author: DENNIS, Justice.

text:
    LOUISIANA STATE BAR ASSOCIATION v. H. Book HOPKINS.
    No. 82-B-1362.
    Supreme Court of Louisiana.
    Feb. 27, 1984.
    Rehearing Denied April 13, 1984.

    Thomas 0. Collins, Jr., Wood Brown, III, New Orleans, Robert J. Boudreaux, Sam J. D’Amico, Baton Rouge, Carrick R. Inab-nett, Monroe, Harold J. Lamy, New Orleans, Alfred S. Landry, New Iberia, Phil-ippi P. St. Pee, Metairie, Roland J. Achee, Shreveport, Gerard F. Thomas, Natchitoch-es, for relator.
    Emile A. Carmouche, Gretna, for respondent.

       WATSON, J., would grant a rehearing.

   DISCIPLINARY PROCEEDING

DENNIS, Justice.

The Louisiana State Bar Association, through its Committee on Professional Responsibility, brought this disciplinary proceeding against one of its members, H. Book Hopkins. We conclude that Mr. Hopkins violated the Code of Professional Responsibility by failing to maintain an accurate accounting of a client’s settlement funds, by failing to promptly pay or deliver the client’s portion of the settlement and, lastly, by commingling and converting these funds to his own use.

A client of the respondent addressed a letter of complaint dated July 10, 1980 to the Bar Association. The client, who had hired respondent to represent her in asserting a claim for personal injury, asserted that on May 8, 1980 she received from respondent a check in the amount of $1517.01 as her share of funds received in settlement of her claim. But when the check was deposited it was returned unpaid due to insufficient funds in the attorney’s account. The client further alleged that despite her efforts, which included a number of phone conversations and threats to bring the matter to the attention of the Bar Association, respondent had not paid her as of the date of her letter. Based upon this complaint the Committee on Professional Responsibility conducted a preliminary investigation, concluding that a formal investigatory hearing was warranted.

Thereafter, on June 2, 1982, petitioner instituted in this Court a proceeding to disbar or otherwise discipline the respondent for alleged professional misconduct. A commissioner was appointed pursuant to the provisions of Article XV, Section 6 of the Articles of Incorporation of the Louisiana State Bar Association (1971), approved through a rule of this Court. A hearing was held before the Commissioner on February 8, 1983. Based upon the evidence adduced at this hearing the Commissioner concluded that respondent had violated Disciplinary Rules 1-102(A)(1) and 9-102(B) (failure to maintain proper accounting and failure to promptly pay or deliver the client’s portion of a settlement) but not 9-102(A) (commingling and conversion of a client’s funds) and recommended that respondent be reprimanded. The Committee thereafter filed a concurrence and opposition to the Commissioner’s report, through which it opposed the Commissioner’s conclusion that there was no evidence of intent to convert the client’s funds and his recommendation as to discipline, and then, by motion, placed this matter on the docket of this Court for oral argument. Respondent failed to formally except to the Commissioner’s findings and conclusions and admitted both in brief and at oral argument that he had acted in violation of Disciplinary Rule 9-102(B). Respondent, however, strenuously denied the accusation that he commingled and converted his client’s money.

The record before us establishes that in 1980 respondent was employed by the client to prosecute her claim for personal injury which subsequently was compromised and settled. In furtherance of settlement, respondent received a draft issued by State Farm Insurance Company in the amount of $2,528.35, payable to the respondent and his client. The draft was paid on April 19, 1980 and on April 21, 1980 the respondent’s “Office Account ” was credited in the amount of $2,528.35. On May 8, 1980, the respondent issued a check drawn on his “Client Escrow Account” to the client in the amount of $1517.01, the amount due the client from the settlement. The client’s check was returned bearing an “NSF” designation on May 21, 1980. The client discussed the matter with respondent on several occasions and received promises of payment but no money. On the second or third of July the client talked with respondent and warned him that she would contact the Bar Association on the tenth of the month if she had not received payment. The client contacted the bar association, as promised, through a letter dated July 10, 1980 and received a mailgram from respondent, dated July 11, 1980, promising payment no later than July 21, 1980. Respondent was contacted by the Committee on Professional Responsibility on July 21, 1980 and full payment was received by the client between August 1, 1980 and August 18, 1980.

There is no evidence that respondent used his client escrow account for purposes other than preserving the identity of money due clients. We conclude, therefore, that respondent did not violate D.R. 9-102 in this respect.

The record does establish, however, that respondent commingled and converted to his own use the money he received on behalf of his client and that disciplinary sanction should be imposed.

In April of 1980 respondent deposited his client’s share of the settlement funds into his office account, the bank account in which respondent kept his own money. The client’s money and respondent’s money, therefore, were commingled in the office account. During the summer of 1980 respondent withdrew from his office account some, if not all, of the client’s money and spent it for his own purposes. This conversion of the client’s funds is evidenced by the fact that respondent’s office account was overdrawn on a number of occasions after deposit of the settlement of funds therein and rarely had a balance that exceeded the amount due the client.

The purpose of lawyer disciplinary proceedings is to maintain appropriate standards of professional conduct in order to protect the public and the administration of justice from lawyers who have demonstrated through their conduct that they are unable or likely to be unable to discharge their professional duties. LSBA v. O’Halloran, 412 So.2d 523 (La.1982); LSBA v. Heymann, 405 So.2d 826 (La. 1981); LSBA v. Quaid, 368 So.2d 1043 (La.1979). The discipline to be imposed in a particular case will depend upon the seriousness and circumstances of the offense, fashioned in light of the purpose of lawyer discipline, taking into account aggravating and mitigating circumstances. LSBA v. O’Halloran, supra; LSBA v. Bensabat, 378 So.2d 380 (La.1979); see ABA Joint Committee on Professional Discipline, Standards for Lawyer Discipline and Disability Proceedings, § 7.1 p. 44 (1979).

Applying these precepts, we conclude that a one-year suspension from the practice of law is warranted.

Respondent argues that the delay in payment was caused by an inefficient office staff and by the fact that he was out of town on a regular basis during the summer of 1980 and unable to attend to the details of his practice. Respondent argues further that the fact that he paid his client in full nine days after being notified of her complaint by the Bar Association and fully cooperated with the Committee during the investigation of the matter should weigh in his favor.

We have considered respondent’s arguments and the fact that this is the- first disciplinary action taken against respondent who was admitted to practice in Louisiana in 1970, but conclude that the mitigating factors do not obviate the need for disciplinary action. Regardless of the cause of the issuance of the worthless check, the fact remains that respondent learned on May 21, 1980 that his client had not been paid and failed to rectify the sitúation, despite numerous demands by the client, until after he was contacted by the Bar Association on August 21, 1980. Professional irresponsibility is also evidenced by the fact that the funds respondent should have delivered to his client were commingled with his own and converted to his own use. Given the serious nature of respondent’s misconduct, we believe that a reprimand is inappropriate in this case and that respondent should be suspended from the practice of law for one year. We have given due consideration and weight to the respondent’s eventual payment of the sum due his client. In the absence of this important mitigating .factor, respondent’s case would warrant a more severe sanction.

Decree

It is ordered, adjudged and decreed that H. Book Hopkins, respondent, is suspended from the practice of law in this state for a period of one year, and that all costs of these proceedings be paid by respondent.


source: Caselaw Access Project

author: BLANCHE, Justice.

license: Public Domain

text:
    LOUISIANA STATE BAR ASSOCIATION v. Harold J. ZERINGER, Jr.
    No. 83-B-0452.
    Supreme Court of Louisiana.
    Feb. 27, 1984.
    Rehearing Denied April 13, 1984.

      Thomas 0. Collins, Jr., New Orleans, Richard A. Deas, New Orleans, Alfred S. Landry, New Iberia, Roland J. Achee, Shreveport, Robert J. Boudreaux, Baton Rouge, Wood Brown, III, New Orleans, Sam J. D’Amico, New Iberia, Carrick R. Inabnett, Monroe, Harold J. Lamy, New Orleans, Philippi P. St. Pee, Metairie, Gerard F. Thomas, Natchitoches, for relator.
    Sanford Krasnoff, New Orleans, for respondent.
   Disciplinary Proceeding

BLANCHE, Justice.

The Louisiana State Bar Association, through its Committee on Professional Responsibility, instituted this disciplinary proceeding against Harold J. Zeringer, Jr., a member of the Louisiana State Bar Association, practicing in New Orleans. By certified letters of September 15, 1982 and November 3, 1982, respondent was informed of seven specifications for which disciplinary action was sought.

The first three specifications alleged violations of Disciplinary Rules 6-101(A)(3), 1-102 and 9-102 in that respondent failed, despite repeated requests, to complete succession proceedings he was handling for Mrs. Concetta Rock, the representative of the Rose Saitta succession, and that he commingled over $45,000 of succession funds and converted them to his own use.

The fourth and fifth specifications alleged violations of Disciplinary Rules 1-102 and 9-102 in that respondent failed for over two years to return to the heirs of Dr. John Andrews nearly $15,000 received by respondent as a settlement in real estate litigation he was handling for them, and that he commingled and converted these funds to his own use.

The sixth and seventh specifications alleged further violations of these two disciplinary rules in connection with the succession of Lucien A. Fortier. These specifications alleged that respondent failed, despite repeated requests, to deliver over $109,000 to the Fortier heirs and that these sums were also commingled and converted to respohdent’s own use.

After proper and timely notices, an investigatory hearing was held on December 7, 1982, at which respondent appeared and represented himself. Following this hearing, the Committee on Professional Responsibility filed a petition for Disciplinary Action against respondent and requested that a Commissioner be appointed. This Court appointed Francis Emmett as Commissioner and a hearing was held on August 23-24, 1983, following which the Commissioner submitted his findings of fact and conclusions of law. The LSBA concurred in these findings. Respondent failed to object to the Commissioner’s findings of fact within the twenty (20) days allowed and is, therefore, bound by them. Art. XV, § 6(d), Articles of Incorporation of Louisiana State Bar Association.

The uncontroverted evidence established that Zeringer was retained to open and complete the Saitta succession. The succession was opened, but the heirs still had not been placed into possession some sixteen months later, although all necessary documents had been completed and repeated demands had been made. At the end of this time, Mrs. Coneetta Rock, succession representative, was forced to retain counsel in Mississippi who, in turn, associated local counsel in New Orleans to complete the succession. Although Zeringer finally returned over $45,000 to Mrs. Rock, as heir, the record reflects that he did so only after being threatened with arrest by the Orleans Parish District Attorney’s office.

The evidence also established that respondent represented several heirs of John Andrews in litigation involving real estate. The matter was settled and settlement funds given to respondent in his capacity as attorney. Although those sums were partially distributed to his clients, nearly $15,000 are still due them, despite repeated demands over almost a three-year period that respondent conclude the matter and disburse the remaining funds. By respondent’s own admission, it would have taken minimal time and effort to complete this matter.

