the trainer was referred to the Louisiana State Racing Commission for whatever action they deemed necessary.

The Louisiana State Racing Commission conducted a hearing on these matters on November 19, 1981. The Commission concluded, in Ruling No. 37, that the trainer violated LAC 11-6:53.15 of the Rules of Racing. They affirmed the ruling of the Stewards and further ordered the trainer to be suspended for thirty (30) days beginning December 1, 1981 and to be denied all privileges of race tracks under the jurisdiction of the Commission during the period of his suspension. The Commission concluded, in Ruling No. 38, that the trainer had violated 11-6.53.15 of the Rules of Racing and imputed knowledge of this violation upon the owner “pursuant to the close relationship that an owner and trainer have as recognized by the Rules of Racing as well as the practice in the racing industry.” The Commission affirmed the ruling of the Stewards and further ordered an additional fifteen (15) day suspension of the trainer for this violation.

After filing a petition for review with the district court, the plaintiff was granted a motion to remand the case to the Louisiana State Racing Commission. The purpose of the remand was to take the testimony of Dr. Paul Hyde, a biochemist, regarding the validity and the conclusive effects of the laboratory testing procedures utilized by the Commission.

Dr. Hyde, on June 24, 1982, testified that the Mass Spectrometer is a testing procedure which constitutes the final concrete evidence of the presence of a particular chemical compound, (tr 334) Additionally, Dr. Hyde testified that he “would not call a Prednisone or Prednisolone without the Mass Spectrometer].” (tr. 334).

At the conclusion of Dr. Hyde’s testimony, the Commission voted unanimously to reaffirm its original decisions.

On March 21, 1983 the district court issued a judgment on the defendant’s petition for judicial review. The judgment reversed the decision of the Louisiana State Racing Commission, on evidentiary grounds.

We affirm the judgment of the district court, without concurring in its reasons for judgment, and on different grounds.

The standard for review of a case such as this was discussed in the recent decision by this Court in Hanson v. Louisiana State Racing Commission, 436 So.2d 1308 at 1309 (La.App., 4th Cir., 1983):

When one is aggrieved by a final decision in an adjudication proceeding, he is entitled to judicial review under the Administrative Procedure Act. R.S. 49:964(A) See: Buras v. Board of Trustees of Police Fund of New Orleans [367 So.2d 849 (La.1979) ], supra. The standard for the review, of evidence in such cases is set forth in Allen v. LaSalle Parish School Board, 341 So.2d 73 at 75 (La.App., 3rd Cir., 1977):
The jurisprudence of our state is abundantly clear that where an administrative agency or hearing body is the trier of fact the courts will not review the evidence before such body except for the following limited purposes: (1) to determine if the hearing was conducted in accordance with the authority and formalities of the statute; (2) to determine whether or not the fact findings of the body were supported by substantial evidence; and, (3) whether or not the hearing body’s conclusions from these factual findings were arbitrary or constituted an abuse of the hearing body’s discretion. Stewart v. East Baton Rouge Parish School Board, 251 So.2d 487 (La.App. 1st Cir.1971); Moffett v. Calcasieu Parish School Board, 179 So.2d 537 (La.App. 3rd Cir.1965); Barber v. Lake Charles Pipe and Supply Company, 148 So.2d 326 (La.App. 3rd Cir.1962).
The reasonable discretion of the administrative body will not be set aside absent an abuse of discretion. Cannatella v. City Civil Service Commission of New Orleans, 381 So.2d 1278 (La.App., 4th Cir., 1980) writ den. 384 So.2d 793 [La.1980]. The issue of credibility of witnesses is a matter addressed to the Commission and not for the court. Jacomet v. St. Landry School Board, 386 So.2d 1056 (La.App., 3rd Cir., 1980) writ den. 393 So.2d 745 [La.1980]. However, the courts have the ultimate duty to determine whether the findings of the administrative body are supported by sufficient evidence. Jacomet v. St. Landry School Board, supra.

After the petition for judicial review was filed, plaintiffs learned that the Louisiana State Racing Commission declined to discipline two other trainers whose horses were alleged to have shown evidence of Predni-sone in urine samples. Both cases were dismissed because of the testimony of Dr. Paul Hyde, a biochemist who was on the staff of the LSU School of Medicine, specializing in equine chemistry, and who had performed personal services for the Racing Commission on other occasions.

On remand, in this case, Dr. Hyde again testified that the presence of Prednisone could only be accurately assessed by the use of Mass Spectrometry. He had earlier testified that the Commission did not own and/or utilize such an investigative piece of equipment but relied on Thin Layer Chromatography, which Dr. Hyde described as inadequate.

The record reflects that the Commission acknowledged that this identical testimony, which had cast doubt on the validity of the findings of the State laboratory, was the basis for the action of the Commission in reversing the Stewards’ findings in the two other Prednisone cases pending before it, namely Sálicos and Brasseaux, both of which cases were dismissed by the Commission and the prior disciplinary action of the Stewards was vacated.

At the conclusion of Dr. Hyde’s testimony plaintiffs’ attorney moved for the dismissal of the charges against his clients citing the earlier testimony of Dr. Hyde, the identity of factual circumstances and the prior action of the Commission (Tr. p. 348), but the Commission refused to dismiss the charges against plaintiffs and reaffirmed the imposition of the penalties decreed in the original hearing.

We can find no factors which would distinguish this case from the two other Pred-nisone cases dismissed by the Commission. In all three cases the Commission’s chemist failed to use a Mass Spectrometer to determine the existence of the drug, Prednisone, and the Commission’s own expert, Dr. Hyde, testified that he would not confirm the existence of the drug without the use of this technique. Since the Commission apparently concluded in the Sálicos and Brasseaux cases that the laboratory tests run by the State Chemist were insufficient to prove the existence of Prednisone and, thus, that the charges in those two cases should be dismissed, for the Commission in this case to hold otherwise would constitute a denial of equal protection of the law and such action would be arbitrary and discriminatory and an abuse of its discretion, in violation of Article 1, Section 3 of the Louisiana Constitution of 1974 and the Fourteenth Amendment of the United States Constitution.

Under both the Fourteenth Amendment of the United States Constitution and Article 1, Section 3 of the Louisiana Constitution of 1974, no person can be denied the equal protection of the law. And, the right to equal protection applies to every kind of state action, whether by law or the action or rules of an administrative agency. Spears v. Department of Corrections, 402 So.2d 203 (La.App., 1st Cir., 1981).

Because we decide this case on this constitutional ground, we do not address the other procedural and evidentiary issues urged by plaintiffs in their appeal.

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

AFFIRMED.

REDMANN, C.J., dissents with written reasons.

REDMANN, Chief Judge,

dissenting in part.

