author: SAVOIE, Judge.

text:
    Glynn A. LONG v. PANTHER AIRBOAT CORPORATION.
    No. 83CA0962.
    Court of Appeal of Louisiana, First Circuit.
    June 26, 1984.

      Charles S. Long, Donaldsonville, for plaintiff Glynn A. Long appellant.
    James A. Marchand, Talbot, Sotile, Car-mouche, Marchand & Marcello, Donaldson-ville, for defendant Panther Airboat Corp. appellee.
    Before COVINGTON, COLE and SA-VOIE, JJ.
   SAVOIE, Judge.

This is a redhibitory action to rescind the sale of an airboat. Plaintiff, Glynn A. Long, appeals the trial court’s judgment which reduced the price rather than rescinding the sale. Defendant, Panther Air-boat Corporation, timely answered the appeal, alleging that the trial court erred in finding jurisdiction over Panther, in finding a redhibitory defect in the award of attorney’s fees and in the assessment of court costs.

FACTS

Plaintiff became interested in purchasing an airboat from defendant upon reading an advertisement in “Ducks Unlimited,” a national magazine. After several telephone conversations with Allen Gaffney, general manager of defendant corporation, in Cocoa Beach, Florida, plaintiff purchased an airboat. It was delivered on the night of August 4, 1982, by trailer truck to Gonzales.

When plaintiff was unable to start the boat the following day, he called Gaffney. Gaffney instructed plaintiff to have the boat put into working order by a qualified mechanic and to send the bill to the company.

The boat was repaired, but did not run well when plaintiff tested it. Another telephone call was made to Gaffney with the same results. The boat remained in the shop for ten days the second time.

Apparently satisfied with the repairs, plaintiff and his son took the boat out to construct duck blinds in the marsh on August 28, 1982. At some point, plaintiff ran the boat about halfway up on a sandbar. When he was ready to leave, he gave the boat a hard left rudder and full throttle. A loud noise was heard and it was discovered that the motor had pulled off its mount. The boat was totally disabled, forcing plaintiff and his son to walk out of the marsh.

Plaintiff again contacted Gaffney and informed him of the incident. He was told to ship the boat back to Florida where it would be repaired free of charge if defendant found that the damage had been caused by a defect. Plaintiff refused this offer and demanded the return of his money. Gaffney refused. This suit followed.

In his petition, plaintiff sought to recover the purchase price of the boat and trailer, repair work done before the accident, and damages for mental anguish, pain and suffering caused by exposure in the marsh.

ACTION OF THE TRIAL COURT

After suit was filed, defendant filed a peremptory exception challenging the court’s jurisdiction. A hearing on the exception was held and the trial court found that it had personal jurisdiction over defendant. Therefore, the motion was overruled.

At the conclusion of the trial, the court took the matter under advisement. Briefs were filed on behalf of both parties. The trial court rendered judgment awarding plaintiff $1528.50, attorney’s fees of $1400.00, and expert witness fees of $750.00 each ($1500.00 total) to be cast as additional costs, with all costs to be paid by defendant.

Subsequently, each party filed a motion for a new trial. Both were denied. Plaintiff appealed the judgment and defendant answered the appeal.

ASSIGNMENTS OF ERROR

Plaintiff alleges that the trial court erred in:

1. finding there was only a partial failure of consideration, and therefore granting a reduction in price rather than a rescission of the sale;
2. failing to conclude that plaintiff would not have purchased the boat had he known of the motor mount defect;
3. that the determination of the amount of the reduction was wrong because damage to the engine was not considered; and
4. failing to award damages for plaintiff’s mental anguish and inconvenience caused by being stranded in the marsh for three hours.

Defendant, by answer, alleges that the trial court erred in:

1. awarding attorney’s fees of $1400.00 to plaintiff;
2. awarding all court costs and expert witness fees to plaintiff;
3. finding jurisdiction over the person of the defendant; and
4. in finding there was any defect in the airboat.

DEFENDANT’S ASSIGNMENT OF ERROR NO. 3

We will first consider the allegation that the trial court lacked personal jurisdiction over the defendant since an affirmative resolution of that issue could render moot the remaining issues.

We find that defendant had sufficient contacts with Louisiana to give the trial court personal jurisdiction. The following facts set forth the nature of defendant’s contacts with the state. Plaintiff knew several local people who owned Panther airboats. Defendant had a dealer/distributor in Belle Chasse, Louisiana, who had several Panther airboats on his lot and who advertised Panther airboats in the local newspaper. (A copy of which is in the record.) Defendant mailed brochures to plaintiff.

L.S.A.-R.S. 13:3201 states:

“A court may exercise personal jurisdiction over a nonresident, who acts directly or by an agent, as to a cause of action arising from the nonresident’s
“(a) transacting any business in this state.”

“The purpose of the long arm statute is to extend personal jurisdiction of Louisiana courts over nonresidents to the full limits of due process, i.e., to any nonresident who has had ‘minimal contacts’ in the state. This section must be liberally interpreted in favor of finding jurisdiction.” Thompson v. Great Midwest Fur Company, 395 So.2d 840 (La.App. 1st Cir.1981).

The facts previously outlined clearly show that defendant was transacting business in this state within the meaning of La.R.S. 13:3201(a). Defendant deliberately placed airboats in the state through its dealer with the intent to make a profit. When defendant negotiated the sale to plaintiff, the intent was to make a profit. Brochures were mailed to plaintiff to further interest him in purchasing a boat. Thus, we find that defendant had sufficient minimal contacts within the state for a Louisiana court to exercise personal jurisdiction over defendant.

PLAINTIFF’S ASSIGNMENTS OF ERROR

I.

Plaintiff alleges that the trial court erred in finding only a partial failure of consideration and thus granting a reduction in price rather than rescission of the sale. L.S.A.-C.C. art. 2543 provides that a “judge may decree merely a reduction of the price” in a suit for redhibition, if the evidence establishes only a partial failure of consideration. Therefore, the trial judge has the discretion to grant the buyer a reduction rather than rescission. Cloud v. Huffman Motor Company, Inc., 416 So.2d 266 (La.App. 3rd Cir.1982), rehearing denied July 21, 1982. Plaintiff paid $5,795.00 for the airboat and trailer. The maximum cost of repair, after the accident or incident, proved by plaintiff was less than one-fourth of the purchase price or $1,400.00. The record does not reflect any damage to or defect in the hull or the trailer. Given these facts, we would not be inclined to rescind the sale.' We find that the trial judge did not abuse his discretion.

II.

Plaintiff further alleges that the trial court erred in failing to conclude that he would not have purchased the airboat had he known of the defect. “Redhibition is the avoidance of a sale on account of some vice or defect in the thing sold, which renders it either absolutely useless, or its use so inconvenient and imperfect that it must be supposed that the buyer would not have purchased it, had he known of the vice.” L.S.A.-C.C. art. 2520.

The trial judge concluded that the airboat was defective, but apparently further concluded that the defect did not render it absolutely useless or so inconvenient that a buyer would not have purchased it. This determination is a question of fact to be decided by the trier of fact. See Cloud v. Huffman Motor Company, Inc. supra. Therefore, we must affirm the trial court’s refusal to rescind the sale as requested by plaintiff.

III.

Plaintiff argues that the trial court erred in determining the proper amount of the reduction because damage to the engine was not included.

Evidence was presented at the trial that it would cost approximately $1200-$1400 to repair the damage to the structural components and propellors of the air-boat. Plaintiff also proved that he had spent $128.50 on repairs to the airboat pri- or to the accident. No evidence was presented regarding the amount of damage and cost of repair to the engine.

The trial court awarded judgment in favor of plaintiff in the amount of $1528.50. This amount represents the maximum amount of damages which plaintiff proved. We find no error in the trial court’s determination of the amount of the reduction.

IV.

Finally, plaintiff alleges that the trial court erred in not granting damages for mental anguish and inconvenience resulting from plaintiff being stranded in the marsh for three hours. Damages for mental anguish and inconvenience are not com-pensable in an action for redhibition where the object of the contract was not for intellectual enjoyment. Meador v. Toyota of Jefferson, Inc., 332 So.2d 433 (La.1976), and Robertson v. Coleman Oldsmobile, Inc., 451 So.2d 1323 (La.App. 1st Cir.1984). Thus the trial court was correct in refusing to grant damages for these claims.

DEFENDANT’S ASSIGNMENTS OF ERROR

I.

Defendant asserts that the trial court erred when it granted plaintiff $1400.00 for attorney’s fees. Defendant argues that the attorney’s fee award is out of proportion to the amount of damages awarded and is an abuse of the trial court’s discretion.

The trial judge has much discretion in determining the amount of attorney’s fees. See Cox v. Moore, 367 So.2d 424 (La.App.2d Cir.1979), rehearing denied Feb. 28, 1979, writ denied, 369 So.2d 1364 (La.1979). Here, plaintiff introduced un-controverted testimony that his attorney had worked thirty-five hours on the case and that his usual fee was $40-$50 per hour. The amount awarded was the lesser of the two figures. Thus, the attorney’s fee award was based on time expended, not on the amount of the award.

Although the amount of attorney’s fees was more than is usual in this type of case, we cannot say that the trial court abused its discretion.

II.

Defendant also contends that the trial court erred in awarding all court costs and expert witness fees to plaintiff. The basis of this argument is that defendant offered to settle the case for approximately the same amount as the trial court judgment.