The third matter concerned usufruct funds belonging to Dr. Lucien Fortier, a client of respondent’s for many years, as well as other funds belonging to the Fortier succession once Dr. Fortier died. Respondent has failed to comply with requests of the Fortier heirs that they be put in possession of their inheritances, totaling nearly $110,000.

A review of the entire record leads us to the inescapable conclusion that respondent has violated DR 6-101(A)(3) in that he has neglected for months and even years to conclude legal matters entrusted to him. As a result of this neglect or refusal, he has caused his clients to retain other counsel to assist them in these matters.

A review of all of the evidence also leads to the conclusion that respondent has violated DR 9-102 relating to the commingling and conversion of clients’ funds. Although respondent testified that he was authorized to invest the Saitta and Fortier funds in unspecified “investment programs” that he maintained, the record is completely devoid of documentation of any nature indicating that he had any authority whatsoever to retain or “invest” these funds. The only excuse given for the retention of the Andrews’ funds was that these disciplinary proceedings so distressed respondent that he could not attend to the matter, an excuse which carries little weight considering that his delay has lasted for almost three years.

Furthermore, the evidence shows that all funds were deposited in the “Zeringer and Zeringer Special Account” maintained at the Hibernia National Bank. This was not a trust account used solely for clients’ funds. Rather, the bank record indicates that along with these and other clients’ funds, funds of several corporations (programs) were deposited in this account, unidentified payroll monies were paid from it, and fees to respondent, as well as dividends to relatives and other clients were paid therefrom. No records whatsoever were maintained concerning clients’ funds that were handled through this account. The failure to divorce client funds from those of respondent and his other business ventures and the failure to promptly pay or deliver funds belonging to his clients are all violations of DR 9-102.

It also appears that respondent put his clients’ funds to his own use in violation of DR 1-102. It is inconceivable that an attorney could make an investment on behalf of a client and have no record thereof, no correspondence in connection therewith and no written evidence from the company with whom the investment was made. Although heirs in both the Saitta and Fortier successions were given promissory notes from the companies in which their funds were supposedly invested, these notes were forthcoming only upon complaints from the clients and were virtually worthless since unsecured; moreover, in at least one instance there were no corporate assets when the note was given. A review of the records of the account where both client and corporate funds were kept necessarily shows that respondent converted client funds to his own use because the balance of that account was frequently too low to have met even the smallest of the obligations which respondent owed these clients. This conclusion is further bostered by the fact that respondent personally endorsed the notes referred to above and consented to judgments being taken against him when he could not pay the notes as they became due.

As this court has stated in the past, the purpose of lawyer disciplinary proceedings is not so much to punish the attorney as it is to maintain appropriate standards of professional conduct in order to protect the public and the administration of justice. See, e.g., Louisiana State Bar Association v. Causey, 393 So.2d 88 (La.1980), and cases cited therein. The misuse of client funds, as the facts of this case so clearly reveal, represents the gravest form of professional misconduct and strikes at the heart of the public’s confidence in the legal profession, which this court is duty bound to protect. Louisiana State Bar Association v. Selenberg, 270 So.2d 848 (La.1972), cert. den. 414 U.S. 1021, 94 S.Ct. 443, 38 L.Ed.2d 312 (1973); Louisiana State Bar Association v. Philips, 363 So.2d 667 (La.1978); Louisiana State Bar Association v. Weysham, 307 So.2d 336 (La.1975); Louisiana State Bar Association v. Haylon, 250 La. 651, 198 So.2d 391 (La.1967). We therefore conclude that the protection of the public and the administration of justice require that the respondent be removed from the practice of law.

DECREE

Accordingly, for the reasons assigned, it is ordered, adjudged and decreed that the name of Harold J. Zeringer, Jr., be striken from the roll of attorneys and his license to practice law in the State of Louisiana be revoked.

DISBARMENT ORDERED


text:
    CHEVRON U.S.A. INC. v. MARTIN EXPLORATION COMPANY, Ken G. Martin, Bta Oil Producers, Cotton Petroleum Corporation, Thomas A. Durham, Herschell J. McCunn, Loren G. Horton, John O. Smith, Robert L. Brownlee, G.D. Ward and Gordon Smith.
    No. 83-C-1543.
    Supreme Court of Louisiana.
    Feb. 27, 1984.
    Rehearing Denied March 23, 1984.

      M. Truman Woodward, Jr., John C. Christian, M. Taylor Darden, Milling, Benson, Woodward, Hillyer, Pierson & Miller, New Orleans, Patrick S. Ottinger, Plauche, Hartley, Lapeyre & Ottinger, Lafayette, David M. Ellison, Jr., Ellison & Smith, Bat-ton Rouge, Nathaniel P. Phillips, James A. Babst, Chaffe, McCall, Phillips, Toler & Sarpy, New Orleans, for applicants.
    Robert Redfearn, Steven A. Jacobson, Simon, Peragine, Smith & Redfearn, New Orleans, William S. Strain, Strain & May-hall, Baton Rouge, Frederick B. Alexis, Provosty, Sadler & Delaunay, Alexandria, for respondents.
   BLANCHE, Justice.

This case originated as an action by Chevron for a declaratory judgment on the issue of whether Martin Exploration had forfeited its interest in an oil and gas lease in Pointe Coupee Parish. Specifically at issue was the effect of a preliminary operating agreement between Chevron and Martin’s assignor, Tomlinson, which provided for forfeiture of unit acreage for non-consenting parties. The trial court held that the preliminary agreement was binding on the parties, and found that since Martin did not enter into a subsequent agreement which modified the preliminary agreement, Martin’s interest was forfeited when Martin refused to provide its share of the cost in the four wells drilled on the lease. The Court of Appeal, 1st Circuit, 432 So.2d 886, reversed, on the basis that the terms of the preliminary agreement indicated its temporary nature and the intent of the parties to agree later to a final, binding agreement. The essence of its holding was that the preliminary agreement was no more than an “agreement to agree” and since no final agreement was reached by the parties when the wells were drilled, Martin was not bound thereby. Chevron, BTA Oil Producers (hereafter referred to as ‘BTA’) and Cotton Petroleum Corporation now seek review of this holding.

FACTS

The circumstances leading to this lawsuit began in 1975, when Chevron and Tomlin-son Interests, a small independent oil company, agreed to jointly acquire a mineral lease over acreage described as the F. Evan Farwell tract. The agreement between Chevron and Tomlinson was confect-ed by exchange of Telexes in October of 1975. In this exchange, the two companies agreed to an arrangement whereby each company would own 50% of the lease, with Chevron to be named operator. Additionally, the parties agreed that if one of them did not consent to a drilling operation, the penalty would be forfeiture of unit acreage. The Farwell lease was then subsequently acquired on November 7, 1975.

On November 18, 1975, Tomlinson assigned 30% of the lease (or 60% of Tomlin-son’s interest) to BTA. This assignment was later modified to include 40%, in exchange for which BTA agreed to drill a test well on the leased acreage. The agreement between Tomlinson and BTA contained a number of explicit references to prior existing agreements. Among these was paragraph 10, which purported to condition the assignment to Tomlinson’s arrangement with Chevron, in the following manner:

“10. Chevron Agreement. Tomlinson has advised BTA that preliminary agreement has been reached with Chevron as to joint operations to be conducted on acreage covered by the Farwell Lease or acreage pooled therewith, which preliminary agreement provides (i) that the 'penalty for a nonconsenting party to a proposed well is loss of unit acreage, insofar as Farwell Lease acreage is included in any such unit, or 640 acres in the absence of a unit with an acreage adjustment if a unit is later established, and (ii) for Chevron to be operator, except as to a well in which Chevron is a nonconsenting party. It is understood and agreed that following execution hereof, BTA shall join in such negotiations and shall be a party to the written agreement with Chevron finalizing the points listed above.” (Emphasis added)

Tomlinson proceeded to divest itself of the remainder of its interest in the Farwell lease, in assignments to Cotton Petroleum (3%) in 1977, and Martin Exploration (7%) in 1978. The assignment from Tomlinson to Martin stipulated several agreements to which the assignment would be subject, including the November 18, 1975 agreement between Tomlinson and BTA. Further, in the assignment, Martin agreed to accept all the liabilities and obligations incurred by the assignor in the agreements listed.

Subsequent to Martin’s acquisition of the 7% interest, Chevron, in its capacity as operator, drilled four wells on the Farwell lease. BTA, Cotton and Martin were all invited to join in the cost of the wells as working interest owners. BTA and Cotton did so, and entered into written operating agreements with Chevron for each well. Each of these operating agreements contained penalty provisions for non-consenting parties in the amount of 350% of their costs before the non-consenting party could participate in the production from the well. Martin refused to join any of the operating agreements and did not advance its share of the drilling costs.

In the trial court, Chevron and BTA argued that because Martin failed to participate in the operating agreements for any of the four wells drilled, his interest was controlled by the preliminary agreement, which provided for a forfeiture of unit acreage. Martin, on the other hand, maintained that the preliminary agreement mentioned in the assignment from Tomlinson to BTA was not a final agreement, and therefore, that Martin’s interest in the acreage was not subject to any operating agreement or any penalty for non-consent.

The trial court found that Martin acquired his interest with full notice of the preliminary agreement, and the accompanying non-consent provision. The court further found that the preliminary agreement was a completed contract, even though it was described as preliminary. According to the trial court, characterization of an agreement as preliminary is not determinative of whether it was intended to be binding. In this case, the court reasoned, the parties desired to establish a basic working agreement, which could be modified in the future.

On appeal, the First Circuit reversed, finding that the use of the words “preliminary”, “finalize” and “negotiations” in the letter agreement indicated a tenative, rather than final agreement. The Court of Appeal found particularly significant the last sentence of Paragraph 10, which stated that BTA would join in negotiations and be a party to an agreement finalizing the terms listed in Paragraph 10. If the agreement was complete, the Court reasoned, there would have been no reason to negotiate or finalize the agreement. The Court further observed that paragraphs 1-9 in the agreement incorporated by reference other agreements, all of. which were couched in definitive language. Finally, the court noted that each well drilled on the Farwell acreage was subject to operating agreements carrying a non-consent penalty of 350% of the costs — indicating that the forfeiture penalty was a preliminary idea, and had not been carried into effect in any of the subsequent operating agreements.

The sole issue in this case is what effect ought to be given to the preliminary agreement contained in paragraph 10 of the Tomlinson-BTA agreement. We agree with the trial court that Martin had notice of this agreement, as it was specifically included by reference in the assignment from Tomlinson to Martin. The problem, of course, is: of what sort of agreement did Martin have notice?

The word preliminary, by itself, does not necessarily connote a tenative or non-binding agreement. Preliminary, in its most general usage, implies something which precedes something else. Webster’s New Collegiate Dictionary, 1970. Use of the term ‘preliminary’ to describe the agreement between Chevron and Tomlin-son therefore suggests that other agreements were expected to follow this initial agreement. It does not preclude the agreement from being final until later agreements are reached, or from being the only agreement in the event no other agreements are confected.