That the racing commission (charged by law with “forceful and honest statewide control of horse racing,” La.R.S. 4:141) reversed two other rulings by the stewards because prednisone was not confirmed by mass spectrometry (if that be the case) does not justify the courts’ reversing the suspension as to Mistyano, where predniso-lone was verified by mass spectrometry and the expert testimony is uncontradicted that prednisone and prednisolone are each convertible into the other by natural processes in the horse’s urine, and neither drug is a permissible drug. This writer would therefore dissent as to Mistyano, but could concur as to Wild Wing Fighter on the basis that counsel for the commission stated, in effect, that the commission had indeed ruled, in the two eases reversing the stewards, that prednisone had to be confirmed by mass spectrometry. There is no testimony of mass spectrometry of a split sample of Wild Wing Fighter’s urine.

Although appellees’ other arguments would require discussion in a majority opinion reversing the trial judge, this dissent need only note that it would disagree with those arguments.

      . LAC 11-6:53.15 provides:
      "53.15 When a report is received from the chemical analysis of blood, saliva, urine, or other samples taken from a horse indicate the presence of a forbidden narcotic, stimulant, depressant, or analgesic, local anesthetic or drugs of any description, not permitted by LAC 11-6:54, this shall be taken as prima facie evidence that such has been administered to the horse. Such shall also be taken as prima facie evidence that the owner, and/or trainer, and/or groom has been negligent in handling of the horse. At the time of these races, LAC 11-6:54 only permitted the use of bleeder medication drugs.

      . One found responsible for violating LAC 11-6:54 shall be subject to the provisions of 11-6:53.19:
      The trainer of the horse may, after a hearing of the stewards, be suspended or ruled off, if the stewards conclude that the drug contained in the sample could have produced analgesia in, stimulated, or depressed the horse, or could have masked or screened a drug, not permitted by LAC 11-6:54, that could have produced analgesia in, stimulated or depressed the horse. The stable foreman, groom, and any other person shown to have had the care or attendance of the horse may be suspended or ruled off. The owner or owners of a horse so found to have received such portion of the purse or sweepstakes and any trophy in such race, and the same shall be distributed as in the case of a disqualification.


author: DUFRESNE, Judge.

text:
    In re The infant, Theresa Nichol MURRAY.
    No. 83-CA-514.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 10, 1984.
    Rehearing Denied Feb. 17, 1984.

      Olden C. Toups, Jr., New Orleans, for plaintiff-appellant.
    R. Gordon Logue, Jr., Kenner, for defendant.
    Before BOUTALL, CURRAULT and DU-FRESNE, JJ.
   DUFRESNE, Judge.

This is an appeal by Donald K. Murray, petitioner, from an adverse judgment in a Habeas Corpus proceeding brought by him against Jeffrey and Mary Brown, to obtain custody of the infant, Charisse Nichole Murray, whom he claims is his natural child. While we agree with the trial court that James Ernest Vinet, Jr., the husband of the child’s mother at the time of the infant’s birth, is her legal father, we nonetheless vacate the judgment in so far as it grants custody to Vinet, and order that custody be given to Jeffrey and Mary Brown, subject to visitation rights by Murray.

The two issues raised by appellant here are:

1.) Whether the trial court committed legal error in concluding that Vinet is the child’s legitimate father, and,

2.) Whether the court’s factual determination that the best interest of the child is served by granting custody to Vinet is manifestly erroneous.

The facts giving rise to this litigation are these. James Vinet and Charisse Claverie were married in 1976, and were still legally married on July 9, 1982, the day Charisse Claverie died. However, for about a year and a half before her death, Charisse had been living with Donald Murray, and on May 17, 1982, she gave birth to the child who is the subject of this litigation. On the representation of Charisse, the hospital listed Murray as the child’s father, but Murray did not sign this birth certificate.

For some two weeks before and two weeks after the child’s birth, Charisse and Murray lived with Murray’s sister, Mary Brown, and her husband Jeffrey, in La-Place. Later they moved to Denham Springs, but on July 9th, the day of Char-isse’s death, the three of them were again temporarily staying with the Browns. After the death of the mother, Murray and the baby remained at the Browns until July 26th, when Murray and the child moved in with Selma Dufresne, an aunt of Charisse Claverie, in Gretna. On August 5th, Mary Brown got permission from Murray to bring the child to her home in LaPlace for the weekend. When she refused to return the child to Murray on the following Monday, he filed this petition of Habeas Corpus to regain custody of the child.

At the hearing on this matter, Vinet, Charisse’s husband, appeared and testified that he and his wife had spent several days together in August or September, 1981, some 9 months prior to the child’s birth, and had had sexual relations at that time. He contended further that he was the child’s father, and that because he was then unable to care for the child, he wished her to remain with the Browns. He further indicated that he would probably consent to her adoption by this family, were he granted custody.

At the conclusion of the hearing, the court ordered that blood tests be performed on Murray, Vinet and the child, and all parties stipulated that the results of those tests were to be admitted into evidence without testimony by the expert who conducted them. The expert’s conclusions were that as to Vinet, “paternity is excluded,” and as to Murray, “paternity cannot be excluded.”

On these facts, the trial court concluded that James Vinet is the legitimate father of the child, and that Donald Murray is probably her biological father. He further found that the best interest of the infant would be served by granting custody to Vinet, and visitation rights to Murray, and so ordered. Murray now brings this appeal.

Murray’s first allegation is that the trial court erred in concluding that Vinet is the legitimate father of the child. The thrust of his argument is that the evidence adduced at trial was sufficient both to rebut the presumption of Vinet’s paternity established by La.Civ.Code Art. 184, and to establish Murray’s paternity. While there is force in this argument, we nonetheless reject it for the reasons given by the trial judge. Although La.Civil Code, Art. 186, which states, “The husband of the mother is not presumed to be the father of the child if another man is presumed to be the father” purports to open the door to negate the presumption found in La.Civil Code Art. 184. The code does not provide the necessary method or mechanism for a paramour to timely disavow paternity.

These amendments which were enacted by the legislature in 1976 have the effect of making the presumption of paternity which had previously been irrebuttable in most instances now rebuttable.

Our Supreme Court in Mock v. Mock, 411 So.2d 1068 (La.1982) stated Act 430 of 1976 accomplished the legislative objective of allowing the husband to disavow a child born to his wife where it is clear that he is not the father while retaining the public policy against bastardizing the innocent child.

It is the opinion of this court that the legislature did not intend to allow the bastardization of innocent children, but only modified the formally irrebuttable presumption of Article 184. These Articles, namely 184 thru 190 still only provide the mechanism for the husband or his heir to disavow.

In similar regard, Article 209 provides the necessary mechanism and time table in which a child may prove his filiation.

The action to disavow, even in view of the amendments by Act 430 of 1976 seems to still be “peculiar to the father and can be exercised only by him, or his heirs, within a given time, and in certain cases” as espoused in Feazel v. Feazel, 222 La. 113, 62 So.2d 119 (1952) and reaffirmed in Taylor v. Taylor, 295 So.2d 494 (La.App. 3rd Cir.1974).