The trial judge has discretion in assessing costs. La.C.C.P. art. 1920. As a general rule, costs are taxed to the losing party. Ashley Enterprises, Inc. v. Esplanade Plaza Co., 425 So.2d 1010 (La.App. 5th Cir.1983), rehearing denied Feb. 17, 1983, writs denied, 432 So.2d 270 (La.1983).

There has been no showing that the trial court abused its discretion. Further, defendant is clearly the losing party herein. This argument is without merit.

III.

Defendant’s third assignment of error has previously been considered in this opinion.

IV.

Finally, defendant alleges that the trial court erred in finding there was a defect in the airboat.

Whether there was a defect in the airboat was a question of fact which had to be determined by the trier of fact. Ball v. Ford Motor Company, 407 So.2d 777 (La.App. 1st Cir.1981). Absent manifest error, the trial court’s findings of fact are not to be disturbed on appeal. Canter v. Koehring Company, 283 So.2d 716 (La.1973), rehearing denied, Oct. 26, 1973.

The evidence reflects that when plaintiff suddenly applied full throttle to the airboat, the engine mounting bolts tore loose. Several theories were propounded as to the cause of the mishap; however, the mere fact that the bolts dislodged under ordinary full throttle acceleration is proof in itself of a vice or defect.

Defendant contends the product was abused because plaintiff allowed some object to fly into the propeller of the airboat. The record reflects that defendant’s design provides for wire mesh protection of the propeller. The purpose of this protection is to prevent objects from flying into or being sucked into the propeller. If an object did fly into the propeller, causing the damage, it was a result of defective protection for the propeller.

We find, as did the trial court, that the airboat was defective.

For the above and foregoing reasons, the judgment of the trial court is affirmed. Costs at the trial court level are as assessed by the trial court. Costs of this appeal are to be shared equally by plaintiff and defendant.

AFFIRMED.

COLE, J., respectfully dissents, believing plaintiff is entitled to a rescission of the sale and the return of the purchase price.


source: Caselaw Access Project

author: COLE, Judge.

license: Public Domain

text:
    STATE FARM FIRE & CASUALTY COMPANY v. Leon Dudley WILLIAMS, III, et al.
    No. 83 CA 0967.
    Court of Appeal of Louisiana, First Circuit.
    June 26, 1984.

      Anthony J. Clesi, Baton Rouge, for plaintiff-appellee State Farm Fire & Cas. Co.
    Don R. Beard, John R. Shea, Baton Rouge, for intervenors-appellees Beard and Shea.
    Billy 0. Wilson, Baton Rouge, for inter-venor-appellee Gerard Furniture Co., Inc.
    Pamela Moses, Baton Rouge, for defendant Elizabeth B. Williams Riley.
    Patrick W. Pendley, Plaquemine, for in-tervenors-appellees Freeman and Pendley, Ltd.
    Leon Dudley Williams, III, Baton Rouge, pro. per.
    Michael A. Patterson, Baton Rouge, for intervenors Middleton and Wolf.
    Before COVINGTON, C.J., and COLE and SAVOIE, JJ.
   COLE, Judge.

This matter involves two appeals taken by different parties from the same judgment. The broad issues in these appeals are whether or not the trial court erred in its distribution of concursus funds and in dismissing an intervention filed against one of the defendants in the principal demand.

Leon D. Williams, III and Elizabeth B. Williams were married in July of 1979 and divorced in October of 1981. Prior to this marriage they entered into a contract providing that property acquired in a specified manner, either before or during their marriage, was to be separate property. On September 9, 1981 while the parties were still legally married, certain community and separate property owned by Mr. and Mrs. Williams was damaged in a residential fire. As a result of conflicting insurance claims filed by them regarding ownership of various items, their fire insurer, State Farm Fire and Casualty Company, deposited the full amount due under the policy into the registry of the court in order that the proper distribution thereof could be determined. Leon Williams and Elizabeth Williams (who had since remarried and will be referred to herein as Mrs. Riley) were named as defendants in this concursus proceeding. Several interventions by creditors of both Mr. Williams and Mrs. Riley were filed therein.

At trial the court had the task of determining the ownership of approximately 126 items of furniture and accessories damaged in the fire. Based upon its findings the trial court awarded 94.89% of the funds on deposit to Mr. Williams and 5.11% to Mrs. Riley. The trial court also dismissed an intervention filed against Mrs. Riley by the law firm of Middleton and Wolf. Both Mrs. Riley and Middleton and Wolf have appealed from this judgment. Each of these appeals will be treated separately.

APPEAL OF ELIZABETH B. RILEY

Mrs. Riley argues the trial court erred in failing to distribute the funds in accordance with a settlement agreement she allegedly reached with Mr. Williams in an attempt to end this litigation. The terms of this alleged settlement agreement provided Mrs. Riley was to receive 76% of the concursus funds and Mr. Williams 24%. Mr. Williams denied reaching such an agreement maintaining what purported to be his signature was in fact a forgery. The trial court pretermitted this issue, having concluded any such alleged agreement was invalid as an attempt by the parties to defraud their creditors. The result was the trial court did not actually determine whether or not the settlement agreement had been actually made by the parties.

Initially, we note the trial court should not have considered the issue of fraud without determining whether or not an agreement had actually been reached between the parties. The actual existence of a contract should first be determined before a trial court may properly reach the issue of fraud. Pedalino v. Pitre, 431 So.2d 20 (La.App. 1st Cir.1983).

Furthermore, we agree with Mrs. Riley’s contention the evidence does not adequately support the trial court’s conclusion that the alleged settlement agreement was a fraudulent attempt to defeat creditors’ claims. The apparent basis of the trial court’s conclusion was La.Civ.Code art. 1969, et seq., which prohibits debtors from contracting with others for the purpose of depriving creditors of rights they may have upon the debtor’s property. These articles establish a creditor’s right to file a revocatory action to annul such contracts. However, the trial court’s determination can not be upheld on this basis for the following reasons.

First, a revocatory action to annul this contract was not filed by any of the creditors. Second, it is impossible to determine from the evidence whether or not the elements required for a successful revocatory action were present. See La.Civ.Code arts. 1969, et seq.

Further, the evidence does not support a finding of any other type of fraud. Fraud is never presumed. It must be established by exceptionally strong and convincing evidence, well beyond a preponderance. Evans v. Ivy, 428 So.2d 886 (La.App. 1st Cir.1983). In reaching its conclusion on the fraud issue, the trial court appears to have relied heavily upon the fact Mr. Williams and Mrs. Riley made several unsuccessful attempts to withdraw the con-cursus funds after interventions were filed. Mr. Williams testified the purpose of these prior attempts was to allow him, rather than the court, to control distribution of the funds. The mere fact the parties wished to obtain possession of the concursus funds and distribute them as they chose is insufficient to establish fraudulent intent. These actions are consistent with lawful as well as fraudulent purposes. Accordingly, we find the evidence falls far short of the strong proof required to establish fraud. For this reason, we conclude the trial court erred in refusing on this basis to recognize the alleged settlement agreement.

However, it is pertinent to note at this point opposing counsel objected strenuously to the admission of this agreement into evidence and to the testimony of two witnesses with respect to it. The basis of this objection was that neither the agreement nor the witnesses were listed on the pretrial order.

There is no question these items were not in fact included on the original pretrial order prepared by the parties. However, the trial court stated Mrs. Riley (who represented herself at the trial on the principal demand) subsequently supplemented the pretrial order to include these items. Mrs. Riley was unaware of her duty to furnish opposing counsel with copies of this supplemental pretrial order. Consequently, opposing counsel first learned of the alleged agreement at trial. The trial court nevertheless allowed introduction of the agreement and permitted Mrs. Riley’s witnesses to testify regarding same.

Since counsel opposing Mrs. Riley was caught completely by surprise and had no opportunity to prepare adequately a defense and present all available evidence impugning the probative value of this agreement, we are unable and unwilling to resolve the issues arising as to its authenticity and validity on the basis of the record before us. The avoidance of surprise is one of the inherent purposes of pretrial discovery. See Naylor v. La. Dept. of Public Highways, 423 So.2d 674 (La.App. 1st Cir.1982), writs denied, 429 So.2d 127 and 429 So.2d 134 (La.1983). Thus, it would be fundamentally unfair to determine these issues when opposing counsel has had no opportunity to present all available evidence with respect thereto. Accordingly, in the interest of fairness and justice, this matter will be remanded to the trial court to allow an opportunity for evidence pertinent to these issues to be presented. See Gilcrease v. Gilcrease, 438 So.2d 658 (La.App. 2d Cir.1983), writ denied, 442 So.2d 461 (La.1983); Lefort v. Meibaum Bros., Inc., 321 So.2d 824 (La.App. 4th Cir.1975).

APPEAL OF MIDDLETON AND WOLF

The law firm of Middleton and Wolf filed an intervention against Mrs. Riley in this concursus proceeding, seeking recovery of legal fees allegedly owed by her. In support of their intervention, they rely upon an act of assignment dated June 1, 1982 by which Mrs. Riley assigned them her interest in the concursus proceedings to the extent of her indebtedness for legal fees. Mrs. Riley admits executing the act of assignment, but claims she did so under duress. Additionally, she argues the fees charged by Middleton and Wolf were excessive.

The trial court did not reach these issues in view of its decision not to allow “... any judgment for Middleton & Wolfs services since there is a pending suit seeking the same relief and said claim being subject to a reconventional demand.” The pending suit referred to was a separate suit filed by Middleton and Wolf against Mrs. Riley for collection of two promissory notes given in payment for a portion of the same legal fees referred to in the act of assignment. It was filed subsequent to their intervention herein. Basically, the trial court supplied a plea of lis pendens on behalf of Mrs. Riley. Middleton and Wolf argue the trial court erred in dismissing their intervention on the basis of the pend-ency of the later suit on the notes. We agree.