More difficult, however, is the additional language at the conclusion of paragraph 10, which makes reference to negotiations and finalization of the preliminary agreement. Martin argues that this sentence evidences an intent that a written agreement was contemplated which would include the terms listed in the preliminary agreement. No written agreement was ever made subsequent to this assignment to BTA which included the same non-consent penalty provision. Instead, the written operating agreements for the wells drilled on the Farwell lease all adopted the less onerous 350% penalty provision common in the oil industry. Therefore, Martin argues, the preliminary agreement did not bind BTA, nor Martin itself through reference in the assignment from Tomlinson.

Although Martin’s argument is forceful, we find that the trial court’s resolution of the problem most truly reflects the intent of the parties. Clearly, the rather unfortunate description of the agreement between Chevron and Tomlinson in the BTA assignment is susceptible of more than one interpretation. Under the civil code, courts are bound to give effect to contracts according to the true intent of the parties. La.C.C. art. 1945. To ascertain the intent behind the agreement, then, it is necessary to understand the position of the respective parties before, during and after the execution of the agreement in question.

At the outset, an agreement to acquire a lease was reached between Chevron and Tomlinson through the exchange of Telexes. Part of this Telex agreement, which constituted a binding contract between Chevron and Tomlinson, provided for a non-consent penalty of forfeiture of acreage. Aware of his responsibility under this contract, Tomlinson attempted to incorporate the loss of acreage provision: first, in his assignment to BTA, and then later, in his assignment to Martin. The intent to bind BTA to the agreement between Chevron and Tomlinson is evident from the statement that BTA “shall be a party to the written agreement with Chevron finalizing the points listed above.” Although it is possible that a future written agreement was contemplated, it is more probable that the written agreement was the Telex agreement between Chevron and Tomlin-son.

When Chevron and Tomlinson first agreed to purchase the Parwell lease, they recognized the high risk nature of the enterprise and no doubt agreed to the loss of acreage penalty as a means of insuring that each party would remain to provide its respective drilling costs. Once the parties were bound by the more onerous agreement, there would be little difficulty in reaching agreement on individual operating agreements where the penalty for non-consent was the more traditional loss of 350% of costs.

For Martin, several options existed at the time Chevron, as operator, began drilling. Martin could have joined the operating agreements and paid its share of the costs along with the other interest owners. Apparently, Martin did not wish to or could not pay the costs at the time. Alternatively, Martin could have joined the operating agreements and reneged on payment of costs, in which case he would have been subject to the 350% penalty. Martin did not do this, however, but attempted to avoid a penalty altogether by construing Tomlinson’s assignment to BTA so that no preliminary agreement bound Martin, and allowed Martin a 7% interest in production after costs, with no initial investment or risk. In so doing, Martin forfeited his interest in the unit acreage of the four wells drilled under the lease.

In summation, we find that the preliminary agreement described in the Tomlin-son-BTA assignment was not an agreement to agree, but an actual contract between Chevron and Tomlinson, which subsequently bound Tomlinson’s assignees, BTA, Cotton and Martin, who received their assignments with notice of this prior agreement.

DECREE

For the foregoing reasons, the opinion of the Court of Appeal is reversed, and the judgment of the trial court reinstated.

REVERSED.


author: PER CURIAM.

text:
    Doris Marie DARVILLE, Individually and on Behalf of her Minor Children Bryan Darville, Marvis Darville and Tiki Darville, v. TEXACO, INCORPORATED and XYZ Insurance Company.
    Nos. 84-C-0029, 84-C-0042.
    Supreme Court of Louisiana.
    March 9, 1984.
    Reconsideration Denied April 2, 1984.

      John S. White, Jr., Kennon, White & Odom, Baton Rouge, for intervenor-appli-cant in No. 84-C-0029 and for defendant-respondent in No. 84-C-0042.
    Paul J. Galuszka, Wiley G. Lastrapes, Jr., Joan G. Quinters, Chaffe, McCall, Phillips, Toler & Sarpy, New Orleans, for defendant-respondents, in No. 84-C-0029 and for plaintiff-applicant in No. 84-C-0042.
   PER CURIAM.

Plaintiffs and Intervenor in this case have applied for writs, seeking review of the judgments, 442 So.2d 1246, sustaining the exception of res judicata filed by defendants Texaco Inc. and C.A. Reisdorf, an executive officer of Texaco, Inc. and the exception of no cause of action filed by the other seventeen defendants, all of whom are executive officers of Texaco Inc. We reverse the ruling on the exception of no cause of action and remand the case to the trial court.

On December 3, 1979 plaintiff’s husband, Austin Darville, who was employed as a vacuum truck operator by Louisiana Vacuum Services, Inc., was killed while working at Texaco Inc.’s refinery at Convent, Louisiana. Plaintiff brought a diversity action in federal district court against Texaco and one of its executive officers, C.A. Reisdorf. The action was based on negligence, strict liability and intentional tort theories. Texaco claimed statutory employer status and moved for summary judgment. The trial court granted Texaco’s motion, finding that Texaco was a statutory employer of the deceased and that the plaintiffs had failed to raise a triable issue of fact on the intentional act theory. This judgment was affirmed on appeal. Darville v. Texaco Inc., 674 F.2d 443 (5th Cir.1982).

The present action was filed in the Twenty-third Judicial District Court on December 19, 1979. Named defendants were Texaco, Inc., C.A. Reisdorf and seventeen other executive officers of Texaco who had been dismissed from the federal action for lack of diversity of citizenship. The petitions filed in this state court action are virtually identical to those filed in the federal court. As to defendants Texaco Inc. and C.A. Reisdorf the thing demanded in this action is the same as that which was demanded in the earlier suit, a money judgment for the wrongful death of Austin Darville. Likewise, the cause of action is the same. Plaintiff has alleged for the second time that the death of her husband was caused by the negligence and, or, intentional acts of Texaco and C.A. Reisdorf. The doctrine of res judicata therefore, is applicable with regard to these claims.

The petition, however, did not include an allegation that an employee-employer relationship existed between the deceased and Texaco, Inc. On the contrary, plaintiff has alleged that her husband was an employee of Louisiana Vacuum Services, Inc. and that her husband’s death was caused by the negligence and intentional acts of Texaco, Inc. and seventeen of its executive officers.

The purpose of an exception of no cause of action is to determine the sufficiency in law of the petition. The exception is triable on the face of the papers and for the purposes of determining the issues raised by the exception, the well pleaded facts in the petition must be accepted as true. La.C.C.Pro. art. 927; Mayer v. Valentine Sugars, Inc., 444 So.2d 618 (La.1984); Haskins v. Clary, 346 So.2d 193 (La.1977). The general rule applicable to a trial of such exception is that an exception of no cause of action must be overruled unless the allegations of the petition exclude every reasonable hypothesis other than the premise upon which the defense is based; that is, unless the plaintiff has no cause of action under any evidence admissible under the pleadings. Haskins, supra, at 195; West v. Ray, 210 La. 25, 26 So.2d 221 (1946).

Accordingly, since the allegations admit to a reasonable hypothesis under which the plaintiff would have a cause of action, i.e., that no employer-employee relationship existed between the deceased and Texaco Inc. and that plaintiffs’ losses were caused by the negligence and, or, intentional acts of the exceptors, executive officers of Texaco Inc., the exception must be overruled.

We, therefore, conclude that the courts below erred in holding that plaintiff had failed to state a cause of action because she had failed to allege facts which would establish an intentional act. Having alleged that her husband was not an employee of Texaco Inc., plaintiffs allegations of negligence were sufficient to state a cause of action.

REVERSED AND REMANDED.


text:
    STATE of Louisiana v. Earl HOWARD, Jr.
    No. 83-KA-1950.
    Supreme Court of Louisiana.
    March 9, 1984.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., William R. Campbell, Michael Simpson, Joseph Meyer, Asst. Dist. Attys., for plaintiff-appellee.
    Elizabeth W. Cole, Supervising Atty., New Orleans, for defendant-appellant.
   PER CURIAM.

Defendant was charged by bill of information with armed robbery in violation of La.R.S. 14:64. After trial by jury on December 16, 1980, he was found guilty of simple robbery, La.R.S. 14:65. On February 26, 1981, the trial court sentenced him to six (6) years’ imprisonment at hard labor. Defendant has now appealed his conviction and sentence to this Court urging two assignments of error.

We find no reversible error on the present record. However, we agree with counsel that the state should have disclosed the prior statements of its two principal witnesses contained in the police report, or submitted the report to the trial judge for an in camera inspection. The victim and a second eyewitness who identified defendant at trial both conceded that he had “looked different” to them at a pretrial hearing than he had on the night of the offense. In light of that testimony, defense counsel moved for production of pri- or statements by these witnesses to the police, or alternatively, for an in camera inspection of the' statements by the trial judge. Counsel focused her request “most particularly” on the initial descriptions of the perpetrator the witnesses claimed to have given the police.

The trial court refused to order disclosure of the statements to the defense and did not conduct its own inspection of the police report. However, under these circumstances, counsel had made a specific request for material information and demonstrated good cause for that request. See, State v. Smith, 430 So.2d 31 (La.1983). Moreover, because the officer who took the complaint of the robbery did not testify, his report provided the defense with its only access to the initial descriptions given at the time of the crime. There was no other way for defense counsel (or the court) to determine whether the prosecutor had failed to disclose exculpatory evidence.

Therefore, we affirm defendant’s conviction and sentence conditionally, but remand the case to the trial court for it to determine: (1) whether the police report contained descriptions of the robber given by the witnesses on the night of the offense that were inconsistent with their trial testimony; and (2) in the event that the report reveals inconsistencies, whether failure to disclose requires a new trial. Cf, State v. Davenport, 399 So.2d 201 (La. 1981). Otherwise, we reserve to defendant his right to appeal any adverse ruling by the trial court.


text:
    Mrs. Elizabeth CONGLETON v. BATON ROUGE GENERAL HOSPITAL.
    No. 84-C-0347.
    Supreme Court of Louisiana.
    March 23, 1984.
   In re Mrs. Elizabeth Congleton applying for Certiorari, or Writ of Review, to the Court of Appeal, First Circuit, No. 83-CA-0241; 19th Judicial District Court, Parish of E. Baton Rouge, No. 257173.

Denied.

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


text:
    STATE of Louisiana v. Lloyd SIMPSON.
    No. 84-KP-0434.
    Supreme Court of Louisiana.
    March 23, 1984.
   In re Lloyd Simpson, applying for writ of certiorari to the Thirty-sixth Judicial District Court, Parish of Beauregard, No. 17464, Division B.

Granted. The ruling of the trial court is set aside; the matter is remanded for consideration of the application for writ of habeas corpus by a judge other than Judge Coltharp. This Court has not considered the merits of the application. See C.Cr.P. 671(3).


text:
    STATE of Louisiana ex rel. Clifford KEYS v. The 27TH JUDICIAL DISTRICT COURT JUDGES FOR the PARISH OF ST. LANDRY, LOUISIANA.
    No. 84-KH-0366.
    Supreme Court of Louisiana.
    March 23, 1984.
   In re Clifford Keys, applying for Remedial Writ to the Twenty-seventh Judicial District Court, Parish of St. Landry, Nos. 29-666 and 29-995.