We do not agree that since the 1976 amendment a paramour or anyone other than the husband of the wife can bring an action to disavow. We hold that the action is still personal to the husband and no one except him or his heirs can file an action to disavow. We therefore need not address here, as Murray urges, whether on the facts before us Vinet would have prevailed in an action to disavow the child, because that action is not before this court. What is before us is simply an attempt by Murray to assert Vinet’s personal right to rebut the presumption of paternity which as stated above, he cannot do. We therefore affirm the trial court’s determination that Vinet is the child’s legitimate father.

The consequence of this finding is not that it is dispositive of the issue of custody, but rather that Vinet has the paramount right to custody, and may be deprived of that custody only for compelling reasons inimical to the welfare of the child, Wood v. Beard, 290 So.2d 675 (La.1974).

The record discloses that Vinet, by his own admission, is unable to care for the child and further intends to permit the Browns to retain physical custody of her. Under these circumstances, this court finds that the paramount right of Vinet to be awarded custody is far outweighed by the compelling facts that he cannot and does not wish to have custody of the infant. For this reason, the judgment of the trial court awarding Vinet custody is vacated.

This brings us to Murray's second argument which is that the judgment of the trial court awarding custody to Vinet is manifestly erroneous. Because we have already held that the custody award to Vinet was improper, to that extent we agree with appellant. However, the record as a whole clearly indicates to this court that the trial judge ruled as he did because actual physical custody was to remain with the Browns, and he deemed this to be in the best interest of the child. We recognize, of course, that our interpretation of the record on this point, is subject to question, and do not rely on that interpretation in our ruling today. Our ruling is rather based on this ' court’s powers to render judgments on a complete record on appeal.

The issue before us is simply in whose custody will the best interest of this child be served. This is so because we have already determined that Vinet is the legal father of the child, but his paramount right to custody has been overborne by his inability and unwillingness to care for the child. The Browns are admittedly legal strangers to the child, but were in physical custody of her when this action was commenced. Murray, on the other hand has made a judicial admission that he is the natural father of the child, and to that extent he does have a legal relationship to the infant. However, it is this court’s opinion that the legal relationship created by such an acknowledgement does not give rise to the paramount right to custody when the child has a legal parent.

Having so held, we now turn to consideration of the best interest of the child.

The record discloses that the Browns have a stable home environment, two other teen-age children and own their home. Jeffrey Brown is regularly employed, and Mary is clearly a woman of good moral character. Both Browns exhibited a genu-' ine and strong desire to rear the child as their own, and are clearly capable of doing so in a loving and competent manner.

Donald Murray, on the other hand, is a single disabled veteran who suffers from amnesia, and partial paralysis. While he receives a substantial pension, he has had no permanent residence within the last year. Mary Brown, his sister, testified that she knows him to be a user of drugs and that Charisse Claverie in fact died of an overdose of drugs. She further testified that Murray’s paralysis caused him difficulty in holding or bathing the child.

On these facts, this court is firmly convinced that the best interest of the infant, Charisse Nichole Murray, will be served by granting legal custody of her to Jeffrey and Mary Brown, and so hold. However, as Murray is in all probability the biological father of the child, has a genuine paternal interest in and affection for her, and has judicially acknowledged her, we affirm the trial court’s award of visitation rights to him, Taylor v. Taylor, supra.

For the foregoing reasons, the judgment of the trial court that James Ernest Vinet, Jr. is the legal father of Charisse Nichole Murray is affirmed. The award of custody to Vinet is vacated, and custody of Char-isse Nichole Murray is hereby awarded to Jeffrey and Mary Brown, subject to visitation rights of Donald K. Murray, as specified in the order of the trial court.

AFFIRMED IN PART REVERSED IN PART AND RENDERED.


author: REDMANN, Chief Judge.

text:
    Maria COLOGNA v. Dr. Robert M. BEAZLEY.
    No. CA-0908.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 12, 1984.
    Rehearing Denied Feb. 22, 1984.
    Writ Denied April 13, 1984.
    Floyd J. Reed, Reed & Reed, New Orleans, for plaintiff.
    Guy J. D’Antonio, D’Antonio & Nelson, New Orleans, for defendant.
    Before REDMANN, C.J., and CIACCIO and WILLIAMS, JJ.
   REDMANN, Chief Judge.

Plaintiff appeals from the dismissal of her action for damages against an oncological surgeon who installed a “Saratoga sump” drain in her abdominal cavity to drain an abscess. Ten days after its installation, the drain began to drain fecal matter. The explanation by defendant, corroborated by stipulated testimony from another surgical oncologist, is that pressure necrosis from the dram’s impingement caused an opening in the colon, and that such an occurrence is a recognized complication of the surgery.

The trial judge reasoned “Plainly the perforation of plaintiff’s colon was a normal risk of the procedure. There is no evidence of negligence and plaintiff’s action will be dismissed.”

Plaintiff argues that she effectively proved negligence because the colon was “not directly concerned with the surgery” and therefore an inference of negligence is established under the rule of res ipsa loqui-tur, citing McCann v. Baton Rouge Gen. Hosp., 276 So.2d 259 (La.1973).

In McCann, during the surgery itself the patient “received injuries to a part of the body [a leg] not involved in the surgery [upon an arm].” Id. at 262. In our case, on the other hand, the abscess that had to be drained abutted the colon, and to drain the abscess required placing the drain immediately adjacent to the colon. Thus, although the surgery was not performed upon the colon, proper performance of the surgery did “involve” the colon in the sense that it was inescapably in the immediate area of the placement of the drain. The application of res ipsa loquitur “is normally determined at the conclusion of the trial. The rule applies when the facts shown suggest the negligence of the defendant as the most plausible explanation of the injury.” McCann, id. at 261. At the conclusion of our trial — unlike that of McCann, where there was no other plausible explanation— the most plausible explanation of plaintiff’s injury, as found by the trial judge, was that the mere pressure of the drain lying against the colon caused necrosis (death) of its impinged tissue and the resulting hole in the colon, and that this pressure necrosis is not a result of negligence in installing the drain but one of the complications that can result without negligence (as the stipulated testimony of the other oncological surgeon established) on the part of the surgeon who installs the drain.

We cannot say that the trial judge erred in refusing to apply the rule of res ipsa loquitur or in holding that there was no evidence of negligence.

Affirmed.


author: GULOTTA, Judge.

text:
    STATE of Louisiana v. Calvin L. JONES.
    No. KA-1152.
    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., William R. Campbell, Jr., Asst. Dist. Atty., New Orleans, for appellee.
    Dwight Doskey, Morris Hyman, Orleans Indigent Defender Program, New Orleans, for appellant.
    Before GULOTTA, REDMANN and AUGUSTINE, JJ.
   GULOTTA, Judge.