First, lis pendens is an objection raised through the declinatory exception which is considered waived if the defendant makes an appearance without pleading it. La. Code Civ.P. arts. 925(3) and 1034. La.Code Civ.P. art. 531 provides that when a defendant fails to raise an exception of lis pen-dens “... the plaintiff may continue the prosecution of any of the suits, but the first final judgment rendered shall be conclusive of all.” See Morice v. Morice, 386 So.2d 913 (La.1980). Accordingly, since Mrs. Riley failed to file an exception of lis pendens in the present case, Middleton and Wolf clearly had the right to continue prosecution of its intervention.

Furthermore, even if an exception of lis pendens had been filed herein, it is clear it would not have been well-founded. An exception of lis pendens may properly be granted only when there are two or more suits pending: 1) between the same parties in the same capacities; 2) for the same object; and, 3) on the same cause of action. La.Code Civ.P. art. 531. Middleton and Wolfs cause of action in this intervention is based upon an act of assignment allegedly giving it an interest in the present suit. Its cause of action in the suit for collection of the promissory notes is entirely different, being based upon the said notes. Thus, one of the essential elements required to maintain an exception of lis pen-dens is missing in the present case. Additionally, La.Code Civ.P. art. 531 provides a defendant may have all but the first suit dismissed through the plea of lis pendens. Assuming, arguendo, the two suits were pending on the same cause of action, Mrs. Riley’s remedy was to file the declinatory exception in the suit on the notes, not in these initial intervention proceedings.

For these reasons, we find the trial court erred in dismissing Middleton and Wolf’s intervention on the basis of the pendency of the suit on the notes. Since the trial court did not, in view of its ruling, reach the substantive issues raised by this intervention, these issues should be resolved upon remand of this matter.

DECREE

The judgment of the trial court is vacated and set aside and this matter is remanded to the trial court for the following limited purposes: 1) to permit the trial court to conduct an evidentiary hearing to determine the authenticity and validity of the alleged settlement agreement relied upon by Elizabeth Riley; and, 2) to permit the trial court to resolve issues relative to the validity of the act of assignment relied upon by Middleton and Wolf and to determine the amount of legal fees they are entitled to recover. The trial court is to admit whatever additional evidence is necessary to make these determinations. Following determination of these issues, the trial court is to render a judgment appropriate to its findings decreeing the rights of the parties and the several creditor-inter-venors. Assessment of all costs is to await final disposition of this litigation.

JUDGMENT VACATED AND SET ASIDE; CASE REMANDED.

      . Mrs. Riley alleges this settlement agreement was not reached until sometime after the original pretrial order was submitted to the trial court.

      . We note also an attempt by us to reach a conclusion based upon the present record, as to the validity vel non of the purported agreement, would include necessarily credibility considerations, the initial prerogative and function of the trial court.

      .In view of our finding on this issue, we preter-mit the other issues raised on appeal by Mrs. Riley.

      . The trial court also found Middleton and Wolf failed to prove the amount owed the firm “for which it would have a priority claim under R.S. 9:5001." Assuming Middleton and Wolf could assert the statutory privilege for attorney fees provided by La.R.S. 9:5001, it would relate only to a part of the legal services rendered Mrs. Riley by Middleton and Wolf. In any event, Middleton and Wolf never asserted a claim under La.R.S. 9:5001. They relied upon the act of assignment.

      . In view of our finding on this issue, we preter-mit the other issues raised on appeal by Middleton and Wolf.


author: DOMENGEAUX, Judge.

text:
    Freddie A. COUTEE, et al., Plaintiffs-Appellants, v. AMERICAN DRUGGIST INSURANCE COMPANY OF CINCINNATI, et al., Defendants-Appellees.
    No. 83-781.
    Court of Appeal of Louisiana, Third Circuit.
    June 27, 1984.
    Writ Denied Oct. 26, 1984.

      Ford & Nugent, Howard N. Nugent, Jr., Alexandria, for plaintiffs-appellants.
    Stafford, Stewart & Potter, Russell Potter, Alexandria, for defendants-appellees.
    Before DOMENGEAUX, FORET and STOKER, JJ.
   DOMENGEAUX, Judge.

Appellants Freddie A. Coutee and Rita Coutee, individually and on behalf of their minor children, and their homeowner’s insurer, American Bankers Insurance Company (by subrogation), filed a petition for damages against defendants Rapides Parish Sheriff Marshall T. Cappel, former deputy Bruce Vanderhoeven, and their liability insurers, American Druggist Insurance Company of Cincinnati and Lincoln Insurance Company. Plaintiffs-appellants alleged that on July 20, 1981, Rapides Parish Sheriff’s Deputies used excessive force in executing a search warrant which caused damage to the inside of their trailer home due to the discharge of a tear gas cannis-ter. Plaintiffs also sought damages for physical pain and suffering and mental anguish. The law enforcement officers, also in possession of an arrest warrant, were attempting to arrest fugitive Ronnie Wilkinson (brother of Rita Coutee plaintiff-appellant), on outstanding charges of aggravated kidnapping and simple assault.

The trial judge determined that the law enforcement officers, based upon all the facts and circumstances known to them at the time, acted upon a reasonable belief that the fugitive was inside the trailer. The trial judge concluded that the use of a tear gas cannister to gain access to the trailer was reasonable and further, that it was the best means possible to execute the search warrant [given the exigencies of the situation]. The trial judge also found that based upon the totality of the circumstances, the force used was not excessive or unreasonable. Plaintiffs’ suit was dismissed.

The plaintiffs-appellants have devolutively appealed, alleging error on the part of the trial court as follows:

1. In failing to find that the defendants, possessing the search warrant admitted into evidence, engaged in an unreasonable search and excessive use of force and violence against the plaintiffs’ home;

2. In improperly using evidence taken in subsequent proceedings to decide matters in the case at bar and that such use without notice to the parties violated basic due process;

3. In failing to permit several witnesses to testify;

4. In failing to award damages to the plaintiffs.

FACTS

The trial judge summarized the incidents of July 20, 1981, as follows:

“On July 20,1981, State Trooper Bruce Vanderhoeven was a Rapides Parish Deputy Sheriff. Sometime in the afternoon of that day, he received a radio call from Deputy Eric Roy Scroggs, shift supervisor. Scroggs informed Vanderhoe-ven that he had earlier that day received an anonymous telephone call from a woman calling herself ‘a friend of the Sheriff’s Department.’ This woman informed him that she knew they had been looking for Wilkinson and that he was in the Coutees’ trailer on Wilson Road in the Kolin community. Scroggs gave Vanderhoeven directions to a house on Wilson Road (the residence of Wilkinson’s and Rita Coutee’s mother), behind which the trailer was situated. Assistant District Attorney Tom Yeager was with Vanderhoeven when Scroggs called. Together they drove out to the Coutee trailer and they were soon joined by Deputy Mike Stevens and Reserve Officer Dana Rachal.
The deputies reached Wilson Road about 5:00 or 5:30 P.M. They checked out the Reeves home and the trailer. No one answered their knocks at the first residence, so they went to the trailer. There was no response there, either to their knocking and announcements that they were law enforcement officers looking for Ronnie Wilkinson. They heard no sound inside but the air conditioning unit was on. A black Mazda pickup determined to be the property of Wilkinson, was parked behind the trailer. The driver’s window was rolled down and the keys were in the ignition. Vanderhoeven and Yeager then drove to the home of Carl and Katherine Ducote on Wilson Road, while Rachal and Stevens stayed at the trailer. Although she was relunc-tant to talk, Mrs. Ducote told Vanderhoe-ven that she had seen Wilkinson in the area sometime earlier in the day.
The two men then returned to the Cou-tee trailer and knocked at the door, but received no response. The deputies and Yeager then positioned their two [police vehicle] units near the joinder of Wilson Road and Brandon Road and waited there, out of view of the trailer approximately 15 to 20 minutes, hoping that Wilkinson would think they had gone and attempt to drive away. About this time they stopped two vehicles exiting Wilson Road; one driven by K. Mark Williams and one driven by Kenneth Wilson, stepbrother to Rita Coutee and Ronnie Wilkinson, with his girlfriend Darlene Hud-geons as a passenger.
Upon their return to the trailer, the deputies noticed that the keys had been taken out of the ignition in the Mazda and the window had been rolled up and the vehicle locked. However, the trailer air conditioner was still operating. The decision was made that Vanderhoeven and Yeager would return to Alexandria and obtain a search warrant to enter the trailer. Before leaving, they cut the electricity off in the trailer and called Deputy Lachney, assistant shift supervisor, telling him to bring a tear gas canister and the means to fire it over to the Coutee home. Deputy Marvin Paulk, acting shift supervisor that day, arrived at about that time. Paulk drove around while the two went for the search warrant and Stevens and Rachal watched the trailer for any signs of life inside.
Vanderhoeven and Yeager went to the Courthouse to prepare the search warrant. While Yeager was typing it up, Deputy Lachney called to relay a request by Phillip Oestricher, an investigator for the District Attorney’s Office, for Van-derhoeven to call him. Contacted by telephone, Oestricher related that he had just received a telephone call from Bobby Michiels, a Reserve Officer in the Pine-ville Police Department. Michiels had told Oestricher that someone he knew and believed to be trustworthy had told him he had seen Wilkinson inside the Coutee trailer at the window that day with a gun in his hand. This information was not included in the affidavit for the search warrant. From the Courthouse, Vanderhoeven and Yeager went to the home of Judge Alfred Mansour, who signed the warrant. They then returned to the trailer.
At that point, it was close to dusk. Present at the trailer were Deputies Van-derhoeven, Stevens, Paulk and Lachney plus Reserve Officer Rachal and Assistant District Attorney, Tom Yeager. Once again, the deputies knocked on the trailer door, identifying themselves as police officers and telling Wilkinson to come out. There was no response from the trailer. The deputies then made a collective decision to use the teargas brought to the scene by Lachney. Both supervisors present, Paulk and Lachney approved the decision, in accordance with Department policy. Vanderhoeven fired the tear gas canister through the side window of the trailer, and the deputies waited with guns drawn. However, no one came out of the trailer and the deputies did not find Wilkinson when they entered the trailer and searched the rooms.
As a result of the tear gas dispersal in their trailer, plaintiffs allege that the Coutee family was unable to return to their home for 26 days; that all foodstuffs, except for canned goods, were contaminated and had to be thrown out; that they had to hire a janitorial service to clean the carpet, curtains and furniture; and that one child suffered a rash and another spit blood and had a nosebleed. Plaintiffs pray for an award of damages in the total amount of Thirty-Seven Thousand, Four Hundred Seventy-Five Dollars and 82/100 ($37,475.82).”