Denied. Relator’s petition is scheduled for a hearing in the District Court on April 6, 1984.


text:
    STATE of Louisiana ex rel. Fleming L. MOORE v. Hon. Wollen J. FALGOUT, Judge, 17th Judicial District Court.
    No. 84-KH-0399.
    Supreme Court of Louisiana.
    March 23, 1984.
   In re Fleming L. Moore, applying for Writ of Mandamus to the Seventeenth Judicial District Court, Parish of Lafourche, No. 123113. •

Granted. Trial judge ordered to rule on relator’s motion for an out of time appeal and application for post conviction relief.


text:
    STATE of Louisiana v. Nash Franklin WILKINS.
    No. 84-KH-0488.
    Supreme Court of Louisiana.
    March 23, 1984.
   In re Nash Franklin Wilkins, applying for Remedial Writ to the Thirty-Eighth Judicial District Court, Parish of Cameron.

Granted. This writ is transferred to the 3rd Circuit Court of Appeal for disposition in accordance with law.

DIXON, C.J., dissents. This writ should be denied.


text:
    STATE of Louisiana ex rel. Melvin POCHÉ v. Hon. Frank A. MARULLO, Jr., Judge, Criminal District Court, Section “D”.
    No. 84-KH-0229.
    Supreme Court of Louisiana.
    March 23, 1984.
   In re Melvin Poché, applying for Remedial Writs from Criminal District Court, No. 291-927, Section “D”, Parish of Orleans.

Granted. This matter is transferred to the Fourth Circuit, Court of Appeal.


text:
    STATE of Louisiana ex rel. Edward J. BOURGEOIS v. Hon. Bernard J. BAGERT, Judge and Clerk of Court, Criminal District Court, Parish of Orleans.
    No. 84-KH-0299.
    Supreme Court of Louisiana.
    March 23, 1984.
   In re Edward J. Bourgeois, applying for writ of Mandamus to the Criminal District Court, Parish of Orleans, No. 262-823.

Writ granted for sole purpose of transferring to district court for consideration.


text:
    STATE of Louisiana ex rel. Nathan L. MOON v. Sheriff Charles FOTI, Jr.
    No. 83-KH-0318.
    Supreme Court of Louisiana.
    March 23, 1984.
   In re Nathan L. Moon, applying for Remedial Writs to the Criminal District Court, Parish of Orleans.

Denied. No record of filing in district court.


text:
    STATE of Louisiana ex rel., Quenton N. BROWN v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 83-KH-0885.
    Supreme Court of Louisiana.
    March 23, 1984.
   In re Quenton N. Brown, applying for Writ of Habeas Corpus, Parish of St. Mary, No. 71162.

Denied.


text:
    STATE of Louisiana ex rel., Theodore ELLIS v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 83-KH-0886.
    Supreme Court of Louisiana.
    March 23, 1984.
   In re Theodore Ellis, applying for Supervisory Writs, Parish of Rapides, No. 193737.

Denied.


text:
    STATE of Louisiana ex rel., Edward James SCOTT v. Hon. Alvin V. OSER, Judge, Section “J”, Criminal District Court, Parish of Orleans, State of Louisiana, New Orleans, Louisiana.
    No. 83-KH-0890.
    Supreme Court of Louisiana.
    March 23, 1984.
   In re Edward James Scott, applying for Writs of Certiorari or Review, Parish of Orleans, No. 239-205.

Denied.


text:
    STATE of Louisiana, ex rel. Johnny BENNETT v. Hon. R.M. FLEMING, Judge, 16th Judicial District Court, Parish of St. Mary, Franklin, Louisiana.
    No. 83-KH-0892.
    Supreme Court of Louisiana.
    March 23, 1984.
   In re Johnny Bennett, applying for Writs of Certiorari, Prohibition and Mandamus, Parish of St. Mary, No. 112514.

Denied.


text:
    STATE of Louisiana ex rel., Ronald A. STARWOOD v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 84-KH-0335.
    Supreme Court of Louisiana.
    March 23, 1984.
   In re Ronald A. Starwood, applying for Writs of Certiorari, Prohibition, Mandamus, and Habeas Corpus, from the Twenty-first Judicial District Court, Parish of Tan-gipahoa.

Denied. Moot. The trial judge has ruled.


text:
    STATE of Louisiana, ex rel. Salvadore BROCATO v. Hon. John P. WHITLEY, Warden, and Hon. Louis G. DeSonier, Jr., Judge, 24th Judicial District Court, Parish of Jefferson.
    No. 84-KH-0394.
    Supreme Court of Louisiana.
    March 23, 1984.
   In re Salvadore Brocato, applying for Writ of Mandamus, 24th Judicial District Court, No. 80-2301, Jefferson Parish.

Denied. Moot.


text:
    STATE of Louisiana ex rel. Johnny AUGUSTINE v. Charles C. FOTI, Jr. Sheriff.
    No. 84-KH-0403.
    Supreme Court of Louisiana.
    March 23, 1984.
   In re Johnny Augustine, applying for Remedial Writ to the Criminal District Court, Parish of Orleans, No. 281-414.

Denied.


text:
    STATE of Louisiana v. Rodney BAZLEY, Sr.
    No. 84-CK-0421.
    Supreme Court of Louisiana.
    March 23, 1984.
   In re Rodney Bazley, Sr., applying for Writ of Certiorari and Review, to the Juvenile Court for the Parish of Orleans, Section C, No. 181 — 357—C; to the Fourth Circuit Court of Appeal, No. C-1767.

Denied.


text:
    STATE of Louisiana ex rel. Wilbert AUGUSTINE v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary, State of Louisiana.
    No. 84-KH-0422.
    Supreme Court of Louisiana.
    March 23, 1984.
   In re Wilbert Augustine, applying for Writ of Habeas Corpus to the Criminal District Court, No. 164766, Parish of Orleans.

Denied.


text:
    Leroy H. SCOTT v. GULF INSURANCE CO., et al.
    No. 84-CC-0545.
    Supreme Court of Louisiana.
    March 23, 1984.
   In re Gulf Insurance Co., et al., applying for supervisory writs and/or petition for mandamus and stay order to the Civil District Court, Parish of Orleans, No. 82-9239, Div. “K”; Fourth Circuit Court of Appeal, No. C-2057.

Denied.


text:
    STATE of Louisiana ex rel. Earnest KNIGHTON, Jr. v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 84-KP-0538.
    Supreme Court of Louisiana.
    March 23, 1984.
   In re Earnest Knighton, Jr., applying for stay of execution, supervisory writs and writ of habeas corpus, to the Twenty-sixth Judicial District Court, Parish of Bossier, No. 58287.

Denied.


text:
    STATE of Louisiana ex rel., Joseph O. MINICK v. Acton HILLEBRANDT, Clerk of the Fourteenth Judicial District Court: Parish of Calcasieu and the State of Louisiana.
    No. 83-KH-0888.
    Supreme Court of Louisiana.
    March 23, 1984.
   In re Joseph 0. Minick, applying for supervisory writ and writ of mandamus to the 14th Judicial District Court, Parish of Calcasieu, No. 8549-82.

Granted. Defendant is to be given Boy-kin transcript. Otherwise denied.


text:
    STATE of Louisiana v. Troitdell LACKINGS.
    No. 84-KH-0197.
    Supreme Court of Louisiana.
    March 23, 1984.
   In re Troitdell Lackings, applying for writ of certiorari and mandamus from the Criminal District Court, “Section D”, No. 268-304, Parish of Orleans.

Granted. Trial judge ordered to furnish relator with copy of Boykin transcript of the 1979 guilty plea (268-304D).


text:
    STATE of Louisiana ex rel. Gloria J. EDWARDS v. COURT REPORTER 11TH JUDICIAL DISTRICT COURT.
    No. 84-KH-0383.
    Supreme Court of Louisiana.
    March 23, 1984.
   In re Gloria J. Edwards, applying for remedial writs, to the Eleventh Judicial District Court, Parish of DeSoto, No. 39578.

Granted. The district court is ordered to furnish relator minutes of the Boykin examination.


text:
    Neal H. WOMACK, Jr. v. STATE FARM FIRE AND CASUALTY COMPANY.
    No. 84-CC-0433.
    Supreme Court of Louisiana.
    March 23, 1984.
   In re State Farm Fire and Casualty Company, applying for writs of certiorari, prohibition, and mandamus, from the Nineteenth Judicial District Court, Parish of East Baton Rouge, No. 248470, to the First Circuit Court of Appeals, No. CW 84/0224.

Denied.


text:
    STATE of Louisiana ex rel. Willie TAYLOR v. Hon. Frank V. ZACCARIA, Judge 24th Judicial District Court, Division “B”.
    No. 84-KH-0437.
    Supreme Court of Louisiana.
    March 23, 1984.
   In re Willie Taylor, applying for remedial writ to the 24th Judicial District Court, Parish of Jefferson, No. 76-2914.

Denied. The district court reports that the Boykin transcript is unavailable.


text:
    Virginia Faye JONES, et al v. INTERNATIONAL TELEPHONE AND TELEGRAPH CORPORATION, et al.
    No. 84-CC-0438.
    Supreme Court of Louisiana.
    March 23, 1984.
   In re Universal Wire Products, Inc., applying for writs of certiorari, prohibition, and mandamus, to the 14th Judicial District Court, Parish of Calcasieu, No. 80-4300; Court of Appeal, Third Circuit, No. 84-57.

Denied.


text:
    Eveline JENKINS v. SCHWEGMANN BROS, GIANT SUPER MARKETS, INC.
    No. 84-C-0452.
    Supreme Court of Louisiana.
    March 23, 1984.
   In re Schwegmann Bros, Giant Super Markets, Inc., applying for writ of certiora-ri or review to the Fourth Circuit Court of Appeal, No. CA-1121, from the Civil District Court, Parish of Orleans, No. 78-18802.

Denied.


text:
    Lewis S. BUSLER, Jr. v. Newton FISK, Jr.
    No. 84-C-0471.
    Supreme Court of Louisiana.
    March 23, 1984.
    Reconsideration Denied April 13, 1984.
   In re Lewis S. Busier, Jr., applying for writ of certiorari to the Fifth Circuit Court of Appeal, No. 83-CA-324, from the Twenty-fourth Judicial District Court, Parish of Jefferson, No. 266-358.

Denied.

DENNIS, J., would grant the writ.


text:
    STATE of Louisiana v. Elia N. VILLOLDO And Elia M. Villoldo.
    No. 84-KK-0498.
    Supreme Court of Louisiana.
    March 23, 1984.
   In re Elia N. Villoldo and Elia M. Villol-do, applying for writs of certiorari and/review and stay order to the Criminal District Court, Parish of Orleans, No. 298-965; Fourth Circuit Court of Appeal, No. K-1925. '

Denied.