Defendant appeals his conviction and sentence of five years at hard labor, without benefit of probation, parole, or suspension of sentence, for violation of LSA-R.S. 14:95.1, illegally possessing a firearm after having previously been convicted of a felony.

In his sole assignment of error, defendant’s appellate counsel requests this court to review the record for errors patent and to reverse defendant’s conviction and sentence.

Strangely, the only error patent in the record is the trial judge’s failure to impose a fine in addition to. the jail sentence imposed as required by LSA-R.S. 14:95.1.

If we were to remand the matter to the trial court for resentencing in accordance with the statute, the remand would be to the defendant’s detriment. The State, however, seeks only an affirmation of the verdict and sentence. Because the defendant alone has appealed, however, we review only those patent errors favorable to him, to avoid “providing a chilling effect on defendant’s exercise of his right to appeal.” State v. Napoli, 437 So.2d 868 (La.1983). Accordingly, we decline to remand this matter to the trial court for resentencing, despite recognition of the error.

Our examination of the remaining document’s in the record does not disclose additional errors patent. Upon review of the 35 page transcript of the jury trial, in accordance with State v. Raymo, 419 So.2d 858 (La.1982), we conclude there was sufficient evidence upon which a rational trier of fact could find the defendant guilty beyond a reasonable doubt.

In supplementary briefs filed in proper person, defendant has raised a number of additional arguments.

The first is defendant’s complaint that the trial judge erroneously found probable cause and denied him a “full and fair” preliminary hearing. This complaint lacks merit. Because defendant failed to assert this error before trial, he cannot now urge on appeal after conviction that he was erroneously denied a preliminary hearing. See State v. Brent, 347 So.2d 1112 (La.1977).

Defendant also claims that his Fifth Amendment rights were violated during trial when he was questioned about his prior felony conviction while sitting at the defense table in the presence of the jury. The transcript, however, shows that the State and defendant’s trial counsel stipulated that defendant was the same person convicted of a burglary as stated in the bill of information. We find no merit, therefore, to this argument.

Defendant further contends that the averment of his prior conviction in the same count as the accusation of carrying a concealed weapon improperly influenced the jury and violated the double jeopardy clause. We disagree. Because the defendant’s prior felony conviction is an essential element of the crime defined in LSA-R.S. 14:95.1, the State properly alleged the previous conviction in the bill of information charging defendant with this offense. State v. Marrero, 363 So.2d 494 (La.1978).

Defendant also attacks the constitutionality of LSA-R.S. 15:571.11(D), which authorizes the use of fines and forfeitures imposed in criminal cases in Orleans Parish to defray the expenses of the criminal court and the district attorney’s office. According to defendant, the statute creates a conflict of interest in the district attorney’s office and promotes overzealous prosecution. Because no fine was imposed in defendant’s case, however, he lacks standing to attack the statute.

Finally, defendant raises a number of objections concerning ineffective assistance of counsel on both the trial and appellate levels. We do not consider this argument, however, since it is properly the subject of an application for post-conviction relief to be asserted in the trial court. LSA-C.Cr.P. Art. 926; State v. Boatright, 406 So.2d 163 (La.1981); State v. Lewis, 372 So.2d 1192 (La.1979).

Accordingly, the conviction and sentence are affirmed.

AFFIRMED.

      . LSA-R.S. 14:95.1(B) provides as follows:
      "Whosoever is found guilty of violating the provisions of this section shall be imprisoned at hard labor for not less than three nor more than ten years without the benefit of probation, parole, or suspension of sentence and be fined not less than one thousand dollars nor more than five thousand dollars [emphasis ours]."


author: SCHOTT, Judge.

text:
    Henry HOLMES and Juanita Holmes v. MARSH BUGGIES, INC. et al.
    No. CA 0943.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 12, 1984.
    Rehearing Denied Feb. 22, 1984.

    Writ Denied April 13, 1984.

      Henry P. Julien, Jr., Atty. at Law, New Orleans, for plaintiffs-appellants.
    Paul Andersson, Hammett, Leake & Hammett, New Orleans, for defendants-ap-pellees.
    Before SCHOTT, BARRY and WARD, JJ.

       Barry, J. was of the opinion the rehearing should be granted as to payment of costs only.

   SCHOTT, Judge.

Plaintiffs, Henry and Juanita Holmes, have appealed from a dismissal of their suit pursuant to a jury verdict. The case arose out of an automobile accident which occurred on January 22, 1980, on the Industrial Canal Bridge at St. Claude Avenue in New Orleans. The automobile owned and driven by Henry and occupied by his wife, Juanita, had come to a stop in traffic on the bridge when it was very lightly struck in the rear by a pick up truck operated by defendant, Elbert Lewis, owned by defendant, Marsh Buggies, Inc., and insured by defendant, Holland America Insurance Company. Liability was stipulated by the defendants, and the case was submitted to the jury on the interrogatory: “Do you find that the negligence of the defendant, Elbert Lewis, was the proximate cause of the injuries sustained by the plaintiff, Juanita Holmes?” The jury answered “No”. The only issue is whether the jury committed manifest error in reaching its verdict.

Henry Holmes testified as follows: He got out of his vehicle to inspect for damage, and, by coincidence, an ambulance of the New Orleans Police Department came to the scene. He was friendly with the emergency technicians and had worked as a paramedic with one of them for several years. His wife said she felt nauseated and dizzy and had neck pain and a headache so he asked the technicians to check her and he told his wife she should be taken to the hospital. In the past he had made three separate claims from automobile accidents and settled them all out of court.

Juanita Holmes testified as follows: The impact of the accident was a “forceful crash” and caused her head to be thrown backward, forward, and backward against the headrest. When the paramedic approached her she was nauseated and dizzy and was taken to Charity Hospital in the ambulance. The emergency room physician who examined her said she would be sore, prescribed pain medication (Tylenol) and heat applications, and sent her home. At home she took hot baths and tylenol and stayed in bed. Three days later she went to her regular physician, Dr. Harold Shelby, a general physician and gastroenterologist. She complained about her neck, low back and leg, and he prescribed medication. She did not return to him for these problems, although she did see him the following month for stomach and bowel problems. Instead, on January 29, she went to Dr. Stuart Phillips, an orthopedist, with complaints of pain in her neck, arm, lower back and leg. He prescribed Demerol, a home traction kit, heat treatment, and bed rest. She used a cervical collar which she had from a previous accident, but she did not take the medicine because it irritated her stomach. Her low back pain subsided after a relatively short period of time, but her neck pain continued even to the time of the trial in June, 1982, when she continued to have flareups. She denied having any pain prior to the accident except for some neck pain which had resulted from an accident five years previously and which cleared up in two months. She had already been nervous when riding in automobiles as a result of this previous accident as well as one she was involved in many years previously but now she was more nervous when riding. She had settled a claim arising out of her last accident.