REASONABLE FORCE PURSUANT TO A SEARCH WARRANT

The plaintiffs failed to raise the legality of the search warrant as an issue contained in the pleadings. The trial court sustained an objection by the defendants when the plaintiffs attempted to introduce evidence concerning the validity of the search warrant.

It is within the discretion of the trial judge to admit or disallow evidence subject to an objection based upon the scope of the issues and pleadings. Mouledous v. Poirier, 221 So.2d 291 (La.App. 4th Cir.1969). It is also discretionary for the trial judge to determine whether evidence is encompassed by the general issues raised in the pleadings. Huhn v. Marshall Exploration, Inc., 337 So.2d 561 (La.App. 2nd Cir.1976), writ denied, 339 So.2d 854 (La.1976).

In the instant case the trial judge found that plaintiffs’ failure to specify allegations relative to the search warrant, combined with the failure to amend the petition, necessitated the exclusion of evidence regarding the validity of the search warrant. Roy v. Commercial Union Assurance Company, 385 So.2d 1273 (La.App. 3rd Cir.1980); Marceaux v. Reese, 365 So.2d 504 (La.App. 3rd Cir.1978); Wanda Petroleum Company v. Mac Drilling, Inc., 353 So.2d 474 (La.App. 3rd Cir.1977), writ denied, 355 So.2d 258 (La.1978). The trial court did not abuse its discretion when it excluded the evidence concerning the search warrant for the trailer home.

The issue on appeal focuses on the reasonableness of the entry and search. The trial court recognized the divergent interests of the parties and the need for balancing the individual’s rights against the duty of the law enforcement officers.

The trial court found that the deputies, acting pursuant to reasonably trustworthy information, did not use excessive or unreasonable force in executing the search warrant. The trial court relied upon La.C. Cr.P. Art. 164 which provides:

“In order to execute a search warrant a peace officer may use such means for force as are authorized for arrest by Title V.”

Title V, La.C.Cr.P. Art. 220 authorizes a peace officer to “use reasonable force to effect the arrest and detention, and also to overcome any resistance or threatened resistance. ...”

The Louisiana Supreme Court has stated the standard for executing search warrants. The search of a residence must be carried out in such a manner so that due respect is given to the property. In order to determine whether the manner used in executing the search warrant was unreasonable force, it is necessary to examine the totality of the facts and circumstances of each case. State v. Thomas, 329 So.2d 704 (La.1976); State v. Thorson, 302 So.2d 578 (La.1974).

A court must evaluate the officer's actions against those of ordinary, prudent, and reasonable men in the same position as the officers and with the same knowledge as the officers. Kyle v. City of New Orleans, 353 So.2d 969 (La.1977); Picou v. Terrebonne Parish Sheriff's Office, 343 So.2d 306 (La.App. 1st Cir.1977), writ denied, 345 So.2d 506 (La.1977). See Joseph, Tort Liabilities of Law Enforcement Officers: State Remedies, 29 La.L.Rev. 130 (1968).

Use of force to make an arrest is a legitimate police function. However, the use of excessive or unreasonable force renders both the officer and his employer liable for injuries and damages which result. Jones v. City of Lake Charles, 295 So.2d 914 (La.App. 3rd Cir.1974); Taylor v. City of Baton Rouge, 233 So.2d 325 (La.App. 1st Cir.1970); writ denied, 256 La. 253, 236 So.2d 32 (1970).

The trial judge based his decision upon the facts as known to the officers at the time the warrant issued and the search conducted. The trial judge found their actions were supported by the following facts:

“1) Two warrants for Wilkinson’s arrest were outstanding at the time on charges of aggravated kidnapping and simple battery; 2) The Sheriff’s Department had received a tip that Wilkinson had been seen earlier that day at the home of his sister, Rita Coutee; 3) Upon investigating the tip, deputies discovered Wilkinson’s vehicle parked behind the trailer with a window down and the keys in the ignition; 4) The door to the trailer was locked, the air conditioner was running, and no one responded to their knocks and shouts; 5) A neighbor of the Coutee’s had said that she had seen Wilkinson in the area of the Reeves’ and Coutee’s homes that day; 6) From Oestricher, the deputies had received a tip that Wilkinson had been seen inside the trailer with a gun that day; 7) After having been out of direct view of the trailer for about 15 to 20 minutes, the deputies found the keys to Wilkinson’s vehicle gone and the window rolled up and vehicle locked when they returned; 8) Wilkinson had a bad reputation and had been the subject of numerous complaints requiring police investigation and judicial action. In addition, he was known to be proficient with firearms.”

The Court found that the officers were entitled to weigh their own safety, as well as that of the fugitive and any innocent bystanders when they devised their means of entry to the trailer to execute the search warrant. In the instant case the Court determined that the use of tear gas was both necessary and reasonable considering the totality of the circumstances.

We find no error.

IMPROPER USE OF EVIDENCE

The appellants allege that the Court erroneously took judicial notice of evidence in other proceedings to decide the case at bar.

The appellants contend that the trial judge relied upon evidence which was never introduced into the court proceedings. The incident at issue occurred when the trial judge referred to a past event that the judge himself had been involved in as a deputy sheriff when he attempted to serve civil papers. While it is improper for a trial court to use evidence taken in subsequent judicial proceedings to decide matters, mere reference by the trial judge to a personal experience does not, in our opinion, constitute evidence which would require notice to the parties in order to maintain basic due process. U.S.C. Const. Amendment 14; Lambert v. Lambert, 425 So.2d 270 (La.App. 3rd Cir.1982), writ denied 430 So.2d 84 (La.1983).

Additionally, in his written reasons for judgment, the trial judge explicitly referred to the law and facts presented to the Court. The trial judge continued this reasoning and stated that the result in the case centered on the credibility of the officers and witnesses.

The factual determinations and conclusions of law were supported by the testimony adduced at trial.

We find no error.

VIOLATING SEQUESTRATION

Appellants argue that the trial court’s exclusion of witnesses who violated the rule of sequestration was erroneous because the violation was unintentional.

The procedural device of sequestration can be traced to Art. 371 of the 1928 Code of Criminal Procedure. Under that statute a witness who violated the sequestration order still could be called to testify if it were demonstrated that the violation took place without the knowledge and connivance of the party calling him. Hopkins v. Dept. of Highways, 350 So.2d 1271, 1273 (La.App. 3rd Cir.1977); State v. Wheeler, 173 La. 753, 138 So. 656 (1931). The new Code of Criminal Procedure Article 764 grants wide discretionary power to the trial court for modifying the sequestration order.

The same broad discretion for sequestration of witnesses is expressly authorized by La. Code of Civil Procedure Article 1631, as amended in 1966.

La.C.C.P. Art. 1631 provides:

“The court has the power to require that the proceedings shall be conducted with dignity and in an orderly and expeditious manner, and to control the proceedings at the trial, so that justice is done.
On its own motion the court may, and. on request of a party the court shall, order that the witnesses, other than parties, be excluded from the courtroom or from a place where they can see or hear the proceedings, and refrain from discussing the facts of the case with anyone other than counsel in the case. In the interest of justice, the court may exempt any witness from its order.”

The purpose of the rule of sequestration ‘is two-fold. It serves to prevent the witnesses from being influenced by prior testimony and it strengthens the role of cross-examination.