DIXON, C.J., and DENNIS, J., would grant the writ.


text:
    STATE of Louisiana, ex rel. Robert Lee WILLIE v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 84-KP-0529.
    Supreme Court of Louisiana.
    March 23, 1984.
   In re Robert Lee Willie, applying for stay of execution, post conviction relief, writ of habeas corpus and remedial writs, 22nd Judicial District Court, Washington Parish, No. 35802.

Denied.


text:
    WESTBEND AMUSEMENT CORPORATION v. WESTEND DEVELOPMENT CO.
    No. 84-CC-0353.
    Supreme Court of Louisiana.
    April 2, 1984.
   In re Westend Development Co., applying for writs of certiorari, prohibition and mandamus to the Fifth Circuit, No. 84-C-63; 24th Judicial District Court, Parish of Jefferson, No. 289-626.

Granted. The stay order of the 5th Circuit Court of Appeal is vacated and the matter is remanded to the trial court to proceed with the judicial sale by executory process in accordance with law.


text:
    STATE of Louisiana ex rel. Wilbert CUSHENBERRY v. Hilton BUTER, Warden.
    No. 84-KH-0503.
    Supreme Court of Louisiana.
    April 2, 1984.
   In re Wilbert Cushenberry, applying for remedial writs to the Twenty-third Judicial District Court, Parish of Ascension, Nos. 263 and 267.

Granted and transferred to district court to act forthwith.


text:
    Joseph A. RODRIGUE, Jr. v. FIREMAN’S FUND INSURANCE COMPANY.
    No. 84-C-0444.
    Supreme Court of Louisiana.
    April 2, 1984.
    Reconsideration Denied May 25, 1984.
   In re Joseph A. Rodrigue, Jr., applying for writ of certiorari, or writ of review, to the Court of Appeal, Fifth Circuit, No. 83-CA-591; to the 24th Judicial District Court, Parish of Jefferson, No. 257-852.

Not considered. Not timely filed.


text:
    STATE of Louisiana, ex rel. Joseph SEPULVADO v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 83-KH-0925.
    Supreme Court of Louisiana.
    April 2, 1984.
    Writ Denied May 4, 1984.
   In re Joseph Sepulvado, applying for supervisory writs, Parish of DeSoto, 11th Judicial District Court, No. 31349.

Denied.

CALOGERO, J., would grant the writ.


text:
    STATE of Louisiana, ex rel., Harold BATISTE v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 83-KH-1341.
    Supreme Court of Louisiana.
    April 2, 1984.
   In re Harold Batiste, applying for writ of certiorari and habeas corpus, Parish of Orleans, No. 257-296.

Denied.


text:
    STATE of Louisiana, ex rel. Leroy M. SMITH v. Hon. Edwin A. LOMBARD, Clerk and Hon. Matthew S. Braniff, Judge, Criminal District Court, Section “B”, New Orleans, Louisiana.
    No. 83-KH-1419.
    Supreme Court of Louisiana.
    April 2, 1984.
    Writ Denied May 4, 1984.
   In re Leroy M. Smith, applying for writ of certiorari, prohibition, and review, from the Criminal District Court, Parish of Orleans, No. 282-967, Section “B”.

Denied.

CALOGERO, J., would grant an eviden-tiary hearing.


text:
    STATE of Louisiana, ex rel. Bernell THOMAS v. CLERK, 32ND JUDICIAL DISTRICT COURT PARISH OF TERREBONNE, STATE OF LOUISIANA.
    No. 83-KH-1420.
    Supreme Court of Louisiana.
    April 2, 1984.
   In re Bernell Thomas, applying for writ of mandamus, Parish of Terrebonne, No. 85857.

Denied.


text:
    STATE of Louisiana ex rel. Donald CARSON v. 22ND JUDICIAL DISTRICT COURT, PARISH OF WASHINGTON.
    No. 84-KH-0118.
    Supreme Court of Louisiana.
    April 2, 1984.
   In re Donald Carson, applying for writ of mandamus to the 22nd Judicial District Court, Parish of Washington, No. 37445; First Circuit Court of Appeal, No. KW831314.

Denied. Moot.


text:
    STATE of Louisiana ex rel. William SAM v. Ross MAGGIO, Jr., Warden.
    No. 84-KH-0364.
    Supreme Court of Louisiana.
    April 2, 1984.
   In re William Sam, applying for supervisory writ, to the Criminal District Court, Parish of Orleans.

Denied.


text:
    STATE of Louisiana, ex rel. Curtis LYONS v. Honorable Walter C. PETERS, Judge, 31st Judicial District Court, Parish of Jefferson Davis, State of Louisiana.
    No. 84-KH-0425.
    Supreme Court of Louisiana.
    April 2, 1984.
   In re Curtis Lyons, applying for writ of mandamus, Jefferson Davis Parish, 31st Judicial District Court.

Denied. Moot.


text:
    STATE of Louisiana ex rel. Anthony ROBINSON v. THIRTY FOURTH JUDICIAL DISTRICT COURT PARISH OF ST. BERNARD.
    No. 84-KH-0461.
    Supreme Court of Louisiana.
    April 2, 1984.
   In re Anthony Robinson, applying for remedial writ to the 34th Judicial District Court, Parish of St. Bernard, No. 53-704.

Writ denied. The Pro Se application filed by relator in July, 1982 was dismissed when relator appeared in open court and stated under oath his desire to have a new writ prepared by appointed counsel substituted for the one he had filed.


text:
    STATE of Louisiana v. Aaron MINTZ.
    No. 84-KK-0477.
    Supreme Court of Louisiana.
    April 2, 1984.
   In re State of Louisiana, applying for writ of review to the Criminal District Court, Parish of Orleans, No. 299-888 Section “G”; Fourth Circuit Court of Appeal, No. K-1947.

Denied.


text:
    Samuel McClain LEWING v. Glenda Sonja Gray LEWING.
    No. 84-CD-0478.
    Supreme Court of Louisiana.
    April 2, 1984.
   In re Samuel McClain Lewing, applying for writ of mandamus and prohibition, to the First Judicial District Court, Parish of Caddo.

Denied. The district court advises there is no petition for divorce filed there by the relator.


text:
    STATE of Louisiana ex rel. Marlon BLACK v. 26TH JUDICIAL DISTRICT COURT, BOSSIER PARISH JUDGE CAMPBELL PRESIDING.
    No. 84-KH-0482.
    Supreme Court of Louisiana.
    April 2, 1984.
   In re Marlon Black, applying for supervisory writ to the 26th Judicial District Court, Parish of Bossier.

Denied.


text:
    TRANS-GLOBAL ALLOY, LTD. v. PEL STAR COUPLINGS, INC., David Fitzgerald, Jr. & Winton Rebouche.
    No. 84-CC-0516.
    Supreme Court of Louisiana.
    April 2, 1984.
   In re David S. Fitzgerald, Jr. and Winton Rebouche, applying for supervisory writ to the 15th Judicial District Court, Parish of Lafayette, No. 82-6025; Third Circuit Court of Appeal, No. 84-33.

Denied.

CALOGERO, J., would grant the writ.


text:
    STATE of Louisiana ex rel. Frankie Joe MIDDLEBROOKS v. CLERK OF COURT, FIRST JUDICIAL DISTRICT COURT, PARISH OF CADDO.
    No. 84-KH-0463.
    Supreme Court of Louisiana.
    April 2, 1984.
   In re Frankie Joe Middlebrooks, applying for remedial writ to First Judicial District Court, Parish of Caddo, No. 116513.

Denied.


text:
    STATE of Louisiana ex rel., Reginald B. MORRISON v. John T. KING, Secretary, Louisiana State Penitentiary.
    No. 83-KH-0553.
    Supreme Court of Louisiana.
    April 2, 1984.
   In re Reginald B. Morrison, applying for writ of certiorari, Parish of E. Baton Rouge, 19th Judicial District Court, No. 5-74-1531.

Granted and remanded. The district court must afford relator an opportunity to traverse the Commissioner’s report and make a de novo determination of the disputed findings and recommendations. See R.S. 13:713.

BLANCHE and WATSON, JJ., dissent.


author: YELVERTON, Judge. KNOLL, Judge,

text:
    Gustave KAPLAN, Individually, and Sidney Kaplan, for the Estate of the Interdict, Linda Kaplan, Plaintiffs-Appellants, v. MISSOURI PACIFIC RAILROAD COMPANY and L.B. Crain, Defendants-Appellees.
    No. 83-343.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 1, 1984.
    Rehearing Denied Feb. 29, 1984.
    Writ Denied April 23, 1984.

      James D. Davis, Alexandria, for plaintiffs-appellants.
    Provosty, Sadler & deLaunay, LeDoux R. Provosty, Jr., Alexandria, for defendants-appellees.
    Before FORET, YELYERTON and KNOLL, JJ.
   YELVERTON, Judge.

This case is again before us [its first appearance is reported in 409 So.2d 298 (La.App. 3rd Cir.1981), writ denied 411 So.2d 464 (La.1982) ], this time as an appeal from the dismissal of an action of nullity. The action of nullity sought to annul the judgment of the Ninth Judicial District Court rendered and signed in the captioned case on October 13, 1980, and later affirmed by this court in the decision cited above. The petition to annul the judgment alleged that the testimony and evidence on which the judgment was based was taken after removal of the case to the United States District Court for the Western District of Louisiana, and before remand, and that therefore the judgment, based on proceedings conducted while the Louisiana Court was without jurisdiction, is a nullity.

The plaintiffs in the instant action of nullity are the same as the plaintiffs in the action the final judgment in which is sought to be annulled. Likewise, the defendants are the same in both cases.

To the action of nullity the defendants filed the peremptory exception of no cause of action. In the alternative, defendants moved for summary judgment. The trial court sustained the exception and granted the motion. The nullity action was dismissed. We affirm. We find that the action was properly dismissed on the exception of no cause of action for the reasons which we will now explain.

As this court stated in Ingram v. Reliable Finance Company, Inc., 410 So.2d 768 (La.App. 3rd Cir.1981):

“Our jurisprudence is well settled that the exception of no cause of action is tried solely on the face of the petition and attached documents. In ruling on an exception of no cause of action, all well-pleaded facts in the petition and attached documents must be accepted as true and any doubt must be resolved in favor of the sufficiency of the pleadings to state a cause of action. Guillory v. Nicklos Oil & Gas Company, 315 So.2d 878 (La.App. 3rd Cir.1975).”

