text:
    Lloyd KRAMER v. JOHNS-MANVILLE SALES CORPORATION a/k/a Johns-Manville Products Corporation and Avondale Shipyards, Inc.
    No. 84-CA-304.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 13, 1984.

      Cheryl Denny, G.R. Simno, III, New Orleans, for plaintiff-appellant.
    Joseph J. Lowenthal, Jr., New Orleans, Delbert Tally, Gretna, for defendants-ap-pellees.
    Before BOUTALL, GAUDIN and DU-FRESNE, JJ'.
   DUFRESNE, Judge.

This is an appeal taken by Lloyd Kraemer, plaintiff, from a judgment of the trial court denying his claim for workmen’s compensation benefits. Kraemer brought this action seeking to recover workmen’s compensation benefits from his former employers, Johns-Manville Sales Corporation and Avondale Shipyards, Inc., defendants, for the alleged contraction of an occupational disease.

The plaintiff was employed by Johns-Manville Sales Corporation from 1949 until 1966 (excluding two years for military service) after leaving the employ of Johns-Manville, plaintiff worked for Avondale Shipyards from 1966 through 1973. During this time period, plaintiff alleges that he was exposed to dangerously high concentrations of asbestos dust, silica, and other pneumoconiosis producing agents. Plaintiff contends that in February of 1982, he was diagnosed as suffering with a painful and debilitating lung disease attributable to his occupational exposure to toxic dusts at Johns-Manville and Avondale.

This matter was tried and the trial court rendered judgment in favor of the defendants and dismissed plaintiffs cause of action with prejudice on the basis that plaintiff had failed to prove his case by a preponderance of evidence. From this judgment plaintiff appeals, asserting the following errors: (1) The trial court erred in finding no disability and (2) the trial court erred in dismissing plaintiffs claim with prejudice.

Plaintiff argues that during his 15 years with Johns-Manville and 7 years with Avon-dale, he was exposed to a variety of fibro-genic (lung-scarring) dusts. The trial of this matter consisted primarily of the testimony of medical experts and testimony concerning a rating system used by Johns-Manville in interpreting chest X-rays of its employees.

Plaintiff argues that the testimony of the medical experts was conflicting. Dr. Morton Brown, plaintiffs treating physician, indicated the existence of progressive lung disease related to fibrogenic dust exposure.

Dr. Brown also testified that his findings were consistent with plaintiffs exposure to asbestos and silica, and that the plaintiffs disease was progressive in nature and that the plaintiff “should avoid exposure to dusts, irritating dusts and chemical fumes.”

Plaintiff introduced the testimony of Dr. Samuel Logan, a board certified general and industrial surgeon who examined employees of Johns-Manville for their annual physical checkups. Dr. Logan found no X-ray abnormality based on his review of his notes.

The trial court was also presented with the testimony of Dr. Robert Jones, a specialist in internal medicine and pulmonary disease. Dr. Jones had examined the plaintiff and obtained a complete history from him. He indicated that the plaintiffs chest resonance and expansion were average and breathing sounds normal during quiet and forced breathing. Dr. Jones requested that chest X-rays be taken of the plaintiff. These included EPA, lateral and right and left obliques.

Dr. Jones found that the lungs and pulmonary vessels appeared normal. He specifically found no evidence of asbestosis.

Besides requesting the X-rays, Dr. Jones also had the plaintiff submit to an electrocardiogram and pulmonary function test. With respect to the latter test, plaintiffs lung function was essentially normal.

After the examination, Dr. Jones testified that there was no evidence of pulmonary fibrosis or asbestosis. He did find pleural plaques due probably to inhaled asbestos, but stated that these plaques have “no known clinical significance and serve only to confirm the history of occupational exposure to asbestos”. He stated these pleural plaques did not cause plaintiff any disability.

Defendants also called, through deposition, Dr. Michael Helm, a board certified radiologist on the staff of West Jefferson General Hospital, who interpreted the chest X-rays at West Jefferson General Hospital at the request of Dr. Morton Brown. Dr. Helm failed to find any radiographic evidence of asbestosis or any pneumoconiosis with respect to his review of the West Jefferson X-rays.

The West Jefferson General Hospital records were also introduced into evidence as a joint exhibit. These records again failed to contain any evidence of a diagnosis of a lung disease by any physician at that institution.

Defendants contend that rather than presenting a confused picture of medical evidence, the record reflects that the overwhelming medical evidence is clear and concise, to wit: Plaintiff is not suffering from any occupational disease.

A plaintiff in a workmen’s compensation case is not relieved of his burden of proof. He must as in all civil cases carry by a preponderance of the evidence, his burden of proof, Guillory v. New Amster dam Casualty Company, 244 La. 255, 152 So.2d 1 (La.1963).

The fact that the instant case is a claim for an occupational disease does not change the standard required of a plaintiff. In Laurendine v. Fischbach and Moore, Inc., et al, 398 So.2d 1220 (La.App. 4th Cir.1981), the issue presented to the 4th Circuit was whether Laurendine had carried his burden of proof in establishing that he contracted asbestosis. In finding that the plaintiff had failed to carry his burden of proof, the Laurendine court stated that a plaintiff in a workmen’s compensation action, based on an alleged occupational disease, must establish by a preponderance of the evidence that there is a disability which is related to the employment related disease.

It is an established principle of law, that the employee in a workmen’s compensation proceeding has the burden of establishing the disability and its causal relation with his employment by a preponderance of the evidence, Allor v. Belden Corporation, 393 So.2d 1233 (La.1981).

After trial on the merits, the trial judge in his ruling stated that:

“I’ve reviewed the evidence and testimony taken in this case on September 7th as well as the concluding testimony of Dr. Jones today.
The evidence reflects that Mr. Kraemer worked for Johns-Manville from 1949 to 1966 and for Avondale from ”66 to ”73. From the testimony I have before me he’s never been disabled or unemployed other than as a result of minor complaints like the inhalation of the welding fumes in 1980.
There’s no doctor that examined him from Logan to Brown who’s ever told him that he was disabled or couldn’t work. As a result of the entire record in the case, I find that he has no disability at all attributable to any of his work history.
I find in favor of the defendants dismissing plaintiff’s case. Each party to bear their own cost, said cost to include the cost of expert witnesses subpoenaed by them into court in the course of the trial.”

A trial court may accept or reject an opinion expressed by a medical expert, depending on what impression qualifications, credibility, and testimony of an expert makes on the court, Woods v. Petroleum Helicopters, Inc., 415 So.2d 978 (La.App. 1st Cir.1982). In deciding whether an employee has proven his claimed disability, the totality of the evidence, must be considered. It is the trial judge’s function to determine the weight that is to be accorded the medical and lay testimony. It is clear that question of disability related to employment must be proven by the preponderance of the evidence. However, before the question of disability can be addressed, “plaintiff must prove he contracted a disease during the course of his employment, and as a result of the nature of his work.” Howard v. Johns-Manville Sales Corp., 420 So.2d 1190 (La.App. 5th Cir.1982).

It is well established that on appellate review, the trial court’s factual findings as to disability are entitled to great weight and are not to be disturbed in absence of manifest error, Howard, Supra. In our review of the record, we do not find that the trial judge’s conclusion was manifestly wrong, thus he was correct in dismissing the plaintiff’s case.

Although we affirm the dismissal of plaintiff’s action, we must amend so as to dismiss the action without prejudice for the following reason.

Since the alleged lung ailment of which the plaintiff complains is a type of condition which is chronic and progressively deteriorating, he may experience a lung disease attributable to his employment in the future.

Accordingly, we agree that the plaintiff’s suit should have been dismissed without prejudice and we will amend the judgment accordingly. See Harris v. Johns-Manville Sales Corp., 450 So.2d 750 (La.App. 5th Cir.1984) and cases cited therein.

For the reasons assigned, the judgment is amended so as to dismiss the plaintiffs claim without prejudice. In all other respects, the judgment of the trial court is affirmed.

AMENDED AND AFFIRMED.


source: Caselaw Access Project

author: REDMANN, Chief Judge.

license: Public Domain

text:
    Mildred M. SMITH v. Wade M. SMITH.
    No. CA 1492.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 14, 1984.
    F. Smith Knobloch, Knobloch & Knob-loch, Thibodaux, for plaintiff.
    Dudley D. Flanders, New Orleans, for defendant.
    Before REDMANN, C.J., and KLEES and CIACCIO, JJ.
   REDMANN, Chief Judge.

A mother’s appeal challenges a child custody judgment that increased the father’s time with his two young sons during the summer from three weeks to about two months (except for alternate weekends during those two months, when the mother would have the children). (Under both the new and the old judgments, the father also visits with the boys on alternate weekends during the rest of the year, when the mother has custody.) The judgment now appealed also provided, for the first time, that the younger son (three years old at date of judgment) is to spend certain holidays with the father, as the older son (then six) was already doing.