The report from Charity Hospital concerning Mrs. Holmes’ emergency visit following the accident states that she was complaining of headache and "vague” pain in the left lumbar area; that she “feels ‘tired’ across her back.” But the report flatly states “No neck pain.” The recorded impression is mild muscle strain with the patient ambulatory and in good condition. The diagnosis was mild muscle strain and tension headache.

Dr. Shelby testified as follows: He had treated Mrs. Holmes as a patient three times between November, 1977 and November, 1979, for an ulcer and a bowel problem. She came to him on January 25, 1980, complaining of some pain in her head and neck. He found spasm in the neck muscles and prescribed medication and heat treatments. She did not return to him until November with complaints of abdominal, neck and arm pain. He found no objective symptoms and nothing organically wrong with her on this visit or on subsequent visits she made in January, 1981, and one week prior to trial. However, he thought her symptoms were produced by psychological anxiety from the accident.

Dr. Phillips testified as follows: When he first examined Mrs. Holmes on January 29, 1980, he found tightness in her neck and limitation of motion in her back. He diagnosed cervical strain and ruptured lumbar disc. He prescribed medication and bed rest. When she returned on February 5, he discontinued the bed rest prescription. When she returned on February 21, he felt she was well enough to return to work. When she returned on May 26, she still had cervical spasm but the lumbar examination was negative. He thought she had a chronic cervical strain. When she returned on August 5, she still had spasm and limited motion in the neck. By September 16 she was getting better but still had intermittent symptoms and by December 2 she was still complaining of pain. Throughout this period she was on medication and home traction to relieve cervical spasm. When she returned on January 13, 1981, she was much better and on March 10, 1981, he discharged her although she continued with occasional pain. He examined her one week before trial and found that she still had tightness and spasm. He thought her neck injury was the result of the accident and that she was left with a five per cent impairment of body function.

Dr. James H. Brown, a psychiatrist, examined Mrs. Holmes and, on the basis of what she said, concluded that she had an anxiety state for which she “should receive psychotherapy.

Defendants had Mrs. Holmes examined by two physicians, Dr. Robert L. Apple-baum, a neurosurgeon, who examined her on July 9, 1980, and Dr. Hyman Soboloff, an orthopedist, who examined her on May 8, 1981.

Dr. Applebaum testified as follows: On examination he found a normal range of motion in her neck, but tightness, stiffness, and spasm in the muscles which he attributed to arthritis. X-ray studies revealed “more advanced [arthritic] changes than others” in her age (50) group which explains why she had intermittent neck pain and spasm. It is probable that she would have had these problems if the accident had not occurred.

Dr. Soboloff testified as follows: When he saw her in May, 1981, she had a full range of motion and no tightness or spasm. He took X-rays and compared them to Dr. Applebaum’s taken in July, 1980, and Dr. Phillips’ taken in January, 1980, and he found that there were no changes. He concluded that she had pre-existing arthritis which fully explained her periodic complaints of pain and stiff neck.

Plaintiffs contend that the jury erred manifestly in failing to compensate them for damages related to Mrs, Holmes’ back, neck, and anxiety state. They argue that she was well before the accident and has suffered since the accident so that they carried their burden of proof. However, in the final analysis, her proof depends almost entirely upon acceptance of her own testimony as credible.

Beginning with her neck problem which was by far the most serious, she testified that her neck began to hurt right after the accident, and her husband testified that she said so at the time. Yet the Charity Hospital report states no neck pain. When confronted by this she said the report was erroneous. In order to recover ground lost from this circumstance she called as a rebuttal witnesses the hospital record clerk who testified that Mrs. Holmes had, indeed, complained about her neck. However, it developed that this clerk had known Mrs. Holmes for thirteen years and could not explain why the doctor recorded no neck pain.

When Dr. Phillips’ diagnosis of chronic cervical strain is analyzed it depends for its accuracy on the truthfulness of Mrs. Holmes that she just began to suffer after the accident and the assumption that her muscle spasm was a post accident development. However, Drs. Applebaum and So-boloff were of the firm opinion that someone with such arthritis as Mrs. Holmes had, probably had these symptoms before the accident.

As to the psychological injury, Mrs. Holmes said she was nervous about riding in cars before the accident but was more so afterwards. The psychiatrist’s opinion that she suffered some anxiety state from the accident was based entirely on what she told him. Therefore, her claim was based entirely on her own credibility.

Finally, there was never any objective symptom of lumbar disability. Dr. Phillips found none and the Charity Hospital report speaks of “vague” pain and how she “feels ‘tired’ across her back,” again nothing objective.

In totally rejecting her claim the jury had to conclude that Mrs. Holmes had neck problems before this accident and attempted to place the blame for them on defendants. They may have concluded that any psychological difficulty she had was there before the accident or they may have concluded that she concocted this psychological difficulty as well as the back pain, or they may have believed that she hurt her back before the accident and tried to pin the responsibility on defendants. In any event, the jury saw and heard the Holmes and disbelieved them. It is not the function of an appellate court to substitute its own credibility determination for the jury’s. Williams v. Allstate Ins. Co., 367 So.2d 1318 (La.App. 4th Cir.1979).

Accordingly, the judgment appealed from is affirmed.

AFFIRMED.


author: KLEES, Judge.

text:
    Marlin W. STURM v. ZELDEN AND ZELDEN, Frederick A. Wild, III, National Union Fire Insurance Company.
    No. CA-0984.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 12, 1984.
    Santo A. Dileo, New Orleans, for plaintiff-appellant Marlin W. Sturm.
    W. Paul Andersson, New Orleans, for defendants-appellees Zelden and Zelden and Nat. Union Fire Ins. Co.
    Before KLEES, GARRISON and CIAC-CIO, JJ.
   KLEES, Judge.

Marlin W. Sturm, plaintiff-appellant, appeals from a judgment of the trial court maintaining defendants’ exceptions of prescription and no right or cause of action. The basis of plaintiff’s lawsuit was an assertion that defendants failed to include an “as is” waiver of warranty clause in an act of sale that conveyed a piece of real property from Sturm to Mintz & Mintz Realty.

FACTS

The facts in this matter are not disputed. Plaintiff-appellant Sturm was the vendor of certain real estate, which he sold on October 15, 1979 to Mintz & Mintz Realty, by an act of sale passed in the law offices of Zelden and Zelden," defendant-appellee.

Approximately six months later, on February 29, 1980, purchaser sued Sturm for reduction of the sales price, alleging a red-hibitory vice. 1A trial of that suit resulted in a judgment for purchaser, Mintz & Mintz Realty. An appeal was taken by Sturm, and the appellate decision reversed in part, freeing Sturm of all liability. Mintz & Mintz Realty Co. v. Sturm, 419 So.2d 981 (La.App. 4th Cir.1982). The Louisiana Supreme Court denied purchaser’s writ application in December of 1982.