We quote relevant allegations from the petition in the instant case as follows:

“1.
“On September 22, 1980, a jury trial commenced in an action by the present petitioners against the present defendants entitled ‘GUSTAVE M. KAPLAN Y. MISSOURI PACIFIC RAILROAD CO., ET AL’.... The trial lasted approximately three weeks, .... That trial eventually culminated in a verdict for defendants and thereafter in judgment for defendants, rendered on October 13, 1980....
“3.
“During the course of the jury trial in the action referred to in paragraph 1, supra, defendants Missouri Pacific Railroad and L.B. Crain twice removed the case to federal court, to wit:
“(a) At 12:00 noon on September 23, 1980, defendants filed the [first] petition for removal ... and at approximately 12:20 p.m. on the same date filed a copy of those removal papers with the clerk of the state court. This occurred while a witness, Dr. Bernard Kaplan, was under examination in the presence of the jury. The state court continued to function throughout the testimony of that witness and until 2:00 p.m. on that date. Thereupon, the state court trial was recessed pending the federal court’s ruling on plaintiffs’ motion to remand.... Thereafter, on September 26, 1980, the United States Court of Appeal for the 5th Circuit ... ordered the case remanded to the state court....
“(b) The state court trial resumed on September 29, 1980. On that date, at 12:12 p.m., defendants filed in federal court their second petition for removal ... and immediately thereafter served those removal papers on opposing counsel and on the state court. The state court continued to function; the jury trial proceeded while the cáse was in federal court pursuant to defendants’ removal thereof. Plaintiffs filed in federal court a motion to dismiss the removal petition_ At 10:46 a.m. on October 1, 1980, the United States District Court for the Western District of Louisiana granted plaintiffs’ motion to dismiss the removal petition.
“4.
“As will be seen from paragraph 3 hereof, the state court during the trial ... continued to purport to exercise jurisdiction and the jury trial in that action proceeded during two periods of time during which the case was in federal court: first, on September 23, 1980, from approximately 12:00 p.m. until approximately 2:00 p.m.; second, from approximately 12:12 p.m. on September 29, 1980, until approximately 10:46 a.m. on October 1, 1980. Under 28 U.S.C.A. 1446(e) and under well settled federal and state jurisprudence, a state court is absolutely without subject matter jurisdiction during the period between removal of a case to federal court and the return of that case to state court by action of the federal court. Accordingly, petitioners assert that the judgment in the action entitled ‘GUSTAVE M. KAPLAN, INDIVIDUALLY AND AS CURATOR FOR THE INTERDICT LINDA KAPLAN v. MISSOURI PACIFIC RAILROAD, ET AL’, docket number 86,835, is a nullity within the terms and intendment of La.C.C.P. Article 2002.”

There are some documents attached to the petition to annul. One of them is a copy of a pleading styled “Motion to (a) Dismiss Petition for Removal and, in the Alternative, (b) Motion to Remand to State Court”, filed by plaintiffs on September 30, 1980, in federal district court. In this attached document plaintiffs alleged the following concerning the first removal proceeding:

"... Plaintiff’s first witness, Dr. Bernard Kaplan, was on the stand and testifying when at 12:00 noon, September 23, 1980, defendants filed a petition for removal of the state court suit with the federal court. Dr. Kaplan had completed testifying on direct and cross examination (and had been released by both sides) by the time a copy of the removal petition was filed with the Clerk of the Ninth Judicial District Court and the matter brought to Judge Lee’s attention. At that time, Judge Lee suspended the entire proceedings, concluding that he had no further jurisdiction.”

In the same attached document plaintiffs made the following allegations with regard to the events of September 29, 1980, involving the second removal action:

"... defense counsel announced that removal papers were being filed in federal court, and that copies of those papers were being handed to plaintiff’s counsel. The removal petition was in fact filed at 12:12 p.m. They were also attempted to be handed to the judge, who refused to receive them. The removal papers were not properly filed with the clerk of the state court.”

The plaintiffs contend that based on the facts pleaded by the petition and attached documents the trial court was without subject matter jurisdiction during the two periods between removal to federal court and the subsequent returns of that case to state court, and that therefore the October 13, 1980, judgment is a nullity within La.C. C.P. Article 2002. We disagree. We find the trial court had jurisdiction during the entire proceedings of the case under the facts alleged in the petition and attached documents.

The Supreme Court of Louisiana in State v. Butler, 405 So.2d 836 (La.1981) analyzed the federal procedure for removal statute and explained how the statutory requirements must be strictly met before a state court loses jurisdiction. The court said:

“The procedure for removal is set forth in 28 U.S.C.A. § 1446 which provides in pertinent part:
“(a) A defendant or defendants desiring to remove any civil action or criminal prosecution from a State court shall file in the district court of the United States for a district and division within which such action is pending a verified petition containing a short and plain statement of the facts which entitle him or them to removal together with a copy of all process, pleadings and orders served upon him or them in such action.
(e) Promptly after the filing of such petition and bond the defendant or defendants shall give written notice thereof to all adverse parties and shall file a copy of the petition with the clerk of such State court, which shall effect the removal and the State court shall proceed no further unless and until the case is remanded.
[2,3] Briefly, 28 U.S.C.A. § Í446 requires that the petitioner file with the federal court a verified petition, setting forth those facts that entitle him to removal. After he has filed the petition with the federal court, the petitioner must give written notice of removal to all adverse parties and file a copy of the petition with the Clerk of the state court. The requirement of filing the removal petition with the Clerk of the state court is of particular importance. Such filing gives the state court formal notice of the federal court’s involvement in what had previously been only a state court affair. The federal statute specifically provides that upon filing the removal petition with the state court, the state court is prohibited from proceeding any further with the case. This provision is designed to preclude any conflict between the two court systems by divesting the state court of jurisdiction over the matter until such time as the federal court determines if it has jurisdiction or that a remand back to the state court is necessary. It is well-settled that once the procedure for removal has been followed and so long as the case has not been remanded, any subsequent action by the state court is void, even if the case was removed improperly. See Georgia v. Rachel, [384 U.S. 780, 86 S.Ct. 1783, 16 L.Ed.2d 925] supra; State ex rel. Gremillion v. National Association for the Advancement of Colored People et al., [90 So.2d 884 (La.)] supra.
28 U.S.C.A. § 1446(e) specifically provides that defendants shall file a copy of the removal petition with “the clerk of such state court, which shall effect the removal and the State Court shall proceed no further unless and until the case is remanded.”
[4, 5] The obvious purpose of requiring defendants to file a copy of their removal petitions with the clerk of the state court is to afford actual notice of pending removal actions to the state court. Certainly, filing the subject petition with an employee of the trial judge, who is in no way connected with the office of the Clerk of Court for the Criminal District Court of Orleans Parish, does not insure the requisite notice. The requirements of filing defendant’s petition for removal with the clerk of the state court, and of giving notice to adverse parties, are not merely modal or formal, but rather constitute mandatory conditions precedent to termination of jurisdiction of the state courts and assumption of jurisdiction by the federal court. Beleos v. Life & Casualty Ins. Co. of Tennessee, 161 F.Supp. 627 (U.S. D.C. — E.D. South Carolina, 1956). The procedure for effectuating removal of matters to the federal court is simple and straightforward. We must presume that Congress when specifying the procedure for removal intended to require compliance. Beleos v. Life & Casualty Ins. Co. of Tennessee, supra. We observe that the federal courts have permitted some relaxation of the aforesaid procedure where the defendant is proceeding pro se. U.S. ex rel. Echevarria v. Silberglitt, 441 F.2d 225 (U.S.C.A. 2d Cir.1971). However, in the instant case, the defendant was represented by able counsel. We can discern no reason to permit anything less than strict compliance with the simple procedure for removal set forth in 28 U.S.C.A. § 1446. Therefore, we conclude that the state court was not properly notified of defendant’s removal petition as mandated by statute. Thus, removal to the federal court was never effected and it follows, the state court was never divested of jurisdiction over the defendant. Since the state court was never divested of its jurisdiction over the instant matter, the verdicts of the jury are valid and enforceable.” (Emphasis supplied)

We will now explain why it is that we conclude these pleadings do not state a cause of action, considering the pleaded facts in the light of State v. Butler, supra. We will examine the two removals separately.

THE FIRST REMOVAL

Accepting as true the facts alleged in the petition and attached documents, the defendants filed their first petition for removal in federal court at 12:00 noon on September 23, 1980. At 12:20 P.M. the defendants filed a copy of the removal papers with the clerk of the state court. The trial was in progress at this time. The trial continued during the lunch hour with the testimony of a medical witness. The medical witness had completed his testimony (about 2:00 P.M.) by the time the removal matter was brought to the trial judge’s attention. “At that time”, according to the pleadings, “Judge Lee suspended the entire proceedings, concluding that he had no further jurisdiction.”

Under State v. Butler, supra, the state court is divested of jurisdiction once the mandatory conditions of 28 U.S.C.A. § 1446(e) are complied with. These conditions are the filing of a verified petition for removal in federal court, written notice of removal on all adverse parties and the filing of a copy of the petition with the clerk of the state court. In the present case the petition fails to allege the essential condition that written notice of the removal was given to all adverse parties. However, we do not rest the decision that the petition regarding the first removal fails to state a cause of action on that premise, for it is possible plaintiffs could amend to allege that the written notice requirement was complied with. We base our decision on the pleaded fact that the trial court suspended the proceedings once it was given notice of removal. We find that the trial court retained jurisdiction until that time.

In Butler, supra, the court states that the purpose of the requirement of 28 U.S.C.A. § 1446(e) that a copy of the removal petition be filed with the clerk of the state court is to afford actual notice of pending removal actions to the state court. We find in the present case where there was a proceeding in progress and the jurisdiction of the state court is technically divested upon the filing of the copy of the removal petition with the clerk of the state court, the subsequent proceedings had by the state court were not rendered void until the state court had actual notice that the mandatory conditions of 28 U.S.C.A. § 1446(e) had been complied with. The pleadings in the present case indicate that the proceedings were immediately suspended by the trial judge once he was so notified. Under these pleaded facts the plaintiffs do not state a cause of action in nullity with regard to proceedings surrounding the first removal.

As we interpret the Butler case, actual notice assured by strict compliance with the mandatory notice provisions marks the termination of state jurisdiction. But actual notice to the trial judge will almost never be accomplished instantaneously with the filing of the copy of the removal petition with the state clerk of court, unless the judge happens to be present in the clerk’s office when the filing occurs. When a trial is going on when the filing occurs, some period of time must necessarily elapse between the actual filing and notification of the filing to the trial judge. We cannot believe that the filing with the clerk of the state court creates an instantaneous loss of jurisdiction having the result of stamping as null any subsequent judgment rendered in the cause after remand on the ground that some testimony, however little, occurred during removal and before the trial judge was made aware that the conditions had been met for the termination of his jurisdiction.

We are simply giving the Butler decision’s emphasis on actual notice a common sense interpretation, when we hold that in a case where a state trial is in progress and a removal petition is filed, the continuation of the proceedings for a reasonably short, explainable period of time between actual filing with the clerk of the state court and notification to the trial judge of the fact of such filing, will not render null the entire later remanded proceeding based on lack of jurisdiction, because the state court’s jurisdiction does not terminate until strict compliance with the procedure for removal outlined by 28 U.S. C.A. Section 1446 is met, together with the practical necessity that somehow the trial judge must get actual notice of what has happened.