The mother argues that the judgment errs by decreeing “joint custody” when the parties had earlier “agreed” to sole custody in the mother; by failing to find sole custody by herself to be for the children’s best interest; and, if joint custody be otherwise correct, by failing to allocate parental authority for the children’s education and health needs.

We amend to specify that the mother, who has the children’s physical custody during the school year and therefore for the much greater part of the year, has ultimate authority, in case of disagreement, both as to the education and the major medical treatment of the children.

We first observe that prior Louisiana law did not permit joint custody but gave custody to one parent alone, with the other afforded only reasonable visitation. A visitation award that exceeded a reasonable amount was held tantamount to part time or divided custody and therefore impermissible; Pierce v. Pierce, 213 La. 475, 35 So.2d 22 (La.1948); LeBouef v. LeBouef, 325 So.2d 290 (La.App. 4 Cir.1975); Litton v. Litton, 299 So.2d 458 (La.App. 2 Cir. 1974). Louisiana courts were first authorized to award joint-custody, though only by consent of the parents, by La.Acts 1981 No. 283, amending'La.C.C. 146 and 157. Acts 1982 No. 307 again amended those articles to establish joint custody in place of one-parent custody as the preferred custody award in Louisiana, in “all” cases of custody or change of custody.

Art. 157 provides that in all cases of “change” of custody, permanent custody is to be granted in accordance with art. 146 (governing custody pendente lite). As of trial time, Art. 146 C provided a presumption favoring joint custody, unless (among other things) the parents “have agreed to an award of custody to one parent or so agree in open court .... ” (This language was amended by Acts 1983 No. 695 to read simply “the parents may agree to an award of custody to one parent.”) The mother argues that in the earlier custody proceedings in this matter the father had agreed to the award of custody to the mother by consent judgment, and therefore there is no presumption in favor of joint custody in this case. But the latest of the earlier custody proceedings was in April 1981, before the introduction of joint custody into our law. It would be unfair to hold this father not entitled to the presumption favoring joint custody on a theory that he had waived it before joint custody ever became legally possible. For an “agreement” to amount to a waiver, there must be some other choice than agreement: and there never was, in Louisiana before 1981, the possibility of any other custody than custody in one parent. Our conclusion is that the presumption in favor of joint custody was not precluded under the 1982 version of C.C. 146 C(l) by one parent’s having consented to the other’s having custody at a time when the law did not provide joint custody.

The mother’s argument that the children’s best interests would be served by giving her sole custody is to some extent an argument against the wisdom (not the constitutionality) of the joint custody legislation itself — a legislative question courts have no authority to decide, La. Const, art. 2 § 2.

The mother correctly, Turner v. Turner, 455 So.2d 1374 (La.1984), asserts that the amended art. 146 establishes only a rebut-table presumption that joint custody is in the best interest of the child, and that that presumption is overcome by evidence to its contrary. But we believe the trial judge also correctly understood this. His oral remarks concluded, “whatever I do, it will be what I believe is for the best interest of these two children_” His written reasons conclude “that in this ease, joint custody of the minors is in their best interest.” These are not the expressions of a judge who mistakenly believes himself bound in every case to order joint custody.

The mother does argue that foibles, failings and deficiencies of the father make him unsuitable to have custody. One might conclude that the father is not an ideal parent, perhaps not close to ideal; but few if any parents are. The father’s defects, however, are not so spectacular as to deprive the trial judge of discretion to allow him more extensive visitation or partial custody. Indeed, as we have noted, the abstract term “joint custody” in the concrete of this case means primary responsibility for the children, during the longest “visitation” or “custody” period, for about eight weeks (less every other weekend) instead of three — an increase for that period from 21 days to a total of about 50. We simply cannot say that the trial judge abused his discretion, or was clearly wrong, in this aspect of the judgment. Moreover, the decree can always be amended if experience shows that spending most of the summer with the father causes problems — or even in order to allow the mother to have a summer vacation with the children.

The trial court’s judgment does omit a provision for resolution of any disagreement as to the children’s schooling and major medical treatment. As in Plemer v. Plemer, 436 So.2d 1348 (La.App. 4 Cir. 1983), we give the ultimate decision on major medical treatment to the parent who has the majority of the custody. We also amend to give the mother, who has custody of the children during the school year and who must primarily help them with their homework and work with the school teachers and staff, the final decision on the children’s education.

The judgment appealed from is amended to add that the mother has the final authority, in case of disagreement, on major medical treatment and education of the children. It is otherwise affirmed.


text:
    STATE of Louisiana v. Adrian WELLS.
    No. K 2888.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 14, 1984.

      William J. Guste, Jr., Atty. Gen., Barbara B. Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Anne Lacour Neeb, Asst. Dist. Atty., New Orleans, for plaintiff.
    M. Craig Colwart, New Orleans, for defendant.
    Before REDMANN, C.J., and GARRISON and KLEES, JJ.
   REDMANN, Chief Judge.

We granted certiorari to review the trial court’s dismissal of a prosecution reinsti-tuted after nol pros. We now set the dismissal aside and remand to allow the state to produce evidence that the nol pros was the result of being unprepared for trial because of the defendant’s counsel’s having advised the state that his client would plead guilty and therefore trial would be unnecessary.

The state’s application asserts that then defense counsel Wilfret McKee informed the assistant district attorney that Wells would plead guilty as charged at the time set for motions and trial on July 30, 1984. On July 30, the defense attorney was absent. The court inquired of the assistant district attorney, “It’s my understanding, Mr. Johnson, that there is a plea that’s going to be worked out in this case? A. Your honor, today was the day in which the defendant was supposed to plea.” The trial judge ordered Wells to appear the next day with counsel. The next day McKee did appear in court but, the state’s application alleges, he informed the state that Wells had changed his mind and did not intend to plead guilty. The trial judge ordered the state to trial, the application avers. The state entered a nolle prosequi and informed the court of its intention to reinstitute the charges. (A minute entry states that “The Court advised the State they shall be held in contempt if proceedings are reinstitut-ed.”)

The charges were reinstituted. Wells was again arraigned on September 5. Craig Colwart was appointed to represent the defendant and the case was set for motions and trial on September 10. The defendant filed an oral motion to quash, arguing that the defendant’s right to a speedy trial had been denied by the state’s actions in nol-prossing the charge in order to avoid going to trial and then reinstitut-ing it. This motion was granted by the trial judge, and we granted certiorari on the state’s application.

I.

The defendant’s right to a speedy trial was not violated. C.Cr.P. art. 701(D) provides:

“After the filing of a motion for a speedy trial by the defendant, the time period for commencement of trial shall be as follows:
“(1) The trial of a defendant charged with a felony shall commence within one hundred twenty days if he is continued in custody and within one hundred eighty days if he is not continued in custody.” (Underscoring added.)

Defendant never filed a motion for a speedy trial.

II.

Nor did the state improperly nol-pros to avoid going to trial within the prohibition of C.Cr.P. 576. Under art. 576, the state is permitted to file new charges, except that, in the ease of the DA’s dismissing a prosecution, he may not institute new proceedings “unless the state shows that the dismissal was not for the purpose of avoiding the time limitation for commencement of trial established by Article 578.”

Art. 578’s time limitation is “two years from the date of institution- of the prosecution,” which was May 14, 1984, from which two years is May 14, 1986. Thus it is indisputable that the state did not dismiss to avoid, art. 578’s time limitation.

III.

The trial judge rightly recognized his sometimes unpopular responsibility to prevent abuse of an accused by the state’s prosecutorial power. No society that believes itself free could tolerate a prosecutor’s prosecuting an accused up to the date set for trial, then dismissing the charge, then reinstituting it and prosecuting it again until trial date, dismissing it again— and again. Even once is too much.

But the state’s application avers a pre-trial assertion by defendant’s then counsel that defendant would plead guilty. A plea would, of course, have made trial unnecessary and therefore the state may have acted reasonably in being unprepared for a trial that was not to take place, especially in respect to its failure to pursue the defendant’s court-ordered specimen of defendant’s handwriting that defendant never provided.

The transcript shows that the trial judge dismissed the reinstituted charge without affording the state the opportunity to present evidence justifying the reinstitution after nol pros. We remand to allow the state to present its evidence, with instructions that if the state establishes former defense counsel had indeed advised the state that defendant would plead guilty, and defendant’s change of mind was not communicated to the state until the day set for trial, then the reinstitution of the charge should be allowed. To rule otherwise would oblige the state in the case of an anticipated plea to subpoena witnesses for a trial that is not supposed to be held, in order to protect against the possibility (not here suggested) of unscrupulous counsel’s setting an ambush for the state.