When the rule of sequestration has been violated, it is within the sound discretion of the trial court to disqualify a witness from testifying. Hopkins v. Department of Highways, 350 So.2d 1271 (La.App. 3rd Cir.1977); Aetna Casualty & Surety Co. v. Braud, 327 So.2d 183 (La.App. 4th Cir.1976). This Court explained the intended application of La.C.C.P. Art. 1631:

“Article 1631 of the Code of Civil Procedure does not specify the sanctions available to the court when there has been a violation of the sequestration order. There is a paucity of decisions on the subject and courts seek enlightenment from cases developed in the criminal sphere.
Aetna Casualty and Surety Company v. Brand, 327 So.2d 183, 186 (La.App. 4th Cir.1976). A review of the criminal cases indicates that three sanctions are available. A violating witness, of course, can be placed in contempt. He can also be allowed to testify with the violation going to the credibility of the evidence or can be disqualified altogether. For example, in State v. Badon, 338 So.2d 665 (La.1976), the Supreme Court found no error in allowing a violating witness to testify because the trial judge determined that the testimony was based upon the witness’ own memory. In State v. Watson, 305 So.2d 923 (La.1974), the Court approved the trial judge’s instructions to the jury to disregard the testimony of witnesses who had violated the rule. In State v. Holmes, 305 So.2d 409 (La.1974), the Court approved the disqualification of a sequestered witness who had remained in the courtroom throughout the trial. In short, the choice of remedy imposed for violation of a sequestration order rests in the sound discretion of the trial judge. See Work of the Louisiana Appellate Courts for the 1974-75 Term — Criminal Trial Procedure, 36 La.L.Rev. 605, 621-624 (1976).
Giving wide latitude to the trial judge conforms to our reading of Article 1631 of the Louisiana Code of Civil Procedure. The provision makes no specification regarding the penalties for violation of a sequestration order. In Benoit v. Camelle, 300 So.2d 850 (La.App. 3rd Cir.1974), writ denied, 304 So.2d 668 (La.1974), this court approved the disqualification of a witness who had violated the sequestration order. In Aetna Casualty and Surety Company v. Braud, supra, the Fourth Circuit permitted the trial judge to let a violation of the sequestration order go to the weight of the testimony. Finally, Article 225 of the Louisiana Code of Civil Procedure authorizes punishment for contempt when an order of the court is violated. Thus, all three alternatives are available to the trial court when there is a violation.” Hopkins, at 1274.

According to the holding of Hopkins, the trial judge has further discretion to impose sanctions when there has been a deliberate violation of the sequestration order. The trial judge is in the best position to determine whether such violation resulted from an irregularity or ignorance of the sequestration rule, or whether the violation was intentional.

In the instant case, the trial judge stated in his written reasons for judgment that he disregarded certain testimony because of deliberate violations of the sequestration order. He then considered the credibility of all the witnesses who appeared at trial and based his findings of fact and conclusions of law on the testimony rendered. Plaintiffs were allowed to make a proffer of testimony from the disqualified witnesses under La.C.C.P. Art. 1636. La.C.C.P. Art. 1636 provides:

“When a court rules against the admissibility of any evidence, it shall either permit the party offering such evidence to make a complete record thereof, or permit the party to make a statement setting forth the nature of the evidence. In all cases the court shall state the reason for its ruling as to the inadmissibility of the evidence. This ruling shall be reviewable on appeal without the necessity of further formality.
If the court permits a party to make a complete record of the evidence held inadmissible, it shall allow any other party to make a record in the same manner of any evidence bearing upon the evidence held inadmissible.”

We have reviewed this ruling and find that the disqualification of the witnesses was an appropriate sanction.

“Although disqualification of witnesses may be the most severe penalty, the trial judge was more familiar with the physical surroundings of his courtroom and he was in a better position than us in determining the severity of the violation. We will not substitute our judgment for that of the trial court.”
Hopkins, at 1275.

We find no error in the actions by the trial court.

FAILURE TO AWARD DAMAGES

The trial court concluded that the deputies acted reasonably according to the information available to them. He determined that the deputies did not exceed the limits of police restraint and therefore no award of damages is due.

The use of force required to make an arrest is a legitimate police function. If the officers used reasonable and necessary force, neither they nor their employer are liable for any injuries which result. See Kyle v. City of New Orleans, 353 So.2d 969 (La.1977).

DECREE

For the above and foregoing reasons, the judgment of the trial court is affirmed. Costs, both at trial and on appeal, are assessed against plaintiffs-appellants.

AFFIRMED.


author: GUIDRY, Judge.

text:
    Willie BURLEIGH, et ux., Plaintiffs-Appellants, v. STATE FARM INSURANCE, et al., Defendants-Appellees.
    No. 84-471.
    Court of Appeal of Louisiana, Third Circuit.
    July 17, 1984.
    Rehearing Denied Aug. 13, 1984.
    Writ Granted Nov. 2, 1984.
    David L. Carriere, Opelousas, for plaintiff-appellant.
    David Kaufman, Allen, Gooch, Bourgeois, Breaux & Robison, P.C., Frank Flynn, Lafayette, for defendant-appellee.
    Before GUIDRY, CUTRER and STOCK-ER, JJ.
   GUIDRY, Judge.

MOTION TO DISMISS

Defendants-appellees, State Farm Mutual Automobile Insurance Company and Continental Insurance Company, move to dismiss the appeal of plaintiff-appellants, Willie and Emmeline Burleigh, as not having been, timely perfected.

The Burleighs filed suit against State Farm and Continental for personal injuries resulting from an automobile accident. On February 22, 1982, a judgment was signed based on a jury verdict rendered in favor of the Burleighs and against State Farm and Continental. On the same day, the Bur-leighs filed a motion for a new trial complaining that the award was insufficient. After arguments on March 29, 1982, the motion was taken under advisement. The trial court rendered written reasons for judgment dated July 2, 1982. Said reasons stated that the motion for new trial was denied. The minute entry of July 6, 1982, reflects that the reasons for judgment were filed and served on all attorneys of record.

On July 19, 1982, the Burleighs filed a motion to reargue their motion for a new trial. Further on the same day, the Bur-leighs filed a motion for a partial new trial on the basis of newly discovered evidence. Said motion was not set for hearing because the medical evidence was not yet complete. Thereafter, the trial court heard arguments on the motion for reargument. On October 22, 1982, the trial court issued written reasons denying the motion for reargument. The minute entry of October 22, 1982, reflects that the reasons for judgment were filed and served on all attorneys of record.

In both of the written reasons herein-above referred to, the trial judge instructed defense counsel to prepare and submit a judgment denying the motion for a new trial. The defense counsel failed to submit any such judgment. As a result, on March 12, 1984, the trial court prepared and filed a formal judgment denying the motions for new trial and for rearguments filed by the Burleighs. On March 26, 1984, the Bur-leighs filed a devolutive appeal. State Farm and Continental subsequently filed a motion to dismiss the appeal on the grounds that the application for a devolu-tive appeal was not timely as required by the Code of Civil Procedure.

Article 2087 of the Louisiana Code of Civil Procedure provides in pertinent part:

“Except as otherwise provided in this Article or by other law, an appeal which does not suspend the effect or the execution of an appealable order or judgment may be taken within sixty days of:
(2) The court’s refusal to grant a timely application for a new trial, if the applicant is not entitled to notice of such refusal under Article 1914; or
(3) The date of the mailing of the court’s refusal to grant a timely application for a new trial, if the applicant is entitled to such notice under Article 1914.”

At the outset, the motion for rear-gument was in effect a second motion for a new trial, which our law does not permit. In Palmer & Palmer v. United Investment Corporation, 255 So.2d 611 (La.App. 1st Cir.1971), the First Circuit stated:

“There is only one delay for taking a devolutive appeal, that is, a period of ninety days and it begins to run from the date of the denial of a new trial or the mailing of the notice of such refusal where it is requested. LSA-C.C.P. arts. 1914 and 2087. This rule is well grounded in reason, logic and law, as otherwise, an unsuccessful party to litigation could interminably delay and avoid a judgment from becoming subject to execution.”

Thus, it appears that the denial of the motion for reargument can not be considered in determining the timeliness of the appeal.

As previously stated, the initial application for a new trial was denied in the written reasons of the trial court rendered on July 2, 1982, and filed into the record on July 6, 1982. A judgment denying a new trial need not be written or signed. It is sufficient that it be made as a minute entry. Boyd v. Fourchon, Inc., 408 So.2d 380 (La.App. 1st Cir.1981); Reed’s Elec. Co. v. Royal Furniture Co., Etc., 401 So.2d 416 (La.App. 1st Cir.1981). Therefore, for the purpose of determining the timeliness of the appeal, the motion for new trial was denied on July 6, 1982, the day the reasons for judgment were noted in the minute entries of the trial court. The sixty day delay allowed the Burleighs in which to perfect their appeal commenced on July 7, 1982. We need not discuss the question of whether notice is required since a copy of the reasons for judgment was mailed to all attorneys of record on July 6, 1982. The delays for perfecting a devolu-tive appeal expired on September 6, 1982. The Burleighs motion for an appeal was not filed until March 26, 1984, which was clearly late.

The motion of the defendants-appellees, State Farm Mutual Automobile Insurance Company and Continental Insurance Company, to dismiss the appeal will be maintained.

APPEAL DISMISSED.


author: GULOTTA, Judge.

text:
    SUCCESSION OF Regina DUBOS.
    No. C-2542.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 19, 1984.

      W.L. West, New Orleans, for defendant-relator.
    Koorie & Loup, New Orleans, for Heirs of Regina Dubos.
    James J. Grevemberg, New Orleans, for respondent, Succession of Regina Dubos.
    GULOTTA, BARRY and CIACCIO, JJ.
   GULOTTA, Judge.

In this suit for damages from the unauthorized sale of securities belonging to a succession, defendant-relator, Merrill Lynch, Pierce, Fenner & Smith, Inc. (Merrill Lynch), seeks supervisory writs to set aside the trial court’s judgment denying its exceptions of prescription, no cause of action and no right of action.