THE SECOND REMOVAL

As to the second removal petition, the alleged facts establish the removal petition was not filed with the clerk of the state court as required by 28 U.S.C.A. § 1446(e). Since Butler, supra, declares that this is a mandatory condition precedent to termination of jurisdiction of the state court and we conclude that under the alleged facts the state court was never divested of jurisdiction over the subject matter of the suit during the second removal period, the plaintiffs’ petition fails to state a cause of action in nullity with regard to the second removal.

For the above reasons, the judgment granting the defendants’ peremptory exception of no cause of action is affirmed at appellants’ costs.

AFFIRMED.

KNOLL, J., dissents and assigns written reasons.

KNOLL, Judge,

dissenting.

The record does not support the majority opinion that the trial judge did not have actual notice until 2:00 P.M. All requirements for removal were met by 12:20 P.M., but the state court did not divest itself of jurisdiction until 2:00 P.M., during which time a witness was permitted to continue to testify until he completed his testimony. It is well settled in federal and state courts that the 1446(e) requirement that state courts “shall proceed no further unless and until the case is remanded” operates to render void any state proceedings after the filing of a removal petition. The trial judge stated in his written reasons:

“The law thus compels the conclusion that the proceedings of the state court during the interim between removal at 12:20 p.m. September 23rd and remand on September 26th were invalid and void.”

However, the trial court erroneously concluded that:

“The cases cited above, which hold that Section 1446(e) operates to render void any state proceedings subsequent to the removal, are not controlling in this particular factual situation. Those cases invalidated state court judgments rendered prior to remand by the federal court, which were adverse and prejudicial to the removing party, thus in effect penalizing the removing party for exercising his rights under federal law. Such is not the case here. The action taken by the state court in this instance was the receipt of evidence from plaintiffs' witness and plaintiffs herein were the parties opposing removal. No prejudice to plaintiffs as a result of the removal has been alleged. Additionally, the state court did not render final judgment until long after remand by the federal court.
In conclusion, the court’s ruling is not a validation of the state court proceedings after removal. Those proceedings are void in that the state court was deprived of the power to exercise its jurisdiction. That result, however, does not serve to deprive the state court of its power and authority to render a valid final judgment in the matter after remand.”

As to the second removal, although it was not filed with the state Clerk of Court, the removal petition was served on all parties and the trial judge (albeit he refused service) which fulfilled the requirement of giving actual notice. The filing with the state Clerk of Court in this case would only have been superfluous since this requirement serves as an assurance to the state court of actual notice. State v. Butler, 405 So.2d 836 (La.1981).

For these reasons, I respectfully dissent.


author: LABORDE, Judge. PER CURIAM.

text:
    STATE of Louisiana, Plaintiff-Appellee, v. Corbie L. WILLIAMS and Helen Bernice Williams, Defendants-Appellants.
    No. CR83-389.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 1, 1984.
    Rehearing Granted March 7, 1984.
    On Rehearing April 9, 1984.
    Writ Denied June 1, 1984.

      Daryl Gold, F. Clay Tillman, Jr., Lees-ville, for defendants-appellants.
    William E. Tilley, Dist. Atty., and Edwin L. Cabra, Asst. Dist. Atty., Leesville, for plaintiff-appellee.
    Before DOMENGEAUX, DOUCET and LABORDE, JJ.
   LABORDE, Judge.

Defendants, Corbie L. Williams, Sr., and Helen Bernice Williams, were charged by bill of information with production, manufacture, and/or cultivation of marijuana, a violation of LSA-R.S. 40:966(A) and (B). Defendants pleaded not guilty and received a joint trial by jury. Helen Bernice Williams was found guilty of possession of marijuana, LSA-R.S. 40:966(D) and was sentenced to serve six months in the parish prison, and to pay a fine of $500.00 plus court costs. Corbie L. Williams, Sr., was found guilty of cultivation of marijuana and was sentenced to serve seven years. Defendants appeal their respective convictions and sentences by raising sixteen assignments of error. We affirm.

FACTS

On July 15, 1982, Sheriff Frank Howard received confidential information that marijuana was being cultivated near the defendants’ residence in the Burr Ferry Community, west of Leesville. He ordered the area surrounding the defendants’ home placed under surveillance by sheriff’s deputies. The deputies observed several patches of marijuana growing in the thick brush behind the defendants’ house. The plants were approximately twelve feet tall. Obvious trials led from the marijuana patches back to the defendants’ house some 100-300 yards away. These marijuana patches were actually located on land owned by Mr. John Ford. Mr. Ford gave his consent for the land to be searched.

On July 23, Deputy Archie Martin observed Mr. Williams walk to the middle of one of the patches, bend over for a moment, and walk away. The deputies then found fertilizer on the spot where the defendant had been standing.

On July 24, the officers obtained a search warrant for the area surrounding the defendants’ residence. At eight o’clock a.m. on July 25, the officers conducted a search of the area around the residence, which revealed the cultivated marijuana plants. The marijuana was then cut from the patches, bundled and inventoried. The officers also found two bags of dry marijuana near a greenhouse on the defendants’ property. Subsequent to his arrest, Mr. Williams stated to Deputy Martin (whom he had known for 18 years), “Yes, you old gray-headed devil, you got me this time, but it was good while it lasted.” Samples from each bundle of plants were taken by Mr. Francis Touchet of the Southwest Louisiana Crime Lab and were found to be marijuana.

ASSIGNMENTS OF ERROR NOS. 1-6

The defendants assert that the trial court erred in denying the defendants’ challenges for cause of jurors Harold Lackey, Harry Anthony Taylor, Margaret Martin Funder-burk, Donald Lynn Karamales, and Eugene P. Trahan.

It appears that at the time the defendants objected to denial of these challenges for cause they had not yet exhausted their peremptory challenges. Clearly, a defendant cannot complain of a ruling refusing to sustain a challenge for cause made by him, unless his peremptory challenges have been exhausted before the completion of the panel. LSA-C.Cr.P. art. 800; State v. Sugar, 408 So.2d 1329 (La.1982). This assignment is therefore without merit.

Defendant further asserts that the trial court erred in refusing challenges for cause of prospective jurors Pat Bordelon and Eugene P. Trahan since they demonstrated a prejudice against drug offenses and drug related offenses.

It is well settled that the trial court is vested with broad discretion in ruling on challenges for cause and that this ruling will not be disturbed absent a showing of abuse of that discretion. State v. Smith, 430 So.2d 31 (La.1983); State v. Sugar, supra; State v. Heard, 408 So.2d 1247 (La.1982). Moreover, a challenge for cause is not warranted where a prospective juror has volunteered an opinion seemingly prejudicial to the defense, but subsequently upon further inquiry has demonstrated the ability and willingness to decide the case impartially according to the law and evidence. State v. Eastin, 419 So.2d 933 (La.1982); State v. Heard, supra; State v. Bates, 397 So.2d 1331 (La.1981).

Despite Mrs. Bordelon’s and Mr. Trahan’s apprehension that their prejudice against drug offenders might not yield to the law and evidence, they appeared to demonstrate upon further inquiry the ability and willingness to decide the case impartially based upon the law and the evidence. Therefore, these assignments are without merit.

ASSIGNMENTS OF ERROR NOS. 7, 8, 11 AND 15

Defendants argue that the trial court erred in failing to grant a mistrial in the following instances:

On direct examination by the state, Deputy Willard Horton testified:
Q. All right. Let’s talk first of all about Mr. Corbie Williams himself, what involvement, if any, did you have that day in the arrest of Mr. Corbie Williams?
A. I advised him he was under arrest for cultivation with the intent to distribute and also I read him his rights at that time.
(Emphasis Added)
On direct examination by the state, Deputy Larry Smith testified:
Q. Now, do you recall from your personal knowledge today, how many actual bundles of plants that you secured in garden number one? Bundles as such?
A. There was twenty-three bundles of twenty-five and seven bundles of fifties from garden one.

Defendants contend that these comments constituted prejudicial reference to other crimes alleged to have been committed by the defendants, and thus that the trial court should have granted a mistrial under LSA-C.Cr.P. art. 770(2). With regard to Smith’s comment, the defendants contend that, since the state set forth a lengthy foundation for the seventeen bundles of plants earlier admitted into evidence, reference by the officer to an additional thirteen bundles created in the mind of the jury a clear, if indirect, reference to another crime as to which evidence was inadmissable.

The Supreme Court has recognized that a police officer’s unsolicited, unresponsive reference to another crime by the defendant is not the comment of a “court official” under LSA-C.Cr.P. art. 770. Absent a showing of a pattern of unresponsive answers or improper intent by the police or prosecution, such comments would not fall within the purview of LSA-C.Cr.P. art. 771. State v. Green, 409 So.2d 563 (La.1982); State v. Goods, 403 So.2d 1205 (La.1981). Moreover, art. 771 leaves the decision as to whether to grant a mistrial or admonition to the sound discretion of the trial court. State v. Allen, 431 So.2d 808 (La.App. 4th Cir.1983).

In the instant case, these answers do not appear to be solicited by or in response to improper questioning by the prosecutor, nor do they appear to be part of a pattern of unresponsive answers or improper intent by the police or the prosecutor. Thus, the responses do not seem to fall within the purview of LSA-C.Cr.P. art. 770-771. Nevertheless, out of an abundance of caution, the trial court admonished the jury to disregard these responses. There does not appear to be an abuse of discretion in this ruling.

Defendant further contends that a mistrial should have been granted when Deputy Willard Horton testified that Mr. Williams chose to remain silent and not give any statements at the time of arrest.

Defendant cites the case of State v. Montoya, 340 So.2d 557 (La.1976) for the proposition that it is reversible error for the prosecution, during direct examination of a police officer, to elicit testimony regarding the defendant’s silence at the time of arrest, since the defendant did not take the stand and may not be impeached by evidence of his silence at the time of his arrest.

In this instance, it does not appear that the prosecutor intended to draw an improper reference to Mr. Williams’ silence; instead, the reference appeared to be an inadvertent, unresponsive reference during a description of how the arrest was conducted. Mistrial is a drastic remedy and, absent a showing of substantial prejudice depriving the defendant of a fair trial, it is unwarranted. State v. Allen, supra. There appears to be no abuse of discretion in the trial court’s ruling.

During closing arguments the prosecutor stated:

“I’m going to conclude by simply saying this, I’d like to know how many times you have heard someone say or you have said yourself, why don’t the police do something about the drug problem in Vernon Parish. I’m going to submit to you that the Sheriff’s Office has done their work. They have done it professionally, and they have done it properly. And, I submit to you now, it’s your turn. The evidence is there, it’s as clear as it can be, and, ...”

Defendant asserts that these comments were beyond the scope of closing argument and constitute reversible error.