Remanded.


author:
GULOTTA, Judge.
      SCHOTT, Judge,

text:
    Raymond A. SCHWARZ, M.D., et al. v. Rudolph J. BOURGEOIS, M.D., et al.
    No. CA-1888.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 14, 1984.

      Gibson Tucker, Jr., Tucker & Schonekas; Wiedemann & Fransen, Matthew F. Belin, Remy Fransen; Garon, Brener & McNeely, Herbert J. Garon, Carol T. Richards, New Orleans, for appellees.
    Sessions, Fishman, Rosenson, Boisfon-taine & Nathan, Robert C. Lowe, Peter S. Title, New Orleans, for appellants.
    Before GULOTTA, SCHOTT and WARD, JJ.
   GULOTTA, Judge.

In this litigation involving liquidation of a medical partnership, Rudolph J. Bourgeois, M.D. appeals from judgments ordering liquidation of the partnership under court supervision and establishing April 27, 1983 as the date of its dissolution. We affirm.

On February 21, 1983, Dr. Bourgeois and his four physician-partners in The Surgical Clinic of East New Orleans signed an “Agreement and Compromise” to separate their medical practice according to detailed and explicit stipulations. The agreement provided, inter alia, for removal of certain physicians from the suite then occupied by the partnership, reference of callers to the respective doctors at their new telephone numbers, announcements and advertisements by the departing doctors, disposition of all patient records, and the naming of a liquidator to disburse partnership funds and assets.

Of particular concern to the partners was the leasing of new office space by the departing doctors. Specifically, Dr. Raymond A. Schwarz agreed to assume responsibility and liability for the partnership’s current lease of office space and to “hold harmless and indemnify Dr. Bourgeois” (who was also a signatory to that lease) from any and all claims and obligations arising under the lease. The departing doctors were to enter new lease arrangements for other office space, but if they did not do so within a specified time, the “Agreement and Compromise” was to be nullified. On the other hand, the Agreement further provided that once satisfactory, written lease arrangements had been made by the departing doctors, “... the Partnership shall be dissolved the following day, when a consent to dissolve shall be signed by all the partners.”

Dr. Bourgeois subsequently refused to sign the “consent to dissolve”; whereupon Dr. Schwarz and his assenting partners filed a rule nisi on November 18, 1983, entitled “Petition to Confirm Liquidator in Non-judicial Liquidation of Partnership”. This petition alleged that all the terms and conditions of the “Agreement and Compromise” had been performed, and prayed for liquidation of the partnership under court supervision.

In opposition to this rule to show cause, Dr. Bourgeois filed exceptions of unauthorized use of summary proceedings and no cause of action. Dr. Bourgeois argued that the petition was actually a suit to dissolve the partnership, and could only be brought under ordinary, not summary process. He further contended that the petition failed to state a cause of action for liquidation because the partnership must first be dissolved before being liquidated.

In written “REASONS FOR JUDGMENT” overruling Dr. Bourgeois’ exceptions, the trial judge stated that the detailed “Agreement and Compromise” was “really an agreement to dissolve and liquidate” signed by all the partners. He further stated:

“At a bench conference, with the court having before it the pleadings and the Agreement, counsel for Dr. Bourgeois conceded that the partners have been engaged in painful intra-partnership litigation for three years and the purpose of the Agreement was to bring an end to this intolerable situation. He further candidly stated that the only stumbling block to the full implementation of the Agreement to Dissolve and Liquidate is a disagreement which has arisen between Drs. Bourgeois and Schwarz involving Dr. Schwarz’ indemnification of Dr. Bourgeois under Article VI of the Agreement. It is conceded that Dr. Schwarz has tendered an Indemnification which is otherwise satisfactory, except that Dr. Schwarz refuses to include a liquidated damages clause for $100,000 which is demanded by Dr. Bourgeois.
“This demand by Dr. Bourgeois is obviously capricious and arbitrary and far beyond the undertakings to which Dr. Schwarz is committed under the Agreement. The same thing may be said of Dr. Bourgeois’s refusal to sign a so-called “Dissolution.” The Agreement is a contract to dissolve and liquidate predicated on suspensive conditions, all of which have been satisfied according to counsel’s concessions at the bench conference, and Dr. Bourgeois cannot impede the further execution of the Agreement by arbitrarily refusing to comply with the formality of executing a “Dissolution” which he is now obliged to execute. See Article XIII of the Agreement.
“Accordingly, I overrule the exceptions and grant the relief sought in the rule nisi so that the liquidation can proceed in the manner meticulously spelled out in the Agreement between all of the parties, but subject to the court’s supervision.”

Dr. Bourgeois’ applications for supervisory writs from the trial court’s judgment were denied in this court and the Supreme Court. He subsequently filed the instant devolutive appeal.

During the ensuing court-supervised liquidation, the liquidator filed a summary rule asking the court to specify the date of partnership dissolution. He alleged that some of the partners had actually terminated all partnership transactions as of April 27, 1983, but questioned whether the date of dissolution of the partnership was on May 27, 1983, when the court ordered the court-supervised liquidation. In an August 1, 1983 judgment, the trial court established April 27, 1983, as the “date of the dissolution of the partnership”. Dr. Bourgeois has protectively appealed from this judgment also.

In support of his argument that the trial court erred in ordering dissolution and liquidation of the partnership on a summary rule to show cause, Dr. Bourgeois cites the established rule that a proceeding to determine the dissolution or termination of a partnership requires the use of ordinary process. LSA-C.C. Art. 2834; Dunlap v. Ramsey and Dunlap, 191 La. 158, 184 So. 710 (1938); Bunn v. O.L. Bunn, Inc., 341 So.2d 629 (La.App. 4th Cir.1977). See also Partnership of Meyers & Morris v. Meyers, 451 So.2d 1227 (La.App. 4th Cir.1984). Although we do not quarrel with these authorities, we conclude that they do not apply in the instant case.

A suit to dissolve a partnership must be brought as an ordinary proceeding; however, liquidation under the court’s supervision may proceed in a summary manner once the partnership has been dissolved. LSA-C.C. Art. 2834; LSA-R.S. 12:146; Bunn v. O.L. Bunn, Inc. supra; Partnership of Meyers & Morris v. Meyers, supra.

LSA-C.C. Art. 2826 provides that a partnership may be terminated either by the unanimous consent of its partners or by a judgment of termination. As pointed out by the trial judge, the partners of The Surgical Clinic of East New Orleans unanimously agreed, out of court, to dissolve and liquidate their partnership in the “Agreement and Compromise” executed by them on February 21, 1983, although the agreement is dependent on Article VIII’s suspensive condition: “In the event that satisfactory, written lease agreements are made by those departing doctors, the Partnership shall be dissolved the following day, when a consent to dissolve shall be signed by all the partners.” (Emphasis ours.) It is undisputed that the departing doctors have made new lease arrangements. Accordingly, we conclude, as did the trial judge, that the suspensive conditions to dissolution have been satisfied and the partnership was dissolved by the extrajudicial consent of the partners.

We reject Dr. Bourgeois’ argument that the partnership remains undissolved because of his failure to sign the “consent to dissolve” contemplated by the “Agreement and Compromise”. The “consent to dissolve” is not truly a suspensive condition to dissolution, but is merely a self-activating stipulation of dissolution that was a fait accompli once the true suspensive conditions were met.

A reading of the “Agreement and Compromise” discloses that the real purpose of the “consent to dissolve” is to fix a benchmark or specific date of record for the convenience of the liquidator in disbursing partnership assets. Indeed, the trial court’s later judgment establishing April 27, 1983 as the “date of the dissolution of the partnership”, in response to the liquidator’s rule, recognizes as much.

As noted by the trial judge, Dr. Bourgeois cannot impede the further execution of the Agreement by arbitrarily refusing to comply with this formality. The same may be said of the indemnification agreement to be reached between Drs. Schwartz and Bourgeois, which is not a suspensive condition to dissolution of the partnership but rather an ancillary detail to be resolved by the parties.

Moreover, assuming arguendo that the “consent to dissolve” is a suspensive condition, it is self-activating because the other conditions to dissolution have been satisfied. Dr. Bourgeois’ unilateral refusal to sign constitutes a willful prevention of the fulfillment of the condition. Under such circumstances, the condition is considered fulfilled, despite his failure to sign. LSA-C.C. Art. 2040; Groghan v. Billingsly, 313 So.2d 255 (La.1975), writ denied 318 So.2d 46, 48 (1975).

Accordingly, we conclude the partnership was dissolved by the unanimous consent of the partners in signing the “Agreement and Compromise” subject to suspensive conditions that have since been satisfied. The subsequent rule for liquidation of the partnership under court supervision, therefore, was properly brought under summary process. We find no error in the trial judge’s overruling of the exceptions of unauthorized use of a summary proceeding and no cause of action.