On March 12, 1982, Sturm, while a defendant in the redhibition suit, filed this action against Zelden and Zelden, and their professional malpractice insurer, alleging that Sturm’s exposure in the redhibition suit resulted solely from the notary’s failure to include an “as is” clause in the 1979 act of sale, as provided in the purchase agreement. An exception of prescription was filed by defendants, as well as an exception of no right/cause of action.

The exceptions were taken under advisement by the court, and a judgment rendered on January 11, 1983 maintaining both the prescription and the no right/cause of action exceptions. Fifteen days were granted to amend the petition.

An amended petition was filed on January 26, 1983 by plaintiff, to which defendants renewed their exceptions. After argument, a judgment dismissing plaintiff’s claims was rendered March 17, 1983, from which plaintiff appeals.

Plaintiff filed this devolutive appeal based primarily on two allegations: 1) that prescription did not begin to run until December 10, 1982 when the Louisiana Supreme Court refused writs on the quanti minoris suit or at the very earliest on March 13, 1981 when the trial court’s judgment became executory, or alternatively that the ten year prescriptive period based on a breach of contract, should have been applied in this case instead of the one year prescriptive period for actions in tort, 2) that the failure to include the “as is” clause and plaintiff’s resultant exposure did constitute a right or cause of action. We agree with the judgment of the trial court and affirm.

Actions based on legal malpractice can be either contractual or delictual (or both) in nature. Though the facts in the instant case do not preclude a contractual relationship existing between plaintiff and defendants, they do not support plaintiff’s argument that a ten year prescriptive period should be invoked.

The Louisiana Supreme Court in Sciacca v. Polizzi, 403 So.2d 728 at 730 (La.1981) quoted the following passages from Judge Wisdom’s opinion in Kozan v. Comstock, 270 F.2d 839 (5th Cir.1959) with approval:

“It is the nature of the duty breached that should determine whether the action is in tort or in contract. To determine the duty one must examine the patient-physician relationship. It is true that usually a consensual relationship exists and the physician agrees impliedly to treat the patient in a proper manner. Thus, a malpractice suit is inextricably bound up with the idea of breach of implied contract. However, the patient-physician relationship, and the corresponding duty that is owed, is not one that is completely dependent upon a contract theory. There are instances in which the relationship exists though there is clearly no contractual relationship between the patient and the physician. Thus, the patient may be incapable of contracting or a third person may have contracted with the physician for the treatment of the patient. Even m these instances in which no contract is present the physician still owes a duty to the patient. The duty of due care is imposed by law and is something over and above any contractual duty. Certainly, a physician could not avoid liability for negligent conduct by having contracted not to be liable for negligence. The duty is owed in all cases, and a breach of this duty constitutes a tort. On principle then, we consider a malpractice action as tortious in nature whether the duty grows out of a contractual relation or has no origin in contract. This view that malpractice suits are tortious in nature probably represents the majority view.
We do not mean to say that there can never be a contractual action against a physician. Generally, a physician undertakes only to utilize his best skill and judgment. When he negligently fails to do so he may have committed a tort. However, a physician may, by express contract, agree to effect a cure or warrant, that a particular result will be obtained. In such instances an action in contract may lie against a physician. However, in the absence of a special warranty or contract, a malpractice suit against a physician is an action in tort and is subject to the limitation period for tort actions.”

In Cherokee Restaurant, Inc. v. Pierson, 428 So.2d 995 at 998 (La.App. 1st Cir.1983), this analysis was applied to legal malpractice action:

“Conceptually, the action for legal malpractice is no different than the action for medical malpractice. Both entail a deviation from the accepted standard of care of the profession. Although the attorney-client relationship gives rise to an implied warranty of the attorney to use his best professional skill and judgment, this duty is legal rather than contractual in nature, and a breach of this duty amounts to a tort. See Ramp v. St. Paul Fire and Marine Insurance Company, 263 La. 774, 269 So.2d 239 (1972); Corceller v. Brooks, 347 So.2d 274 (La.App. 4th Cir.1977). Only when an attorney breaches an express warranty of result does an action for breach of contract arise.”

Plaintiff Sturm was not a client of Zelden & Zelden, in fact, Zelden and Zelden represented Mintz & Mintz in their quanti minor-is suit against Sturm. Zelden & Zelden did act as notary for the October 15, 1979 Act of Sale; thus, the argument for the creation of an implied contract between Sturm and Zelden and Zelden can be made. Nonetheless, it stretches the point to suggest that an express warranty resulted.

Louisiana Civil Code, article 3536 provides in pertinent part:

Article 3536. Other actions prescribed by one year
The following actions are also prescribed by one year:
That for injurious words, whether verbal or written, and that for damages caused by animals, or resulting from offenses or quasi offenses.

Plaintiff argues that prescription should not begin to run until the trial court’s judgment could become executory on March 13, 1981 and therefore his March 12, 1982 filing was timely.

Louisiana Civil Code, article 3537 reads in pertinent part:

Art. 3537. Commencement of prescription under Article 3536
The prescription mentioned in the preceding article runs:
With respect to the merchandise injured or not delivered, from the day of the arrival of the vessel, or that on which she ought to have arrived.
And in the other cases from that on which the injurious words, disturbance or damage were sustained.

In Cartwright v. Chrysler Corporation, 255 La. 597, 232 So.2d 285 at 287 (1970), the Louisiana Supreme Court held that:

“... [I]t is not necessary that the party have actual knowledge of the conditions as long as there is ‘constructive notice’. Whatever is notice enough to excite attention and put the owner on his guard and call for inquiry is tantamount to knowledge or notice of everything to which inquiry may lead and such information or knowledge as ought to reasonably put the owner on inquiry is sufficient to start the running of prescription.”

Further, this circuit has recently held in Henderson v. Diamond Datsun, Inc., 413 So.2d 542 at 544 (La.App. 4th Cir.1982) that:

“Prescription does not begin to run until the plaintiff has knowledge of both the tort and resultant damages; until a cause of action has manifested itself with sufficient certainty to be capable of proof in a court of law.”

We conclude that plaintiff became aware of the omission of the “as is” language at least as early as January 29, 1981 (the date of the trial of the quanti minoris suit) and in no case later than the date of the trial court’s judgment in that matter (February 2, 1981).

The filing of the lawsuit for an action in quanti minoris and the trial court’s subsequent judgment was certainly sufficient to put plaintiff on notice of the alleged tort •and its resulting damages. Thus we conclude that the trial court’s action in maintaining defendants’ exception of prescription was correct. Having reached this conclusion we find it unnecessary to discuss plaintiff’s other allegation of error.

Accordingly, for the reasons assigned the judgment of the trial court is affirmed. Costs to be paid by plaintiff-appellant.