The petition filed by the co-dative testamentary executor alleges, in pertinent part, that Merrill Lynch was “negligent” as a stockbroker in its handling of the sale of certain securities and trust funds made by the former executor of the succession. According to the petition, Merrill Lynch “failed to meet the obligations as a fiduciary and observe the fidelity imposed upon brokers by law” by not requiring a judgment of court authorizing the sale and was liable in solido with the former executor for resulting damage to the succession heirs.

In support of its exception of prescription, relator contends that the petition filed in 1983, which alleges relator’s “negligence” concerning securities transactions occurring in 1980, fails to meet the one year statute of limitations for tort actions under LSA-C.C. Art. 3492. We disagree.

The same acts or omissions may constitute breaches of both general and contractual duties, and give rise to actions both in tort and in contract. A plaintiff may assert both actions without the necessity of pleading the theory of his case. Free v. Franklin Guest Home, Inc., 397 So.2d 47 (La.App. 2nd Cir.1981), writ denied 401 So.2d 975 (La.1981). Although the petition alleges that relator was “negligent” in handling the sale of the securities without first requiring a judgment of court authorizing the sale, it further alleges that relator thereby “failed to meet the obligations as a fiduciary and observe the fidelity imposed upon brokers by law”. We interpret this pleading as a personal action for relator’s breach of contract or obligation to perform its fiduciary duty as a securities broker, which is subject to a ten year prescriptive period. LSA-C.C. Art. 3499; Kline v. Globe Automobile Finance Company, 100 So.2d 517 (La.App.Orl.1958).

We likewise find no error in the trial judge’s denial of relator’s exceptions of no cause and no right of action. In support of these exceptions, relator contends it had no actual knowledge that the former executor had not obtained proper court authorization to sell the securities in the succession’s account or had breached his fiduciary duties as executor. Citing LSA-R.S. 9:3833 and 3837, under the Uniform Law for Simplification of Fiduciary Security Transfers, relator contends it is exculpated from liability under these circumstances.

An exception of no cause of action is decided upon the face of the plaintiff’s petition, taking all of its well-pleaded allegations of fact as true. Mott v. River Parish Maintenance, Inc., 432 So.2d 827 (La.1983); Leenerts Farms, Inc. v. Rogers, 421 So.2d 216 (La.1982). Accepting as true plaintiff’s allegations of damage caused by Merrill Lynch’s failure to meet its “obligations as a fiduciary and observe the fidelity imposed upon brokers by law”, we conclude the petition states a cause of action.

We likewise reject relator’s arguments concerning respondent’s right of action. An exception of no right of action is designed to question whether the plaintiff has any interest in enforcing judicially the right asserted. Lambert v. Donald G. Lambert Const. Co., 370 So.2d 1254 (La.1979); Gaudet v. Bd. of C. for Pontchartrain Levee, 339 So.2d 931 (La.App. 4th Cir.1976).

Clearly, a co-dative testamentary executor has a right to assert a claim against a securities broker for a breach of duty involving the sale of securities owned by the succession. LSA-C.C.P. Art. 3211 imposes upon a succession representative the duty to possess the property of the succession and to “enforce all obligations in its favor.” LSA-C.C.P. Art. 3196 likewise provides that in the performance of his duties the representative “may exercise all procedural rights available to a litigant.” Although the Uniform Law for Simplification of Security Transfers, cited by relator, may be relevant to a defense at a trial on the merits of plaintiffs claim, relator cannot rely on these statutory provisions to defeat (on an exception of no right of action) plaintiffs lawful right to assert a claim on behalf of the succession.

For the foregoing reasons, we find no error in the trial judge’s denial of relator’s exceptions of prescription, no cause of action and no right of action. Although, from a jurisprudential standpoint, we could have declined to exercise our discretionary supervisory jurisdiction in this writ application from an interlocutory judgment, we have considered it on its merits in the belief that “judicial efficiency and fundamental fairness to the litigants will be served by our written opinion concerning relator’s peremptory exceptions. See Herlitz Construction Co. Inc. v. Hotel Investors of New Iberia, Inc., 396 So.2d 878 (La.1981); Mangin v. Auter, 360 So.2d 577 (La.App. 4th Cir.1978).

Accordingly, the application is denied.

WRITS DENIED.


text:
    STATE of Louisiana v. Sean S. BROGAN.
    No. CR83-667.
    Court of Appeal of Louisiana, Third Circuit.
    July 25, 1984.
    Writ Denied Oct. 5, 1984.

      George Guidry, Atty. At Law, Alexandria, Paul H. Kidd, Kidd, Kidd, Jones & Kidd, Monroe, for defendant-appellant.
    G. Earl Humphries, III, Asst. Dist. Atty., Alexandria, for plaintiff-appellee.
    Before GUIDRY, CUTRER and STOKER, JJ.
   GUIDRY, Judge.

Defendant, Sean Brogan, was charged by a bill of information with two counts of attempted first degree murder, a violation of La.R.S. 14:27 and 14:30. After pleading not guilty, he was found guilty as charged by a twelve person jury. Defendant was sentenced to serve two twenty year terms at hard labor to run concurrently.

Defendant was convicted on October 18, 1982 and sentenced on October 29, 1982. Defendant failed to timely appeal but subsequently applied to the Supreme Court of Louisiana for an out-of-time appeal. The application was granted and transferred to this court. This court granted defendant an out-of-time appeal on April 21, 1983. That appeal is now before us on the following assignments of error:

(1) Defendant was denied due process of law, in that, he received ineffective legal representation due to defense counsel’s failure to discover and utilize evidence of mental and emotional distress relevant to a determination of guilt and sentencing; and,
(2) The trial judge erred in imposing an excessive and disproportionate sentence upon a youthful first offender without fully conplying with appropriate constitutional and statutory sentencing criteria.

On November 21, 1983, defendant filed a motion for a limited remand for an eviden-tiary hearing on assignment of error no. 1.

FACTS

The following facts were established by the evidence at trial. At the time of the alleged crimes, the defendant, Sean Brogan, was living with Yvonne Villafana and the two children of her former marriage to Patrick Lyenfong, of whom she had legal custody. After their divorce, Yvonne Villa-fana and Patrick Lyenfong became involved in a dispute over custody of the two children. On May 24, 1982, a hearing was held to determine the visitation rights of Patrick Lyenfong and Maureen Lyenfong, his mother and the grandmother of his two children. The defendant was present at this hearing. The trial court granted visitation rights to the Lyenfongs, which were to begin the following day. After trial, Yvonne Villafana and Sean Brogan gave the Lyenfongs directions to the house where they were staying.

On May 25, 1982, at approximately 12:10 in the afternoon, the Lyenfongs arrived at Yvonne’s house pursuant to the court order of visitation. The Lyenfongs remained in the truck and honked the horn because there was a large dog in the yard. Sean Brogan came out and told the Lyenfongs that Yvonne was dressing the children and would be out in a few minutes. After 30 to 45 minutes, Patrick started the truck to turn on the air conditioner. Suddenly, the truck shook, and at the same time a loud blast was heard. Stunned momentarily, Patrick then realized his mother had been shot and attempted to leave the area. Another shotgun blast was heard, this time hitting Patrick. Looking toward the direction of the shots, Maureen Lyenfong saw the defendant fire the second shotgun blast. Patrick, still able to drive, was attempting to escape when he saw the defendant with a pistol firing at the truck. Patrick and Maureen were both wounded with a .22 caliber pistol. The defendant then ran up to the driver’s side of the truck and smashed the glass with the now empty pistol. Patrick managed to start the truck. He then drove three or four miles to a hardware store in Hineston. While still in the vehicle, and being attended to by several citizens, Patrick was approached by the defendant who had arrived in his automobile. The defendant leaned into the vehicle and stabbed Patrick three (3) times in the chest.

The defendant then returned to Yvonne’s house. John Salley and Yvonne Villafana were there. The defendant washed the blood off his knife and hands and convinced Mr. Salley to follow him to a back road in the woods where he left his car and then to drive him to a place near his sister’s house. Defendant arrived at his sister’s home by way of the swamp. In the meantime, his brother-in-law, William David Roland, III, had been advised that the police were looking for the defendant. After finding the defendant at his home, Roland drove the defendant to the police, who were at a grocery store in Seiper. The defendant was placed under arrest.

ASSIGNMENT OF ERROR NO. 1

Defendant, in brief, concedes that the weight of the evidence against him was overwhelming. The gist of his averment of ineffective counsel centers on one area, the failure of his trial counsel to provide expert testimony of a mental or emotional defect sufficient to negate specific intent and/or to reduce the degree of the crime.

An ineffective assistance of counsel claim is properly raised by writ of habe-as corpus in the trial court. State v. Seiss, 428 So.2d 444 (La.1983) and cases cited therein. However, where the record discloses evidence sufficient to decide the issue of ineffective assistance of counsel, and that issue is raised by assignment of error on appeal, in the interest of judicial economy, the issue will be considered. State v. Seiss, supra; State v. Ratcliff, 416 So.2d 528 (La.1982).

In this case, the relief requested by defendant, both by appeal and by motion, is for a remand for a full evidentiary hearing, contending that the question presented poses a question of fact as well as a question of law.

Despite this contention, we find defendant’s averment without merit as a matter of law. Therefore, in the interest of judicial economy, review of defendant’s ineffective assistance of counsel claim can be made on the present record without the necessity for a remand for a full evidentia-ry hearing.

■ Defendant failed to plead not guilty and not guilty by reason of insanity. In brief, defendant appears to concede the absence of a complete defense, asserting that an emotional disturbance insufficient to constitute legal insanity might nonetheless serve to diminish the requisite degree of criminal intent so as to bring his actions within a lesser included criminal offense.