In so holding, we reject Dr. Bourgeois’ contention that he has been denied a hearing on the partnership dissolution. According to Dr. Bourgeois, the trial court’s bench conference on the exceptions did not afford him an opportunity to present evidence on the merits of the rule before judgment was rendered. We disagree.

Whether the “Agreement and Compromise” constitutes a unanimous consent by the partners to dissolve the partnership is essentially a legal question. Although the trial judge made a factual conclusion that the suspensive conditions in the Agreement had been satisfied, based on oral concessions by counsel, the attorney now seeks to mount what is essentially an attack on the trial judge’s credibility. Furthermore, it is undisputed that the essential condition triggering the dissolution was the obtaining of new leases by the partners. The “circumstances” referred to in the “Reasons for Judgment” and complained of by Dr. Bourgeois are meaningless. There is no serious claim that the new leases were not entered into. They were obviously obtained.

Finally, we note that in his earlier writ applications both in this court and the Supreme Court, Dr. Bourgeois has raised arguments similar to those now urged in this appeal. In denying the writ application, we concluded that there was no showing that the trial judge had “in any way exceeded his discretion” by overruling Dr. Bourgeois’ exceptions to the rule for liquidation. Nonetheless, we have chosen to address the merits of Dr. Bourgeois’ contentions on appeal rather than relying on our earlier writ disposition as the “law of the case”. Our prior denial of our discretionary writ jurisdiction did not constitute a full adjudication by us of the issues involved, although, the result on appeal is not inconsistent with the earlier writ disposition. See Day v. Campbell-Grosjean Roofing & Sh. Metal Corp., 260 La. 325, 256 So.2d 105 (La.1971).

Accordingly, we affirm the judgments of the trial court.

AFFIRMED.

SCHOTT, J., concurs with written reasons.

SCHOTT, Judge,

concurs:

I agree with the majority that the partnership was effectively dissolved by unanimous consent of the partners on the day after the departing doctors made new leases for themselves. The parenthetical clause “when a consent to dissolve shall be signed by all the partners” was merely a directive for the partners to acknowledge what had occurred. By refusing to sign such a consent a partner could not undo what already occurred, namely, the dissolution.

As to appellant’s complaint that he was prevented from producing evidence at the trial of the rule, he does not suggest what evidence he might have presented which would have any bearing on the outcome of the rule. There has never been any suggestion that appellant did not sign the original agreement of February 21, 1983 or that leases were not entered into by the departing doctors. As to why appellant failed or refused to sign the “consent to dissolve” this was irrelevant. No matter what motivated appellant to refuse to cooperate, the partnership was already dissolved pursuant to his and the others’ earlier agreement.

Finally, I am compelled to observe that this entire appeal seems moot and the issues purely academic. Appellant took a devolutive appeal from the judgment, and the liquidation has proceeded to a conclusion. It is my understanding that all assets have been distributed to the partners and the liquidator has been discharged. Appellant has failed to point out in brief or argument what would be accomplished as a practical matter even if the court agreed with him to reverse the trial court.

      . The agreement provides, in pertinent part:
      "The lease on suite 450 at the Medical Center of East New Orleans shall be retained by Dr. Schwarz for the practice of medicine and surgery, who will assume the responsibility and liability in connection with that current lease and, further, shall hold harmless and indemnify Dr. Bourgeois, who is presently a signatory to that lease, of and from any and all claims and obligations arising thereunder, including without limitation, all costs, attorney's fees, any claims for rent accelleration and any claim for damages, liquidated or otherwise, incurred in connection with any breach of the lease or any obligations arising under it. Drs. Schwarz and Bourgeois will execute such additional documentation as is deemed necessary by Dr. Rudolph J. Bourgeois to effectuate this provision."

      . Art. 2040. Fulfillment prevented by party bound to perform
      The condition is considered as fulfilled, when the fulfillment of it has been prevented by the party bound to perform it.

      . The full text of our disposition in Writ No. C-0956 on June 17, 1983, reads as follows:
      "WRITS DENIED."
      “The application, opposition, and response considered it is apparent that the trial judge properly is seeking to bring to a conclusion the long delayed progress in this case. There is no showing that he has in any way exceeded his discretion."
      Dr. Bourgeois' subsequent writ application to the Supreme Court was unanimously denied without opinion.


author: GULOTTA, Judge.

text:
    Mrs. Ann M. WEIR v. Jacqueline GASPER, Allstate Insurance Company, New Orleans Public Service, Inc., and Eldrena Moss.
    No. CA-1943.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 14, 1984.
    Writ Denied Jan. 14, 1985.

      Weir & Robinson, Andrew M. Weir, Me-tairie, for appellee.
    Floyd F. Green, Lozes, Cooper & Lozes, Jeffery P. Lozes, New Orleans, for appellants.
    Before GULOTTA, SCHOTT and WARD, JJ.
   GULOTTA, Judge.

In this action by a bus passenger injured in a bus-auto collision, judgment for $125,-000 in general damages and $8,818.58 in medical expenses was rendered in favor of the plaintiff and against New Orleans Public Service, Inc. (NOPSI), its bus driver, the automobile driver, and her liability insurer, in solido.

The accident occurred at the intersection of Canal and Crozat Streets in the City of New Orleans. The NOPSI bus was traveling riverbound on Canal Street in the median area reserved for bus traffic. The defendant automobile, which had been traveling in the same direction on Canal Street, was attempting to execute a left turn across the median area in front of the bus. In the resulting collision, the 74 year old plaintiff bus passenger was thrown forward and sustained serious hip injuries.

In written “Reasons for Judgment”, the trial judge found both drivers at fault:

“The Court has found the defendants drivers liable in solido for plaintiffs injuries. Plaintiff as a fare paying passenger on the New Orleans Public Service bus is owed a very high degree of care by the New Orleans Public Service and its driver. The bus driver had a duty to be vigilant and to anticipate what could reasonably be expected considering the traffic conditions at the time and place of the accident. There was testimony from an independent witness that the bus driver saw the approach of the Gasper vehicle in time to blow the horn of the bus prior to the impact. The Court is of the opinion that New Orleans Public Service, Inc. and its driver violated the duty owed to plaintiff and are therefore liable for the plaintiffs injuries and damages.
Mrs. Gasper was attempting a left turn maneuver at Crozat Street when the accident occurred. She had a duty, of course, to yield the right of way to the New Orleans Public Service bus which she failed to do. As a left-turning motorist in a collision she bears the burden of exculpating herself from a presumption of fault. She failed in that duty and the Court is of the opinion her negligence was a cause of plaintiffs injuries and damages.”

Appealing, NOPSI contends the driver of the automobile was solely at fault for the accident. In a separate appeal, the auto driver contends that NOPSI was solely at fault, or alternatively, that the trial judge erred in failing to assess percentages of fault under the doctrine of comparative negligence. In answer to the appeal, plaintiff seeks an increase in special damages for medical expenses.

Although evidence concerning the accident was somewhat conflicting, the record supports the trial court’s finding of soli-dary liability based on the drivers’ concurrent negligence.

According to Eldrema Moss, the NOPSI driver, after stopping for a traffic light at Canal and Liberty Street she continued traveling riverbound on the Canal Street median at a slow speed, “not even 10 MPH” as she approached a left-turn or “U-turn lane” for automobile traffic crossing the median bus path at Canal and Cro-zat. Moss testified, however, that she had not seen the defendant left-turning vehicle until “a split second” before the collision, and was unable to take any evasive action, blow her horn or apply her brakes before impact between the car’s left front fender and the bus’ right front wheel.

On the other hand, Jacqueline Gasper, driver of the automobile involved, testified that she had proceeded into the left-turn lane at Crozat and stopped before crossing the median area. After checking for lake-bound traffic on Canal, she looked to her left, but a light standard blocked her view. When she moved her vehicle forward “about a foot or two”, she collided with the bus, which she had not seen previously.

In addition to the drivers’ versions, the trial court had the benefit of other testimony. Nicholas Debello, a bus passenger, had noticed defendant’s car traveling alongside the bus, before the car “speeded up a little” at the Crozat intersection and turned left in front Of the bus. According to this witness, the bus driver, who had been turning around and talking to a passenger before the collision, was caught “completely by surprise” by the impact. A second passenger, Ronald J. Scott, likewise observed the car pass alongside the bus and turn in front of it, but, did not see anyone talking to the bus driver before the collision.

Another witness, Anna W. Clay, was attempting to cross Canal Street at Crozat when she saw the bus traveling at the same speed on the median as defendant’s car in the left turn lane. According to this witness, the bus driver sounded her horn for one-half block before the impact without applying her brakes.