AFFIRMED.


author: AUGUSTINE, Judge.

text:
    Emile L. TURNER, Jr. v. Helen Ruth Gubbels TURNER.
    No. CA-0988.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 12, 1984.
    Rehearing Denied Feb. 22, 1984.
    Writ Granted April 23, 1984.
    A.D. Freeman, of Satterlee, Mestayer & Freeman, New Orleans, for defendant-ap-pellee.

      Cabrai& Cabral, Harry R. Cabral, Jr., H. Craig Cabral, Metairie, Thomas M. Young, New Orleans, for plaintiff-appellant.
    Before GARRISON, AUGUSTINE and LOBRANO, JJ.
   AUGUSTINE, Judge.

Emile Turner, the plaintiff-father, appeals from a judgment of joint custody awarding physical custody to each parent individually in alternating years.

This custody dispute involves twin boys, Bret and Bert, who were born on October 9, 1976 to Helen and Emile Turner during their marriage. Helen and Emile were divorced in January of 1980. Since their divorce, several types of custody arrangements have been implemented. The original award of custody, in 1980, was to the mother, but it became necessary to change that award and give custody to the father, Emile, when she became ill.

In February of 1983 Helen filed a rule requesting joint custody pursuant to Article 146 of the Louisiana Civil Code. A judgment was rendered on this matter on March 14, 1983 granting Mrs. Turner’s request for joint custody. Specifically, that judgment gave physical custody to the father during the school year and allowed the mother to have physical custody of the children for three weekends of each month and the summer.

Both Helen and Emile moved for a new trial. On April 11, 1983, an order was signed by the trial judge granting a new trial “reopening the joint custody matter.” As a result of that order, a trial was had on April 14, 1983. On April 27, 1983, the trial court rendered a new judgment in this case. That judgment, which is the basis for this appeal, granted joint custody to the parents in the following manner:

The physical possession, care, custody and control of the twins is to be alternated annually between the two parents. The year shall begin on July 15th and end July 14th the following year, and the first year will start on July 15, 1983, at which time physical custody is to be with the mother, Helen Turner.
The non-custodial parent shall enjoy visitation with the children every weekend except for the first weekend of each calendar month from 6:00 P.M. on Friday until 6:00 P.M. on Sunday.

On appeal, Mr. Turner raises several issues, none of which merit a change in the judgment. Mr. Turner claims, first, that the trial judge erred in rendering a new judgment at the new trial; secondly, that there was no evidentiary basis for the adjudication of joint custody; and finally, that the trial court abused its discretion in awarding alternating annual custody.

Emile Turner’s motion for a new trial was limited to arguments on his requests for two weeks of vacation time with the children in the summer, and that a court ordered restriction be placed on Helen Turner’s visits to the twins at school. Helen Turner’s motion for a new trial was not limited in any manner. The trial judge limited the new trial to “the joint custody matter.” It is well settled that “the granting of a new trial even when limited to reargument, sets aside the original judgment.” Lynch v. Lynch, 422 So.2d 703 at 705 (La.App. 3rd Cir.1982). In addition, “custody judgments unlike other ordinary judgments, are never final in the sense that they are always subject to review and modification by the courts, ...” Hord v. Hord, 407 So.2d 1314, 1316 (La.App. 3rd Cir.1982). Taking into consideration the fact that the first judgment had no legal effect once the new trial was granted, and the broad discretion trial judges have in modifying custody judgments, it is apparent that the trial judge did not commit an error in basing the judgment of April 27th solely on the facts presented at the new trial. The trial judge was well within his discretionary powers in rendering a completely new judgment.

Mr. Turner also raises the issue of whether joint custody is in the best interests of the children. As of the date of the judgment, article 146(C) of the Louisiana Civil Code stated, “There shall be a rebut-table presumption that joint custody is in the best interest of a minor child unless ... (2) The court finds that joint custody would not be in the best interest of the child.” Article 146 was amended by the legislature in 1983. That amendment took effect on August 30, 1983. While the amendment did not change the presumption of article 146, it did clarify the basis for a rebuttal of the presumption in favor of joint custody.

The amended version of Article 146 states:

... (2) The presumption in favor of joint custody may be rebutted by a showing that it is not in the best interest of the child, after consideration of evidence introduced with respect to all of the following factors:
(a) The love, affection, and other emotional ties existing between the parties involved and the child.
(b) The capacity and disposition of the parties involved to give the child love, affection, and guidance and continuation of the education and raising of the child in its religion or creed, if any.
(c) The capacity and disposition of the parties involved to provide the child with food, clothing, medical care, and other material needs.
(d) The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity.
(e) The permanence, as a family unit, of the existing or proposed custodial home or homes.
(f) The moral fitness of the parties involved.
(g) The mental and physical health of the parties involved.
(h) The home, school, and community record of the child.
(i) The reasonable preference of the child, if the court deems the child to be of sufficient age to express preference.
(j) The willingness and ability of each of the parents to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent.
(k) The distance between the respective residences of the parties.
(l) Any other factor considered by the court to be relevant to a particular child custody dispute.

The evidence presented at trial regarding the aforementioned factors requires our af-firmance of the joint custody order.

Of the enumerated factors, testimony presented as to several of them, (i.e., the love and affection between the parents and children; the ability of each parent to raise the children properly — emotionally and physically; the permanence of the father’s and "mother’s homes; the parents’ fitness; and the distance between the mother’s home and the father’s home) does not rebut the presumption of joint custody.

With regard to the stability of environment factor, it has been noted that, “[a] court should consider the prior history of the child’s custody when asked to change custody. Generally, it might not be in the best interest of a child to be regularly moved from parent to parent. But this is a single consideration to be weighed with all other factors relevant to a determination of the best interest of the child.” Bordelon v. Bordelon, 390 So.2d 1325, 1329 (La.1980) (emphasis added).

The trial court heard testimony regarding the mental health of the mother, Helen. That testimony indicated that her condition had been stable for some time.

There was also testimony presented regarding Bert’s school record. That testimony revealed that Bert’s record improved subsequent to the joint custody judgment of March 14, 1983. There was no evidence to indicate that Bert’s progress would not continue.

With regard to “the willingness and ability of each of the parents to facilitate and encourage a close and continuing parent-child relationship between the children and the other parent” — the evidence would seem to indicate that neither parent carried the burden of proving that he or she was better able to facilitate an ongoing relationship with the other parent. Indeed, both parents were admonished by the trial judge for their negligence in carrying out this mutual responsibility. We agree with the trial court that each parent could be more cooperative in nurturing the children’s relationship with the other parent.

Given the evidence that both parents have a deep love for Bret and Bert, that the mother's illness has stabilized, leaving her entirely capable of caring for the twins; and that both parents are quite capable of providing the children with comfortable home environments, it was well within the judge’s discretion to have given lesser weight to the previous custody judgment and the stability of environment factor than he did to the other evidence presented at the new trial. Thus, we find that the judge was entirely within his discretion in awarding joint custody in this instance.