It is well settled that LSA-C. Cr.P. art. 774 restricts closing arguments in criminal cases to the evidence, conclusions that may be drawn therefrom, and to applicable law. State v. Messer, 408 So.2d 1354 (La.1982). The prosecutor may not turn closing arguments into a plebiscite on crime. State v. Sugar, supra.

Nonetheless, in order for an improper argument by a prosecutor to constitute reversible error, it must be shown that the remarks influenced the jury and contributed to the verdict. State v. Barrow, 410 So.2d 1070, cert. denied, — U.S. -, 103 S.Ct. 115, 74 L.Ed.2d 101 (1982).

It does not appear that the remarks were so prejudicial as to influence the jury and contribute to the verdict so as to warrant the drastic remedy of a mistrial. Thus, there is no abuse of discretion in the trial court’s ruling.

For these reasons, these assignments of error lack merit.

ASSIGNMENTS OF ERROR NOS. 9 AND 10

The defendants assert that the trial court erred in admitting state’s exhibit 8-B (one of seventeen bundles of marijuana) in that the exhibit was not properly identified and no foundation for its introduction was ever laid, and in admitting state’s exhibits 9 (1 lb. bag of marijuana), 10 (7 lb. bag of marijuana), and 11 (samples from each bundle including exhibit S-8), in that the chain of custody was not sufficiently established.

Further, that exhibit S-8(B) should not have been admitted into evidence since the identification tag was missing, and that exhibits S-9, S-10, and S-ll should not have been admitted since Deputy Martin did not testify as to the chain of custody between the time he received the evidence at the Crime Lab until it was introduced at the trial. However, in view of the plethora of evidence adduced by the state regarding the chain of evidence as to these items, it does not appear that the trial court was unjustified in finding that the evidence produced at trial was, more probably than not, the same as that originally seized by the law enforcement officers. Moreover, any such defect must go to the weight of the evidence rather than to admissibility of the evidence. State v. Sam, 412 So.2d 1082 (La.1982).

These assignments of error lack merit.

ASSIGNMENT OF ERROR NO. 12

The defendant asserts that the trial court erred in admitting two brown bags containing vegetable substances as state’s exhibits 9 and 10 respectively into evidence since they are outside the scope of the opening argument.

The state’s evidence need not be detailed in the opening statement. State v. Chapman, 410 So.2d 689 (La.1981). Under LSA-C.Cr.P. art. 766, it is sufficient for the state to give a general description of the evidence it plans to introduce. State v. Edwards, 406 So.2d 1331 (La.1981), cert. denied 456 U.S. 945, 102 S.Ct. 2011, 72 L.Ed.2d 467 (1982); State v. Berain, 360 So.2d 822 (La.1978).

In the instant case, there is no indication that the evidence in question was omitted in bad faith from the prosecutor’s opening statement, or that the defendant was taken by surprise in the preparation of his defense.

This assignment of error lacks merit.

ASSIGNMENT OF ERROR NO. 14

The defendants called Gary Spurgeon to the stand for the apparent purpose of showing that he had a motive to “set up” the defendants, since one of the defendants’ sons had cooperated in an investigation which had resulted in his conviction of a felony-. They called Willard Horton to the stand for the apparent purpose of inquiring whether Dewayne Williams (a prisoner in the Sheriff’s custody at the time of the trial) had “set up” the defendants in exchange for a lenient plea bargain.

Defendants contend that the trial court erred in failing to accept the evidence of witnesses Willard Horton and Gary Spur-geon, thereby denying the defendants the ability to show a reasonable hypothesis of innocence in a purely circumstantial case.

Horton testified that Dewayne Williams had nothing to do with the case. As for Spurgeon’s testimony, while he admitted that he had a motive to “set up” the defendants, since he himself had been convicted of a felony due to the cooperation of the defendants’ son, no showing was made during the defendants’ proffer that any such scheme existed. Mr. Spurgeon did state, however, that he had nothing to do with growing the marijuana seized from near the defendants’ residence.

The trial judge is vested with wide discretion in determining the relevancy of evidence, and this ruling will not be disturbed on appeal absent a showing of a clear abuse of discretion. State v. West, 419 So.2d 868 (La.1982), State v. Kimble, 407 So.2d 693 (La.1981). There appears to be no abuse of the trial court’s wide discretion in ruling that the testimony was irrelevant.

This assignment of error lacks merit.

ASSIGNMENTS OF ERROR NOS. 13 AND 16

The defendants finally contend that the trial court erred in admitting state’s exhibit number 12 into evidence, a staged photograph whose prejudicial effect outweighed any probative value. They further contend that the trial court erred in failing to fully hear and grant their motion for a change of venue.

It is well established that assignments of error neither briefed nor argued are considered abandoned. State v. Smith, supra; State v. Dewey, 408 So.2d 1255 (La.1982).

Although the defendant listed assignments of error Nos. 13 and 16, they were neither briefed nor argued and are considered abandoned.

Based on the above and foregoing reasons, the defendants’ convictions and sentences are affirmed.

AFFIRMED.

ON REHEARING

PER CURIAM.

Following our judgment affirming defendants’ convictions and sentences, defendants filed an application for rehearing. The application contained suggested reasons why the action of this court was erroneous. Specifically, this court inadvertantly failed to properly consider defendants’ assignments of error numbers one through four, which place at issue the trial court’s ruling regarding challenges for cause of four jurors by defendants.

We granted a rehearing in order to review and further consider our previous disposition of this matter relative to defendants’ assignments of error numbers one through four.

FACTS

The defendants, Corbie L. Williams and Helen Bernice Williams, were charged by bill of information with production, manufacture, and/or cultivation of marijuana, a violation of LSA-R.S. 40:966(A) and (B). The defendants pleaded not guilty and, on November 10-12, 1982, were tried by a jury. Helen Bernice Williams was found guilty of possession of marijuana in violation of LSA-R.S. 40:966(D) and was sentenced to serve six months in the parish prison, and to pay a fine of $500 plus court costs. Corbie L. Williams was found guilty of cultivation of marijuana and was sentenced to serve seven years in the custody of the Department of Corrections.

On appeal, we affirmed the convictions and sentences of both defendants on February 1, 1984 in State v. Corbie L. Williams and Helen Bernice Williams, 447 So.2d 495. On March 7, 1984, we granted a rehearing to further consider defendants’ assignments of error numbers one through four, which question the trial court’s ruling as to challenges for cause by defendants of four jurors.

ASSIGNMENTS OF ERROR NOS. 1, 2 AND 3

By these assignments, the defendants argue that the trial court erred in refusing to find cause to remove jurors Lackey, Taylor and Funderburk from serving on the jury. Defendants argue that there was cause to exclude juror Lackey because he had a son employed as a policeman in a neighboring municipality and to exclude juror Taylor because he was a retired police officer. Defendants further challenged juror Fun-derburk because she is the sister of an attorney who is a law partner of an assistant district attorney within the jurisdiction of the trial court.

Neither the mere relationship to a law enforcement officer nor the fact that one was formerly a police officer is of itself reason to exclude one from jury service. State v. Smith, 430 So.2d 31 (La.1983); State v. Heard, 408 So.2d 1247 (La.1982). An examination of Mr. Lackey’s and Mrs. Taylor’s responses to questions on voir dire appear to demonstrate that they could act as fair and impartial jurors. Though service on a jury by a former police officer is closely scrutinized, it appears that the trial judge did not abuse his discretion in refusing to challenge Mr. Taylor. When asked whether he thought every policeman should be entitled to be believed simply because he was a policeman, Mr. Taylor responded:

“No sir, a police officer could be mistaken like anybody else.” (Tr. p. 237)

The voir dire examination of Mrs. Fun-derburk also appears to demonstrate that the business relationship of her brother to an assistant district attorney of this jurisdiction would not impair her ability to be a fair and impartial juror.

“Q. Do you think that your brother’s relationship with Mr. Skinner would be such that you might be unable to be completely impartial in this case?
A. No sir.
Q. Do you know anything at all about this case?
A. No sir, I don’t.
Q. Have you spoken at all to your brother about serving on the jury or anything of that nature?
A. No sir.
Q. Do you have any problem with the law that a person is innocent until they are proven guilty?
A. No sir.” (Tr. p. 244-245)

It appears from the extensive examination of Mrs. Funderburk that she demonstrated her ability to be a fair and impartial juror. There appears to have been nothing to indicate that she would in any way be influenced by her brother’s business association with an assistant district attorney. There appears to be no showing that the trial judge abused his discretion in refusing to challenge Mrs. Funderburk for cause.

A trial judge is vested with broad discretion in ruling on challenges for cause and his ruling will not be disturbed on appeal absent a showing of abuse of that discretion. State v. Sugar, 408 So.2d 1329 (La.1982).

Defendants have failed to show an abuse of the trial court’s discretion regarding the rulings on the challenges for cause. These assignments are without merit.

ASSIGNMENT OF ERROR NO. 4

The defendant argues through this assignment that the trial court erred in refusing to challenge Mr. Donald Lynn Kara-males for cause. The defendant argues that Mr. Karamales should not have been allowed to serve as a juror because he admitted to having formed a preconceived notion as to the defendants’ guilt as a result of a conversation he had with a deputy sheriff involved in the arrest of the defendants.

It is well settled that a charge of bias may be removed by the rehabilitation of a prospective juror. State v. McIntyre, 381 So.2d 408, (La.1980), cert. denied, 449 U.S. 871, 101 S.Ct. 209, 66 L.Ed.2d 90 (1980); State v. Chapman, 410 So.2d 689 (La.1981). In State v. Chapman, supra, the prospective juror readily admitted that he had read about the case in the newspapers and had formed an opinion as to the defendant’s guilt. That juror even remarked that “there would be some difficulty in his serving as an impartial juror”. In Chapman, the court stated:

“[HJowever, when the court questioned him further concerning his ability to decide the case based only upon the evidence presented in the courtroom, the juror stated that he would be able to do that. Under cross-examination by the defense counsel, he firmly stated that if, at the close of the evidence, he was not certain whether the defendant was in fact guilty, he would vote to acquit.”

The court, in Chapman, thus refused to challenge that juror for cause. From the testimony on voir dire, it appears, in the instant case, that Mr. Karamales had already forgotten about the defendants and that the conversation with the deputy would in no way impair his ability to be a fair and impartial juror. In response to several repeated questions, Mr. Karamales indicated that he did not, at the time of voir dire, have a preconceived opinion as to the innocence or guilt of defendants. In any event, any indication of bias was removed by the various questions and answers which served to rehabilitate Mr. Karamales as a juror. A change of bias may be removed by the rehabilitation of a prospective juror. State v. Webb, 364 So.2d 984 (La.1978); LSA-C.Cr.P. art. 797. In this instance, we find no abuse of discretion in the trial court’s ruling which denied defendants’ challenge for cause of juror Ka-ramales.

For these reasons, this assignment is without merit.

Accordingly, for reasons stated in our previous judgment and the reasons herein, defendants’ convictions and sentences are affirmed.

AFFIRMED.