As indicated by the trial judge, NOPSI has a duty of exercising the highest degree of care as a common carrier to its fare-paying passengers, and is liable for the slightest negligence causing injury. Wise v. Prescott, 244 La. 157, 151 So.2d 356 (1963); Simms v. Estridge, 346 So.2d 300 (La.App. 4th Cir.1977). The record supports a conclusion that the bus driver was negligent by failing to observe that the automobile in the turning lane had given no indication/ by a reduction in speed or otherwise, that it intended to yield to the bus. Recognition of this circumstance would have afforded the driver an opportunity to avoid the accident. Upon proof of injury to the plaintiff passenger, we conclude NOP-SI has failed to exculpate itself from the presumption of negligence under these circumstances.

In so holding, we reject NOPSI’s contention that the bus driver was confronted with a “sudden emergency” created by the left-turning vehicle. The doctrine of sudden emergency does not apply in the instant case, since the NOPSI driver’s own negligence created the emergency situation. Simms v. Estridge, supra.

We likewise reject the automobile driver’s contention that NOPSI was solely at fault for the accident. Notwithstanding the driver’s emphasis upon the obstruction of her view by the light standard, it is obvious that she had been traveling alongside the bus before executing the left turn, and should have been aware of its approach and her duty to yield to the bus. Under the circumstances, we conclude that defendant Gasper failed to exculpate herself from the presumption of negligence imposed on a left or U-turning motorist involved in such an accident with a following vehicle. See Case v. Arrow Trucking Co., 372 So.2d 670 (La.App. 1st Cir.1979).

We do find merit, however, to Gas-per’s contention that the trial court’s judgment is defective by failing to assess percentages of fault under the Louisiana law of comparative negligence, which applies to this accident occurring on January 3, 1981. LSA-C.C. Art. 2103, adopted in 1979, and effective August 1, 1980, provides that a solidary obligation arising from a quasi-offense, “ ... shall be divided in proportion to each debtor’s fault.” Although the innocent plaintiff bus passenger is entitled to seek full recovery from any one of the solidary defendants cast in judgment, the apportionment of each judgment-debtor’s fault may determine the amount of contribution owed by the debtors to each other.

The evidence considered, together with the trial judge’s written reasons articulating the defendants’ respective breaches of duty, we conclude that each driver was equally at fault in causing the collision. Accordingly, as between themselves, each driver is responsible for one-half of the judgment in favor of plaintiff.

Although there is no dispute concerning the amount of the $125,000.00 general damage award, plaintiff, in answer to defendants’ appeals, contends that the $8,818.58 special damage award for medical expenses should be increased to include an additional $32,760.58 in medical expenses incurred by her but paid by Medicare. Citing the “collateral source” doctrine, plaintiff argues that her tort recovery should not be diminished because of these insurance benefits. ■We agree.

Under the “collateral source” rule, an injured plaintiffs tort recovery is not diminished because of insurance benefits received by plaintiff from sources independent of the tortfeasor’s procuration or contribution. Womack v. Travelers Ins. Co., 258 So.2d 562 (La.App. 1st Cir.1972), writ refused 261 La. 775, 260 So.2d 701 (1972); Hudson v. Thompson, 422 So.2d 640 (La.App. 3rd Cir.1982). This rule was applied in Womack v. Travelers Ins. Co., supra, to Medicare payments received by an injured plaintiff. Accordingly, we conclude that the trial court erred in failing to award the entire amount of stipulated medical expenses in the sum of $41,579.16.

Accordingly, that portion of the judgment awarding plaintiff medical expenses in the amount of $8,818.58 is hereby amended and increased to the sum of $41,-579.16. In all other respects, the judgment is affirmed.

AMENDED AND AFFIRMED.

      . Plaintiff has since died. The testamentary executrix of her estate has been substituted as party plaintiff and appellee-appellant in the instant case.


text:
    HERO LANDS COMPANY, et al. v. Peter P. BORELLO, Jr. and ABC Insurance Company.
    No. CA-1982.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 14, 1984.
    Writ Denied Jan. 14, 1985.

      Simon, Peragine, Smith & Redfearn, Eric John Witmeyer, New Orleans, for appellants.
    William J. Guste, Jr., Atty. Gen., Harry H. Howard, Asst. Atty. Gen., New Orleans, Bubrig & Scandurro, Brian J. Waid, Buras, for appellees.
    Before GULOTTA, SCHOTT and WARD, JJ.
   GULOTTA, Judge.

In this action against a court reporter for damages resulting from the loss of a transcript of trial testimony, plaintiffs appeal from a judgment dismissing their suit on an exception of one-year prescription in tort, and disqualifying their attorneys as advocates in the case. In a protective answer to the appeal, the defendant court reporter claims immunity from suit and contends the trial court erred in denying his motion for summary judgment and/or exceptions of no right and no cause of action.

Because we interpret the allegations of the petition to state a timely cause of action in tort, we conclude the trial court erred in maintaining the prescription exception. Accordingly, we remand the matter to the trial court for further proceedings. In all other respects, however, we affirm the judgment.

Hero Lands Company and individual members of the Hero family (hereinafter referred to as “Hero”) were defendants in a lawsuit entitled Tusson v. Hero Land Co. in the Twenty-Fifth Judicial District Court of Plaquemines Parish. Trial of that lawsuit took place on June 6 and 7, 1977, and on April 5, 1979. Peter P. Borello, Jr., the court reporter, recorded the testimony.

On May 15, 1979, before the trial judge rendered a judgment in the matter, Borello furnished Hero’s counsel with an estimated bill of $675.00 for preparation of the trial transcript. In a July 16,1979 letter, Hero’s counsel requested Borello to prepare the transcript, and on January 7, 1980, paid a share of the costs.

In early October, 1980, however, Borello informed Hero’s attorney that, despite a diligent search of both his office and his home, he could not locate the transcript of the trial proceedings. Hero’s attorney instructed Borello to continue searching for the transcript, and suggested to opposing counsel the possibility of reaching a written stipulation of facts so that the trial judge could render a judgment on the merits without retrying the matter. On November 11, 1980, Borello informed Hero’s counsel that he still had not located the transcript and offered to refund Hero’s payment.

Without the missing transcript, the trial judge was unable to decide the pending matter. Consequently, on September 16, 1981, a retrial of the missing portion of the litigation was ordered.

On August 23, 1982, Hero filed the instant action against Borello, entitled “Petition for Damages”, alleging that the court reporter’s “negligence” and “fault” in failing to furnish a transcript of the original trial had caused plaintiffs to undergo a retrial of the Tusson ease and incur additional expenses.

Borello responded with an exception of prescription grounded on the claim that plaintiff’s action was in tort and untimely because it had been filed more than one year since plaintiffs had learned of the loss of the transcript in November, 1980. Bo-rello also filed exceptions of no cause and no right of action based on the grounds that he enjoyed either an “absolute” or a “good faith” immunity from suit for acts of simple negligence in his capacity as a court reporter. Borello later filed a motion for summary judgment based on similar grounds.

In addition to these exceptions, Borello filed a “rule to show cause” why Hero’s attorneys in the instant suit should not be “disqualified”. According to Borello, these same attorneys — who had also represented Hero in the earlier Tusson suit — were material, factual witnesses who would testify regarding the loss of the transcript and the alleged damages. Borello argued that ethical considerations therefore prohibited the attorneys from acting dually as advocates and witnesses in the instant case.

In a January 19, 1984 judgment, the trial court “disqualified” Hero’s attorneys, partners and associates from acting as counselors or advocates in this matter. The court further maintained defendant’s exceptions of prescription and dismissed plaintiffs’ suit with prejudice. Borello’s other exceptions of no cause and no right of action and his motion for summary judgment were dismissed.

PRESCRIPTION

In written reasons for maintaining the exception of prescription, the trial judge concluded that plaintiffs’ tort suit, filed more than one year after the loss of the transcript, was untimely.

Appealing, plaintiffs contend their cause of action for damages against the court reporter arose on September 16, 1981, when the trial court ordered a retrial of the matter, not when the possibility of the loss first surfaced in late 1980. Alternatively, plaintiffs argue their suit is subject to the ten year prescriptive period for contractual actions, and that Borello breached his contractual- duty to furnish the transcript of the trial proceedings.

At the outset, we find merit to Hero’s contention that the tort allegations of the instant suit are timely pleaded because the petition was filed within one year of the September 16,1981 decree, which ordered a retrial of the Tusson matter.

Former LSA-C.C. Art. 3537 (now LSA-C.C. Art. 3492) provides that prescription in cases based on tort commences from the day on which damage is sustained. The focus is mainly on the time the damage is sustained rather than the time of the commission of the tortious act; and prescription does not commence to run until plaintiff has actual or constructive knowledge of the tortious act, the damage and the causal relation between the two. Duhon v. Saloom, 323 So.2d 202 (La.App. 3rd Cir.1975), writ refused 325 So.2d 794 (La.1976).