La.C.Cr.P. Art. 651 provides in pertinent part:

“When a defendant is tried upon a plea of ‘not guilty’, evidence of insanity or mental defect at the time of the offense shall not be admissible.”

In State v. Lecompte, 371 So.2d 239 (La. 1979), the Supreme Court held that this article precludes admission of expert testimony concerning the absence of specific intent when defendant’s plea is not guilty, stating as follows:

“Under this statute, evidence of a mental condition or defect is inadmissible when the defendant failed to plead not guilty and not guilty by reason of insanity. Moreover, a mental defect or disorder short of insanity cannot serve to negate specific intent and reduce the degree of the crime. State v. Rideau, 249 La. 1111, 193 So.2d 264 (1966) and the cases cited therein. See also LSA-R.S. 14:14; LSA-C.Cr.P. Art. 651, Official Revision Comment (a); State v. Berry, La., 324 So.2d 822 (1975). In State v. Jones, La., 359 So.2d 95 (1978), we upheld a trial court’s ruling which precluded counsel from arguing that defendant’s ‘neurotic, prone-to-hysteria mental condition precluded the specific intent required for murder ... ’ where defense had withdrawn her plea of not guilty by reason of insanity.” (Emphasis ours)

This holding was affirmed in State v. Wade, 375 So.2d 97 (La.1979), cert. denied, 445 U.S. 971, 100 S.Ct. 1665, 64 L.Ed.2d 249 (1980).

A defendant who alleges that his counsel was ineffective must couple that allegation with a specific showing of prejudice. State v. Landrum, 307 So.2d 345 (La.1975); State v. Seiss, supra. As a matter of law, defendant is unable to show prejudice by the failure of defense counsel to provide expert testimony of a mental or emotional defect insufficient to constitute legal insanity.

ASSIGNMENT OF ERROR NO. 2

The defendant contends that the concurrent sentences of 20 years on each of the two counts constitutes excessive punishment in violation of Article 1, § 20 of the 1974 Louisiana Constitution. The defendant further contends that the court failed to comply with the statutory sentencing criteria mandated by La.C.Cr.P. Art. 894.1.

It is well settled that the imposition of a sentence, although within the statutory limits, may violate a defendant’s constitutional right against excessive punishment. State v. Sepulvado, 367 So.2d 762 (La.1979). In determining whether the penalty is grossly disproportionate, the court must consider “the punishment and the crime in light of the harm to society caused by its commission, and determine whether the penalty is so disproportionate to the crime committed as to shock our sense of justice.” State v. Bonanno, 384 So.2d 355, 358 (La.1980).

The maximum penalty for attempted first degree murder is 50 years imprisonment at hard labor. La.R.S. 14:27(D)(1). Defendant was exposed to a penalty of 100 years at hard labor. The concurrent sentences of 20 years on each count is well within the statutory limits. The trial judge is afforded wide discretion in the imposition of sentence within statutory limits and the sentence imposed should not be set aside in the absence of a manifest abuse of his discretion. State v. Abercrumbia, 412 So.2d 1027 (La.1982).

La.C.Cr.P. Art. 894.1 provides appropriate criteria by which to measure whether a sentence within statutory limits is nevertheless excessive. State v. Sepulvado, supra. The trial judge need not list every aggravating and mitigating circumstance presented in this article, but the record must reflect that he adequately considered statutory guidelines in particularizing the sentence to defendant. State v. Sims, 410 So.2d 1082 (La.1982).

In imposing the sentence on defendant in this case, the trial judge stated several aggravating considerations, including the very serious nature of the crime, the persistence of defendant in the commission of the crime, and defendant’s apparent complete disregard for life. He also stated certain mitigating considerations, including the defendant’s youth, the lack of a prior criminal record and a possible emotional influence. These stated considerations and the subsequent sentences imposed reflect that the trial judge adhered to the statutory guidelines set forth in La.C.Cr.P. Art. 894.1, in particularizing the sentence to the defendant.

Accordingly, we find that the sentence imposed is not so disproportionate to the crime committed as to shock our sense of justice or to constitute a manifest abuse of the discretion of the trial judge.

For the above and foregoing reasons, the convictions and sentences are affirmed.

AFFIRMED.

      . Defendant does not contend that the evidentia-ry hearing would show that the defense of his case was prejudiced by defense counsel’s failure to plead not guilty and not guilty by reason of insanity.


author: STOKER, Judge.

text:
    GENERAL MOTORS ACCEPTANCE CORPORATION, Plaintiff-Appellant, v. Lourey J. TULLIER, III, Defendant-Appellee.
    No. 83-807.
    Court of Appeal of Louisiana, Third Circuit.
    July 25, 1984.

      Marcus A. Broussard, Jr., Abbeville, for plaintiff-appellant.
    Toxie L. Bush, Jr., Abbeville, for defendant-appellee.
    Before GUIDRY, CUTRER and STOKER, JJ.
   STOKER, Judge.

Plaintiff, General Motors Acceptance Corporation (GMAC), appeals from the dismissal of its suit for a deficiency judgment against Lourey Tullier. We reverse the judgment of the trial court dismissing the suit for a deficiency judgment and render judgment in favor of GMAC as prayed for.

On August 18, 1981 GMAC filed a petition for executory process based on a promissory note dated July 1, 1981 secured by a chattel mortgage on a 1978 Ford truck owned by Tullier. The truck was appraised for $2,800 and was sold at sheriffs sale on September 30, 1981 to GMAC for $1,667, according to the original proces verbal signed by the deputy conducting the sale, Joseph Suire.

On October 14, 1981 GMAC filed a petition for a deficiency judgment against Tul-lier seeking the outstanding balance of $6,173.42. A document dated November 2, 1981 and filed in the record on that same day titled “Act of Correction” declares that the price of $1,667 given in the original proces verbal was incorrect and that the correct amount is $1,867, an amount which is two-thirds of the appraised value of $2,800. Accordingly, GMAC amended its claim for a deficiency judgment to pray for $5,973.42. In his answer to the petition for a deficiency judgment, Tullier claims that GMAC is not entitled to such a judgment on either of two grounds: (1) that GMAC accepted a voluntary surrender of the truck through its agent, Ray Chevrolet, and (2) that the sale was not conducted according to proper procedure in that the truck was sold for less than two-thirds of its appraised value. In the alternative, Tul-lier sought to have the seizure and sale declared null and asked damages for wrongful seizure and sale.

Initially, the trial court declared the sheriffs sale null and denied GMAC’s request for a deficiency judgment. Upon GMAC’s motion for a new trial, the trial court recalled its judgment rendering the sheriff’s sale null, but still denied GMAC’s request for a deficiency judgment. The only reasons for this judgment in the record are given in a minute entry and read as follows:

“The Court finds that the creditor’s failure to strictly comply with the laws of executory process, by selling the property for less than two-thirds (⅜) of the appraised value, does not invalidate the sheriff’s sale.
“However, because of the plaintiff’s failure to comply with the laws of executory process, his request for a deficiency judgment is hereby denied.”

In his brief on appeal, Tullier states that he “has chosen not to argue with or appeal” the trial court’s decision that the sheriffs sale was valid, even though he believes that the first decision declaring the sale a nullity was correct. Tullier urges only that the judgment denying GMAC’s request for a deficiency judgment be affirmed. We note that no judgment was rendered on Tullier’s alternative demand for damages for wrongful seizure and sale, and that issue has not been raised before us in this appeal. We must consider only what effect the alleged mistake in price and purported voluntary surrender may have on GMAC’s petition for deficiency judgment.

MISTAKE IN PRICE

As previously stated, the original proces verbal prepared by Deputy Suire indicated that the truck was sold for $1,667. The act of correction prepared by the deputy states that the proper amount is $1,867. Both Donald Soileau, GMAC’s representative at the sheriffs sale, and Deputy Suire testified at the trial on the deficiency judgment that the bid was made for two-thirds of the appraised value, not a specific dollar amount. Deputy Suire testified that the error was strictly his in calculating two-thirds of the amount.

If in fact the property was sold at the first offering for less than two-thirds of its appraised value, the sale could be declared null as having been made in violation of LSA-C.C.P. article 2336. Monroe v. Jones, 136 La. 143, 66 So. 759 (1914). Even though the sheriffs sale is not challenged in this appeal, such a defect would operate to defeat GMAC’s petition for a deficiency judgment. See Ford Motor Credit Company v. Samec, 227 So.2d 164 (La.App. 2d Cir.1969). It is well established that a deficiency judgment is prohibited where there is any fundamental defect in the executory proceedings. Ford Motor Credit Company v. Soileau, 323 So.2d 221 (La.App. 3rd Cir.1975).

We find that the bid for the truck was in fact for two-thirds of its appraised value as sworn to by the deputy in his act of correction and as testified to by him at trial. The deputy’s mathematical error should not operate to deny relief to GMAC in this matter. We find that this is an error subject to correction, not a fundamental defect sufficient to defeat the petition for a deficiency judgment. See Colonial Bank v. Baptiste, 370 So.2d 681 (La.App. 4th Cir.1979).