Finally, Mr. Turner avers that Article 146 does not mandate equal physical custody of minor children under a joint custody award. We agree, for as we have previously stated “We don’t interpret joint custody to mean a fifty-fifty sharing of time.” Plemer v. Plemer, 436 So.2d 1348 (La.App. 4th Cir.1983). However, while a joint custody award does not require equal physical custody, there is nothing in Article 146 which indicates that the judge acted contrary to the law, or in abuse of his discretion in making an award of equal physical custody in this case.

In conclusion, we find the trial judge acted in accord with present law and did not abuse his discretion in making this award of alternating annual physical custody.

For the foregoing reasons, the judgment of the lower court is affirmed.

AFFIRMED.


author: BYRNES, Judge. LOBRANO, Judge,

text:
    Raphael J. JONES, III v. Lawrence P. BOURGEOIS.
    No. CA 0944.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 12, 1984.
    Rehearing Denied Feb. 22, 1984.

      Cronvich, Wambsgans & Michalczyk, Richard M. Michalczyk, Metairie, for plaintiff-appellant.
    Kirk A. Vaughn, Edward S. Bopp, Arabi, ■for third party, plaintiff-appellant.
    Orrill & Avery, R. Ray Orrill, Jr., New Orleans, for third party, defendant-appellant.
    Before BYRNES, LoBRANO and WILLIAMS, JJ.
   BYRNES, Judge.

This is an action in Quanti Minoris, involving sewerage problems discovered after purchasing a house. Appellant, Raphael J. Jones, III, filed suit in Civil District Court for Orleans Parish against appellee, Lawrence P. Bourgeois, Bourgeois filed a third party demand for indemnification against Gerald L. Schroeder, the builder of the house and Bourgeois’ vendor. The matter was tried on April 21, 1982 and was taken under advisement. On May 27 judgment was rendered in favor of Raphael Jones in the amount of $8,111.31 and in favor of Lawrence Bourgeois against Gerald Schroeder in the same amount. All parties appeal.

ISSUES

Raphael Jones makes two assignments of error. 1.) The trial court erred in denying reasonable attorney fees; and 2.) the trial court erred in failing to award general damages for inconvenience and mental an--guish. Lawrence Bourgeois and Gerald Schroeder contend that the trial court improperly denied their Exceptions of Prescription.

Schroeder further argues that when Jones released the plumbing sub-contractor, who originally installed the defective sewer lines, from liability without reserving his rights against Schroeder, Schroeder was also released. Alternatively, Schroeder argues that Jones’ costs for repairing the plumbing problem were excessive and he did not meet his duty to mitigate damages.

FACTS

Raphael J. Jones, III acquired the residence at 4240 Boston Drive in New Orleans from the defendant Lawrence P. Bourgeois. The Act of Sale took place on March 23, 1978 and the purchase price was $60,000.00. The home was built in 1971 by Gerald L. Schroeder, General Contractor and Realtor, who leased it to other individuals until 1976 when he sold it to Bourgeois. Charles Foss was the original sub-contractor, who installed the plumbing for the home in 1971.

In April 1978, Mr. Jones began experiencing problems with his plumbing in the form of slow drainage and some backing up of toilets. He called Rescue Rooter who performed some work and temporarily solved the problem. The problem worsened to the point that, between April 1978 and November 1979, Mr. Jones required the services of Rescue Rooter and/or liquid drain cleaner every 4-6 weeks. In December of 1979, Mr. Jones called a professional plumber to evaluate the problem. It was determined that there was a break in the sewer line due to the fact that the lines were not properly hung on the slab when the house was originally constructed. Between January and August 1980 extensive digging was done outside and beneath the house and the problem was finally corrected. Mr. Jones’ out-of-pocket expenses totaled $8,111.31.

PRESCRIPTION

Bourgeois contends that any action Mr. Jones may have had against him prescribed under Civil Code Art. 2534 and 2544. Schroeder contends that if Jones’ action has prescribed then no third party action exists.

Article 2534 states in pertinent part: The redhibitory action must be instituted within a year, at the farthest, commencing from the date of sale.
This limitation does not apply where the seller had knowledge of the vice and neglected to declare it to the purchaser.

Article 2544 merely makes Article 2534 applicable to an action in Quanti Minor is. Therefore, absent a showing of bad faith on the seller’s part, prescription begins to run from the date of the sale.

In the case at bar, testimony establishes that during the two years Mr. Bourgeois owned the house and leased it to other tenants, he only received two complaints regarding the plumbing. Further, he only spent $90.00 in those years to correct the slow drainage problems. We find that these facts are insufficient to show bad faith by Mr. Bourgeois.

Finally, the record shows that Mr. Jones experienced numerous problems with his plumbing throughout the 2½ years before he brought this action. Within one year from the purchase he experienced difficulty on at least three occasions. He was on notice that a potentially serious situation existed but apparently chose to use measures which alleviated the problem temporarily as opposed to hiring a plumber to discover the full extent of the difficulty.

The sale took place on March 23, 1978. Suit was not filed until September 22, 1980, some 2½ years later. Since Bourgeois was not in bad faith and suit was filed more than one year after the sale the Exception of Prescription should have been maintained. '

SCHROEDER’S LIABILITY

Civil Code Articles 2762 and 3545 provide that a contractor can be held liable for problems which occur due to bad workmanship, within ten years from construction. However, an exception has been carved out where the owner-contractor built the house as a speculative venture rather than for a specific vendee. DeSoto v. Ellis, 393 So.2d 847 (La.App.2d Cir.1981). The court in DeSoto held that the applicable prescriptive period in such a case is one year.

In the present case the record establishes that Schroeder built the house in 1971 and leased it to other individuals until he sold it to Bourgeois in 1976. Therefore, the house was built as a speculative venture and not specifically for Bourgeois. Bourgeois later sold the house to Jones in 1978. Under Civil Code Article 2503 Jones is subrogated to Bourgeois’ rights against Schroeder. Under the present facts, Bourgeois’ only action against Schroeder lies in redhibition. Therefore, the applicable prescriptive period is one year from the Act of Sale. Accordingly, any possible action against Schroeder for the defects complained of have prescribed.

CONCLUSION

The exceptions of prescription are maintained. Bourgeois and Schroeder are dismissed from the action.

For the foregoing reasons the decision of the trial court is reversed. All costs of this appeal are to be borne by appellant, Raphael Jones.

REVERSED.

LOBRANO, J., concurs with reasons.

LOBRANO, Judge,

concurring.

I concur in the majority’s reversal of this matter, and add the additional reason that since the main demand against Bourgeois prescribed, the third party demand against Schroeder must also fail irrespective of whether the home was built for a specific vendee or a speculative venture.