In the instant case, in November, 1980, plaintiff Hero only knew that the Tusson transcript was probably lost, but did not know at that time if that matter would have to be retried to its detriment or injury. In essence, Hero was not aware of the effect of the transcript loss, until the trial judge rendered his judgment. Indeed, in a letter of October 14, 1980, Hero’s attorney had suggested to opposing counsel a possibility of having the matter decided on preemptory exceptions or a written stipulation of facts to avoid a retrial of the matter; and in a letter of October 20 Tus-son’s attorney agreed to pursue this possibility. The case remained in “limbo” until September 16, 1981, when the trial judge declared that he was unable to decide the matter without the transcript and ordered a retrial. Thus, it is on September 16, 1981, that Hero sustained injury and the one-year prescriptive period commenced. Accordingly, Hero’s suit filed within one year of the rendition of that date is therefore timely-

The instant case is akin to Marchand v. Miazza, 151 So.2d 372 (La.App. 4th Cir.1963) and Demery v. Voelker, 216 So.2d 328 (La.App. 4th Cir.1968). The cited cases were actions for legal and notarial malpractice in which the plaintiffs alleged that the defendants’ neglect had caused them to lose certain property rights. In both cases, however, when the malpractice suits were filed, other litigation was still pending to decide whether the plaintiffs had any ownership rights in the property involved. This court concluded in both Marchand and Demery that the one-year prescriptive period for the malpractice suits could not commence until plaintiffs had suffered damage in the form of adverse judgments in the separate pending lawsuits. To hold otherwise, we noted in the cited cases, would place the plaintiffs in the untenable position of having causes of action that were premature one day, yet prescribed the next.

In the instant case, like Marchand and Demery, any suit against the court reporter for loss of the transcript would have been premature until the trial judge in the Tusson matter had ordered a retrial. Prior to the retrial order, Hero was not damaged. Although Hero had knowledge of the probable loss of the transcript, the Tusson matter was still pending and Hero still had hope that the trial judge could reach a decision on the merits without the necessity of a retrial with its additional expenses.

Having concluded that Hero has pleaded a timely cause of action in tort, we do not address the issue whether it has pleaded a cause of action in contract subject to a ten-year prescriptive period.

IMMUNITY

We reject Borello’s contention that he is entitled to “absolute” judicial immunity or a qualified, “good faith” immunity for his acts as a court reporter. According to Borello, plaintiffs allegations of “ordinary” negligence, absent allegations of bad faith or gross negligence, fail to state a cause of action. He further contends that his good faith in preparing the transcript and delivering it to the judge supports an exception of no right of action or a summary judgment in his favor. We disagree.

Borello’s claim of immunity is not supported by any Louisiana cases. On the contrary, in Easterling v. First Georgia Underwriters, 427 So.2d 4 (La.App. 4th Cir.1983), we recognized that court reporters may be subject to damages for unreasonable and/or unnecessary delays and are not immune from liability for negligence that causes damages to others. Furthermore, LSA-R.S. 13:972(B) requires that the court reporter furnish a bond “for the faithful performance of his duties” and “for the purpose of protecting litigants against any acts of incompetency or neglect of duty by the court reporter” and further provides that any party litigant may sue on the bond for damages sustained “through any wrongful act or neglect of duty by the court reporter in the performance of his duties” (Emphasis ours). This statutory language presupposes an action for damages resulting from the court reporter’s breach of official duty and conclusively refutes defendant’s claim of either absolute or limited immunity.

We further find no error in the trial judge’s dismissal of Borello’s motion for summary judgment. Although Borello has filed supporting affidavits averring that he had fulfilled his duties by preparing the trial transcript and delivering it to the judge, the question of how it was lost is an unresolved factual dispute to be determined at a trial on the merits.

DISQUALIFICATION OF COUNSEL

The trial judge disqualified plaintiffs’ attorneys as counsel in the instant suit because of their prior participation as Hero’s attorneys in the earlier Tusson action. The judge concluded that Ethical Considerations 5-9 and 5-10 of the Code of Professional Responsibility and Disciplinary Rules 5-101 and 5-102 expressly prohibited counsel from acting in a dual capacity as witness and attorney in this litigation.

Appealing, Hero points out that its attorney of record in the instant suit did not personally participate in the earlier Tusson litigation, although he is a member of the firm that did. Plaintiff further argues that the testimony of firm members in the instant judge-tried action will concern routine matters largely pertaining to the value of legal services rendered in the earlier case without any danger of jury confusion. Hero likewise distinguishes Gutierrez v. Travelers Ins. Co., 358 So.2d 349 (La.App. 4th Cir.1978), relied on by the trial judge, on the grounds that the attorney in Gutierrez was- actively involved in the case both as a primary witness and as attorney for his plaintiff stepmother in her suit for widow’s benefits under the worker’s compensation law following the death of the attorney’s father.

Although we recognize factual distinctions between Gutierrez and the instant case that militate against disqualification of Hero’s attorney, we are compelled to apply the provisions of the Code of Professional Responsibility as written. Moreover, we cannot say the testimony of Hero’s counsel will relate to uncontested or merely formal matters, since there is a factual dispute concerning the loss of the transcript. We point out also that the trial court is in a better position to make a decision concerning disqualification of counsel. See Exnicios v. Saunders, 448 So.2d 751 (La.App. 4th Cir.1984). Accordingly, we find no error.

Consistent with the foregoing, that portion of the judgment dismissing plaintiffs’ suit on an exception of prescription of action is reversed and set aside. In all other respects the judgment is affirmed. The matter is remanded to the trial court for further proceedings consistent herewith. Costs of this appeal are assessed against defendant; assessment of other costs to await the outcome of the case.

REVERSED AND SET ASIDE IN PART; AFFIRMED IN PART; REMANDED.

      . Although reference is made to a missing "transcript” implicit is the fact that the notes from which the transcript was made were also missing.

      . See Acts 1984, No. 538, which provides for a $10,000.00 bond. The act further provides in pertinent part:
      "... The bond shall be in favor of the judge making the appointment and any party litigant for the purpose of protecting litigants against any acts of incompetence or neglect of duty on the part of the reporter....”

      . DISCIPLINARY RULES
      DR 5-101. Refusing Employment When the Interests of the Lawyer May Impair His Independent Professional Judgment.
      (A) Except with the consent of his client after full disclosure, a lawyer shall not accept employment if the exercise of his professional judgment on behalf of his client will be or reasonably may be affected by his own financial, business, property, or personal interests.
      (B) A lawyer shall not accept employment in contemplated or pending litigation if he knows or it is obvious that he or a lawyer in his firm ought to be called as a witness, except that he may undertake the employment and he or a lawyer in his firm may testify;
      (1) If the testimony will relate solely to an uncontested matter.
      (2) If the testimony will relate solely to a matter of formality and there is no reason to believe that substantial evidence will be offered in opposition to the testimony.
      (3) If the testimony will relate solely to the nature and value of legal services rendered in the case by the lawyer or his firm to the client.
      (4)As to any matter, if refusal would work a substantial hardship on the client because of the distinctive value of the lawyer or his firm as counsel in the particular case.
      DR 5-102. Withdrawal as Counsel When the Lawyer Becomes a Witness.
      (A) If, after undertaking employment in contemplated or pending litigation, a lawyer learns or it is obvious that he or a lawyer in his firm ought to be called as a witness on behalf of his client, he shall withdraw from the conduct of the trial and his firm, if any, shall not continue representation in the trial, except that he may continue the representation and he or a lawyer in his firm may testify in the circumstances enumerated in DR 5-101(B)(1) through (4).
      (B) If, after undertaking employment in contemplated or pending litigation, a lawyer learns or it is obvious that he or a lawyer in his firm may be called as a witness other than on behalf of his client, he may continue the representation until it is apparent that his testimony is or may be prejudicial to his client.


author: SCHOTT, Judge.

text:
    Karen M. FRANCE, Dative Testamentary Executrix of the Succession of Enrico P. Russo v. Lorraine T. CAHILL, American Bank & Trust Company, and/or National American Bank of New Orleans.
    No. CA 1854.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 14, 1984.

      George L. Wax; Val A. Schaff, III, Schaff & Currier, New Orleans, for plaintiff-appellee.
    Maurice B. Freidman, New Orleans, for defendant-appellant, Lorraine T. Cahill.
    Before GULOTTA, SCHOTT and WARD, JJ.
   SCHOTT, Judge.

This is a suit by Karen M. France, as executrix of the succession of her uncle, Enrico P. Russo, to compel defendant, Lorraine T. Cahill, to return to the succession $27,800 she allegedly took from the decedent during his last days. Defendant contended that the decedent gave her the money as a donation. From a judgment in favor of the executrix defendant has appealed. The sole issue is whether the trial court’s credibility determination can be set aside.