VOLUNTARY SURRENDER

Tullier urges in his brief on appeal that if we should find that the sale was properly made for two-thirds of the appraised value, then the case should be remanded to the trial court for a determination as to whether or not the truck was voluntarily surrendered to Ray Chevrolet so as to preclude GMAC from obtaining a deficiency judgment. We do not find such a remand necessary, as we have all the facts before us regarding the alleged voluntary surrender. Gonzales v. Xerox Corporation, 320 So.2d 163 (La.1975). A return of property on which a mortgage has been given to secure payment of a note has been found to be sufficient to estop enforcement of the balance due on the note. International Harvester Credit Corporation v. American Troubleshooters, Inc., 338 So.2d 708 (La.App. 4th Cir.1976). This argument of estoppel is an affirmative defense which should have been specifically pleaded in defense of the executory proceedings. We do not think that the defense is properly raised at this point in an attempt to defeat a deficiency judgment. We believe that defects which may be urged to defeat a deficiency judgment must be of such a nature as to be apparent on the record and do not include substantive defenses the debtor failed to urge in the executory proceedings. However, at least one court of appeal appears to have held differently. In Plumbing Supply House v. Century National Bank, 440 So.2d 173 (La.App. 4th Cir.1983), writ denied, 444 So.2d 1226 (La.1984), the Court held that any procedural or substantive defense which could have been urged by a debtor in the original proceeding may be used as a defense to a suit for a deficiency judgment. In support of that proposition the Court of Appeal cited the Supreme Court opinion of League Central Credit Union v. Montgomery, 251 La. 971, 207 So.2d 762 (1968). We do not agree that the holding in the Montgomery case is so broad as to include defenses such as that urged by Mr. Tullier in this case; however, because we have all of the facts before us, we will consider the issue.

Tullier purchased the truck from Ray Chevrolet on July 1, 1981. He took the truck back to Ray Chevrolet on July 16 saying that he would be unable to pay for the truck. At that time he was asked to return the next day so that some type of agreement involving a voluntary surrender could be worked out. By his own admission, Tullier did not return the next day and apparently made no further effort to reach an agreement regarding the truck. Because Mr. Tullier failed to return, the matter was turned over to GMAC’s attorney for enforcement on the note. Assuming for the purposes of argument that Ray Chevrolet acted as an agent for GMAC, we do not find that the facts of this case establish that a voluntary surrender was made and accepted by the creditor in such a manner as to estop enforcement of the note. In International Harvester Credit Corporation v. American Troubleshooters, Inc., supra, the Court found that the mortgaged property was surrendered by the debtor in the good faith belief that he was securing a release. He was not informed until over fifty days after the surrender that no release had been given. It is particularly significant that in the International Harvester case, the creditor asked for the return of the property. We find the facts of this case similar to those in Fruehauf Trailer Division, Fruehauf Corporation v. Toups, 243 So.2d 88 (La.App. 1st Cir.1970). In Fruehauf the debt- or, on his own initiative, returned mortgaged property to the creditor. A representative of Fruehauf agreed to discuss with his superiors the possibility of reaching an agreement in which the debtor could be relieved of all further liability. No such agreement was ever reached. The Court in Fruehauf stated:

“Appellant’s apparent contention that a debtor may discharge an obligation by unilaterally surrendering mortgaged property to the vendor merits no discussion other than that it is utterly without foundation in law.”

In the case before us Tullier’s return of the truck to Ray Chevrolet without further discussion or agreement did not operate to discharge his obligation under the note. Thus, GMAC is entitled to its deficiency judgment as prayed for.

DECREE

Accordingly, it is hereby ordered, adjudged and decreed that there be judgment in favor of General Motors Acceptance Corporation and against Lourey J. Tullier, III in the amount of $5,973.42, together with an additional twenty-five percent as attorney’s fees and legal interest thereon from date of judicial demand until paid. Costs at trial and on appeal are assessed to appel-lee.

REVERSED AND RENDERED.


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    Michael Jerry CAMPBELL, Plaintiff-Appellant, v. LUKE CONSTRUCTION COMPANY, Defendant-Appellee.
    No. 83-831.
    Court of Appeal of Louisiana, Third Circuit.
    July 25, 1984.

      Edwards, Stefanski & Barousse, J. Michael Stefanski, Crowley, for plaintiff-appellant.
    Andrus, Preis & Kraft, Gregory La-borde, Lafayette, for defendant-appellee.
    Before GUIDRY, CUTRER and STOKER, JJ.
   STOKER, Judge.

Plaintiff, Michael Campbell, appeals from a judgment dismissing his suit in which he sought an increase in a previous award of workers’ compensation benefits obtained against his former employer, Luke Construction Company. We affirm.

On October 16, 1980 plaintiff filed suit seeking workers’ compensation benefits for back injuries sustained in an on-the-job accident on August 24, 1980. After trial on the merits, judgment was signed on December 8, 1981, awarding to plaintiff compensation benefits in the amount of $113.33 per week for one year, medical expenses, and the cost of depositions and medical reports. On July 28, 1982 plaintiff filed a petition seeking modification of the previous judgment alleging that he is now totally and permanently disabled. It is from the judgment dismissing this claim for modification that plaintiff appeals.

In order to modify the original judgment, plaintiff must establish that his condition is changed or that the initial award was obtained through fraud, error or misrepresentation. Zachary v. Bituminous Casualty Corporation, 371 So.2d 1249 (La. App. 3rd Cir.1979). There is no claim of fraud, error or misrepresentation in the case before us; therefore, plaintiff must prove that his condition has changed.

As to the evidence presented by plaintiff in support of his claim, we quote and adopt as our own the following findings by the trial court:

“At the outset, the Court observes that it saw and heard the Plaintiff testify and it was very unimpressed with his demean- or, testimony and veracity. Further, no member of his family or any friend came forward to verify his alleged suffering. “Plaintiff’s evidence, in addition to his testimony were the records of Erath General Hospital (P-1), two reports of Dr. Lee (P-2) and a deposition of Dr. Slade (P-3).
“As to P-1, Plaintiff was hospitalized for an urinary tract infection which was completely unrelated to the accident. While in the hospital he complained of back pain, but the record contains no findings of any cause or substance regarding the back.
“P-2, the reports of Dr. Lee contain no findings, only complaints of the Plaintiff. Dr. Lee makes no diagnosis of any injury attributable to the accident.
“In P-3, Dr. Slade testifed (sic) that he found some spasm and felt the complaints of Plaintiff were sincere. However, he gave no findings or diagnosis and the Plaintiff turned down any further testing or treatment.”

We note further that although Dr. Slade conducted some tests which indicated the presence of lower back defects consistent with a protruding disc, this diagnosis was not confirmed. As stated by the trial court, the plaintiff refused further testing or treatment.

In a workers’ compensation case, the findings of the trial court with regard to the credibility of the plaintiff and the findings of disability are questions of fact that will not be disturbed in the absence of manifest error. Brisco v. Board of Elementary and Secondary Education, 422 So.2d 667 (La.App. 3rd Cir.1982), writ denied 429 So.2d 154 (La.1983). Our review of the record reveals no such error.

For the foregoing reasons, the judgment of the trial court dismissing plaintiffs suit is affirmed. Costs of this appeal are assessed to plaintiff.

AFFIRMED.


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    Gail Younce PATIN, Plaintiff-Appellant, v. Connie Lee Joseph PATIN, Defendant-Appellee.
    No. 84-93.
    Court of Appeal of Louisiana, Third Circuit.
    July 26, 1984.
    Charles Brandt, Lafayette, for plaintiff-appellant.
    Gauthier & Cedars, Stanford B. Gauthier, Breaux Bridge, for defendant-appellee.
    Before DOMENGEAUX, FORET and DOUCET, JJ.
   MOTION TO DISMISS

DOMENGEAUX, Judge.

Appellee, Connie Lee Patín, moves to dismiss the appeal of plaintiff-appellant, Gayle Younce Patín, on the grounds that the appellant has voluntarily and unconditionally acquiesced in the judgment thereby abandoning her right of appeal.

The facts succinctly stated are as follows: on May 11,1984, the appellant, Gayle Patín, obtained an order requiring Connie Patín to turn over to Gayle a Bronco truck allocated to her in a judgment of partition, which judgment also determined the ownership of a house and camper. The vehicle was seized by the Sheriff of St. Martin Parish and put in the possession of Gayle. Appellee, Connie Patín, contends that the above action constituted acquiescence in the judgment of the partition.

Applicable in this situation is Article 2085 of the Louisiana Code of Civil Procedure which reads as follows:

“An appeal cannot be taken by a party who confessed judgment in the proceedings in the trial court or who voluntarily and unconditionally acquiesced in a judgment rendered against him. Confession of or acquiescence in part of a divisible judgment does not preclude an appeal as to other parts of such judgment.”

Interpretations of this article clearly reveal that the appellant did not acquiesce in the judgment so as to preclude appeal. In Cohn Realty Co. v. Able Moving & Storage Co., 402 So.2d 104 (La.App. 1st Cir. 1980) the court held that even though a tenant took advantage of the option afforded it by a portion of the judgment in his favor; he did not acquiesce in and could seek an appeal from the judgment. In a similar fashion, although Gayle sought to gain possession of the truck awarded to her in the judgment of possession, she can still seek an appeal from the portion of the judgment which determined the ownership of other assets.

Appeals are favored, and forfeiture of a party’s right to appeal through acquiescence should only be decreed when the party’s intention to acquiesce and abandon his right to appeal is clearly demonstrated. Hoyt v. State Farm Mut. Auto. Ins. Co., 413 So.2d 1003 (La.App. 3rd Cir.1982) writ denied 423 So.2d 1180 (La.1982). In this case appellee did not show that Mrs. Patín intended to acquiesce in the judgment and abandon her right to appeal. The motion to dismiss the appeal is, therefore, denied.

MOTION DENIED.