Defendant is the surviving sister of decedent and for some time prior to his death on January 15, 1981 she cared for him in his illness. She had his power of attorney to handle his banking and had possession of a number of blank slips signed by decedent authorizing the bank to allow withdrawals from his savings accounts. Using these withdrawal slips she withdrew $20,-000 and $7,800 respectively on January 9 and 12, 1981 and the bank, relying on the power of attorney given her by decedent, issued certified checks to her order for like amounts.

Karen France testified that her aunt, the defendant, told her she was withdrawing the money to save inheritance taxes; that she would keep it for Karen but return it to the account if decedent recovered. Karen further stated that defendant suggested she draw up some document which would divide the money in three parts, one for defendant, one for Karen, and one for defendant’s son, Gregory Cahill.

Charles France, Karen’s father, testified that defendant told him on January 9 that she was going to withdraw some money from decedent’s account to save inheritance taxes for Karen and Gregory Cahill who were the expected legatees of decedent.

Defendant testified that the entire savings account was a gift to her from decedent, and she denied ever saying she was simply withdrawing the money to save taxes.

In rebuttal, decedent’s close friend and accountant testified that defendant told him one day at the hospital that she withdrew the money to avoid inheritance taxes.'

The trial judge remarked at the conclusion of the trial that he regarded the case as a “swearing match,” and in extensive reasons for judgment he made it clear that he disbelieved defendant and believed the others.

In order for defendant to prevail she had the burden of proving that decedent intend: ed to make a donation of the money to her, Succession of Gorman, 209 La. 1092, 26 So.2d 150 (1946); and the proof to support a donation must be strong and convincing. Butler v. Reddick, 431 So.2d 396 (La.1983). In the present case defendant’s evidence consisted almost exclusively of her own testimony which was not deemed credible by the trial court. Since evaluation of credibility of witnesses is within the province of the trial court the inescapable conclusion is that defendant failed to prove the donations.

Accordingly, the judgment is affirmed.

AFFIRMED.


text:
    Doretha AUGUSTUS, Individually and on Behalf of Her Minor Child, Jasmin Augustus v. JOSEPH A. CRAIG ELEMENTARY SCHOOL, New Orleans Public Schools and the City of New Orleans.
    No. CA 1890.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 14, 1984.
    Clyde A. Ramirez, I. David Warner, III, Patricia D. Miskewicz, New Orleans, for plaintiff-appellee.
    James A. Gray, II, Jefferson, Bryan & Gray, New Orleans, for defendants-appellants.
    Before GULOTTA, SCHOTT and WARD, JJ.
   SCHOTT, Judge.

This suit arose out of an accident in which six year old Jasmin Augustus was injured while playing on the grounds of Craig Elementary School in New Orleans. From a judgment in favor of the child’s mother, defendant, Orleans Parish School Board, has appealed. The issue is whether the Board is liable as a matter of law to the child’s parent, because of lack of supervision even though the accident occurred after school hours.

We find the facts to be as follows: Jas-min was a kindergarten student at Craig school on the date of the accident. The school day ordinarily ended at 3:00 P.M. and the gates were usually locked at about 3:15 P.M. when all the children had left the grounds. On this day Jasmm and his nine year old cousin, Revia, left the school at three, but they returned at about 3:30 to participate in a track practice conducted by the Tambourine and Fan Club (T & F). T & F worked with the principal and the teachers to sponsor athletic events, educational programs and other activities with the approval of the Board’s District Superintendent. The principal announced to the children over the school’s public address system that T & F’s track practice would be held on the school grounds. The teachers distributed flyers to the children advertising the track practice, soliciting the parents’ permission for participation, and informing them as follows:

THIS IS A TAMBOURINE & FAN ACTIVITY; STAFFED BY TAMBOURINE & FAN, NOT BY CRAIG SCHOOL OR ORLEANS PARISH SCHOOL BOARD. HOWEVER THERE WILL BE TIGHT SUPERVISION.

When Jasmin and Revia arrived at the school for the practice the gates were open so they went in to wait for their T & F coach. While waiting along with other children they began to play with a tether ball pole which was an iron rod about four feet long mounted on a base of concrete in a rubber tire. Some of the children had laid the pole on its side in order to roll it around in a circle while the children jumped over it. As Jasmin was doing this he fell and the tire rolled on his head injuring him.

The same kind of accident occurred in Santee v. Orleans Parish School Bd., 430 So.2d 254 (La.App. 4th Cir.1983); i.e., a young child was injured from a tether ball pole being rolled around by other children in the school yard. This court held that the Board was liable because of its failure to supervise the children adequately. However, this occurred during school hours whereas Jasmin’s accident occurred at least a half hour after school closed.

Ordinarily there is no duty on a school to supervise a school yard after school hours, Ulm v. Gitz, 286 So.2d 720 (La.App. 4th Cir.1974); but under the facts of the instant case this general rule does not apply. While T & F was an independent group not formally related to or connected with the school, it had the permission of the Board’s District Superintendent and the school’s principal to use the school •grounds; the school’s principal and teachers worked with T & F’s personnel in various activities; and the principal announced the practice over the public address system. Perhaps most important of all, from a flyer distributed by the teachers the parents were assured that their children would be under “tight supervision” while they practiced on school grounds. Under the circumstances of this case we conclude that the trial judge properly concluded that the Board was liable for Jasmin’s injuries because it breached its duty to supervise the children.

Accordingly, the judgment is affirmed.

AFFIRMED.


text:
    Joycelin Bernhard, Wife of/and James A. BURNS, Jane McConnell, Wife of/and William F. Meliet, Individually and as Administrators of the Estate of Their Minor Daughter, Michell Meliet, Leona Clark McConnell, Leona B. Egan, Betty Eirich, Wife of/and Joseph V. Bennitte, Jr. and June Conand, Wife of/and Marvin J. Ackerman Individually and as Administrators of the Estate of Their Minor Daughter, Jennifer J. Ackerman v. HOLIDAY TRAVELS, INC., Pan American World Airways, Inc., Cunard Lines, Ltd., Sheraton Corporation, GWV Travel, Inc., ABC Insurance Company, XYZ Insurance Company, and DEF Insurance Company.
    No. CA 2031.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 14, 1984.

      Teresa R. Ogden, New Orleans, for plaintiffs-appellants.
    Suzanne P. Keevers, McGlinchey, Stafford, Mintz, Cellini & Lang (A Professional Law Corporation), New Orleans, for defendants-appellees.
    Before GULOTTA, SCHOTT and WARD, JJ.
   SCHOTT, Judge.

Plaintiffs, a group of travelers, brought this suit against a number of defendants for damages they suffered because of a series of difficulties and problems encountered on a Caribbean cruise tour. This appeal is by plaintiffs from a summary judgment dismissing their suit against one defendant, Sheraton Corporation, at whose hotel in Key Biscayne, Florida, they were lodged for the first evening of the tour. The principal issue is whether the case is controlled by Florida, rather than Louisiana, law so as to preclude plaintiffs from recovering for mental anguish, humiliation, and stress where there is no physical impact. A secondary issue is whether the applicable Florida law is a factual issue which precludes the granting of a summary judgment.

In their petition plaintiffs allege that because they failed to make flight connections in Miami which would place them in Puerto Rico for the start of their cruise, the airline put them up in defendant’s hotel in Key Biscayne for the night with the intention of flying them out on the following day. They further allege that the air conditioning broke down in the wing of the hotel where they were first lodged and they were caused mental anguish and physical distress by being required to move to another part of the hotel. Finally, they suffered again on the next day because defendant’s employees advised them to leave for the airport earlier than was necessary so that they had an extended wait in the Miami airport.

The law of Florida precludes recovery of damages for stress or mental anguish in the absence of some physical impact. On the other hand Louisiana law authorizes such recovery. In order to determine which state’s law controls the case both sides of this lawsuit agree that we must apply the “interest analysis” rule as in Jagers v. Royal Indemnity Company, 276 So.2d 309 (La.1973) and Succession of Dunham, 393 So.2d 438 (La.App. 1st Cir.1980), modified on other grounds, 408 So.2d 888 (La.1981). The factors relevant to a determination of which state has the greater interest in the litigation are as follows from Restatement, Second, Conflict of Laws, Section 6(2) (1969):

“(a) the needs of the interstate and international systems,
(b) the relevant policies of the forum,
(c) the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue,
(d) the protection of justified expectations,
(e) the basic policies underlying the particular field of law,
(f) certainty, predictability and uniformity of result, and
(g) ease in the determination and application of the law to be applied.”

The only interest Louisiana has in this case is that plaintiffs are her citizens. The arrangements for rooms in defendant’s hotel were made in Florida, the incidents giving rise to this suit happened there, and the particular hotel involved is located and operates there. The only connection it has with Louisiana is that there are Sheraton hotels here. We fail to see how that should create an interest in Louisiana as to how a Sheraton hotel runs in Florida.

Furthermore, Section 188(2) of the Restatement provides that in the case of a contract where the parties have not agreed on a choice of law to apply in a conflict situation, the interest analysis approach should be applied by considering the places of contracting and negotiation and performance of same, the location of the contract’s subject matter and the domicile and place of business of the parties. Again, only plaintiffs’ domiciles are in Louisiana. All other contacts here are in Florida. The contract was made in Florida where defendant’s business was located after plaintiffs missed their flight to San Juan.

If this case is viewed as a tort action, Section 145 of the Restatement provides these guidelines for choice of law: place where injury occurred, place where tort was committed, place where relationship between the parties was entered, and domicile and place of business of parties. Here again the only contact Louisiana has is the domicile of the plaintiffs. Everything else points to Florida.

Having concluded that Florida law is applicable we pass to plaintiffs’ other contention that summary judgment was inappropriate because Florida law must be proved as any other fact. We reject this argument because LSA-C.C.P. Art. 1391 specifically authorizes our courts to take judicial notice of the common law of a sister state and grants broad authority to a court in Louisiana to inform itself of such laws “in any manner as it may deem proper.”

Plaintiffs do not seem to deny that Florida law is as stated, and we are satisfied that recovery would not be authorized under that law. See Herlong Aviation, Inc. v. Johnson, 291 So.2d 603 (Fla.1974) and Gilliam v. Stewart, 291 So.2d 593 (Fla.1974).

Accordingly the judgment appealed from is affirmed.

AFFIRMED.


text:
    STATE of Louisiana v. Calvin L. RODNEY (AKA: Kalvin L. Gerold).
    No. KA 2130.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 14, 1984.
    William J. Guste, Jr., Atty. Gen., Barbara B. Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Joanne C. Marier, Asst. Dist. Atty., New Orleans, for plaintiff-appellee.
    Deana Greengus, Student Atty., Elizabeth W. Cole, Supervising Atty., New Orleans, for defendant-appellant.
    Before GULOTTA, SCHOTT and WARD, JJ.
   SCHOTT, Judge.

Defendant was convicted of two counts of simple robbery and sentenced to seven years at hard labor on each count to run concurrently.'

Joyce Washington and Livinia Sarrazan were robbed at gunpoint at 2:30 A.M. on August 31, 1983 of their jewelry and purses. On the afternoon of the same day Washington was looking for the jewelry in the neighborhood when she spotted the man who robbed her. She was in an automobile with her daughter, Gaynelle Anderson, who was driving, and two girls. Washington and one of the girls got out of the car to have a closer look at the man, and he picked up a white bag and ran away. Anderson pursued him in the car and saw him run into a house on Brainard Street. During the chase he dropped the bag once, and, as he picked it up, some things fell to the ground. Anderson got out of the car and picked some of these up which were identified by Washington as some of the jewelry stolen from her.

George Etienne, the owner of the Brai-nard Street house testified that he was on his way out of the house, when defendant, whom, he knew, came running in with a white bag and said he was being chased.

In the meantime the police had been summoned, they converged on the scene, and arrested defendant who was identified by' the victims and witnesses as the robber and the person they chased. After obtaining permission from Etienne, the police searched his house and found the bag defendant was carrying containing some of the victims’ jewelry and the clothing defendant wore when he committed the crime.

Washington and Sarrazan testified that they had $268.00 and $750.00 respectively in their purses. When he was arrested defendant had $1300.00 on. his person.

We have examined the record for errors patent and find none.

As can be seen from the above summary of the evidence, when it is viewed in the light most favorable to the prosecution any rational trier of fact could have found that the essential elements of the crime of simple robbery were proved beyond a reasonable doubt.

ASSIGNMENT OF ERROR 1

During her testimony Joyce Washington stated that she refused to discuss the case with defense counsel prior to trial as per instructions from the prosecution. Defendant moved for a mistrial which was denied. By this assignment he contends that he was deprived of his rights under the Sixth Amendment of the United States Constitution. He argues that he was unable to get the facts necessary to conduct an adequate cross-examination of Washington and was misled as to the strength of the prosecution’s case.

We are not persuaded that defendant’s Sixth Amendment right to confrontation of his adverse witnesses includes the right to interview them in advance of trial. In any event, defendant was not prejudiced because all of the facts testified to by Washington were brought out at the motions hearing twelve days before trial. This assignment has no merit.

ASSIGNMENT OF ERROR 2

By this assignment defendant complains because at the time of his arrest two other armed robbery charges were pending against him and yet all the money was admitted into evidence in this particular case without an identification of the money as that taken in this robbery. Defendant argues that this prejudiced him because the jury was misled as to the amount taken. This currency was properly identified as that which was found on defendant’s person some twelve hours after the robbery. It has some legitimate probative value. Nothing was said or done to suggest to the jury that some of the money was taken in other robberies. This assignment has no merit.

ASSIGNMENT OF ERROR 3

Prior to the judge’s charge to the jury defendant’s counsel formally requested that the court not define “reasonable doubt” since this might “invite the jury to convict on a lesser standard of proof.” Nevertheless, the judge included the following in his charge after the usual instructions on presumption of innocence, burden of proof, and reasonable doubt:

“Reasonable doubt is doubt that must be based upon reason and it must be substantial rather than speculative. It must be sufficient enough to cause a reasonable person to hesitate to act in important affairs of a person’s life. This doubt must be a reasonable one, one founded on a real tangible basis and not upon a mere conjecture. Reasonable doubt is not a mere possible doubt, it is an actual doubt. It is a serious doubt for which you could give a good reason. There would be reasonable doubt if, after all the evidence is compared and considered by you, and in your mind you do not have an abiding conviction to a moral certainty of the guilt of the defendant or defendants. A reasonable doubt is one based upon reason and common sense. I charge you that a defendant is never to be convicted upon mere suspicion, conjecture, or probability of guilt. If you entertain any reasonable doubt as to any element necessary to constitute the defendant’s guilt it is your sworn duty to give the defendant the benefit of that doubt and acquit him. On the other hand, if you find from the testimony and evidence that the State has proven the defendant guilty beyond a reasonable doubt then you are to return a verdict of guilty

By this assignment defendant contends that the words reasonable doubt are self explanatory and require no definition. He argues that the judge’s emphasis of the definition caused the jury to consider their own doubts as insufficient to meet the high standards of reasonableness set by the judge and to disregard their own doubts about the state’s case. Thus, says defendant, the jury was invited to convict on a lesser standard of proof than required.

Defendant’s arguments find some support in State v. McDaniel, 410 So.2d 754 (La.1982) where the court reversed a conviction because of the inclusion in the charge of a definition or discussion of the meaning of reasonable doubt which the court found to be misleading and confusing. Although the trial court is authorized by LSA-C.Cr.P. Art. 804 to define reasonable doubt, it is usually preferable to read only the language of Art. 804 and no more. State v. McDaniel, supra.

However, the charge in the instant case does not contain the language, “It [reasonable doubt] must be one that would make you feel morally uncertain as to the defendant’s guilt” which seemed to tilt the court toward a reversal in the McDaniel case. Furthermore, the reversal in McDaniel was based not only on the erroneous “morally uncertain” language of the charge but also because of other language in the charge which misled the jury from engaging in reasonable doubt because of a lack of evidence in the case.

The charge in the instant case is highly similar to the one in State v. Taylor, 410 So.2d 224 (La.1982) decided shortly before McDaniel. In Taylor the jury was told that reasonable doubt was “one that would make you feel that you had not an abiding conviction to a moral certainty of the defendant’s guilt,” and the court summarily dismissed defendant’s arguments that he was prejudiced.

We conclude, as in Taylor, that the charge is lengthy and to some extent confusing in parts, but, taken as a whole, is clear enough for a reasonable person of ordinary intelligence to understand the meaning of reasonable doubt. Thus, this assignment has no merit.

Accordingly the conviction and sentence are affirmed.

AFFIRMED.


author: GARRISON, Judge.

text:
    Elaine R. BRINKMAN v. AMERICAN MOTORS CORPORATION and Stephens AMC Jeep, Inc.
    No. CA 1920.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 14, 1984.

      Alan P. Dussouy, New Orleans, for plaintiff-appellant.
    Michael T. Pulaski and Eric Shuman, McGlinchey, Stafford, Mintz, Cellini & Lang, New Orleans, for defendant-appellee.
    Before REDMANN, C.J., and GARRISON and KLEES, JJ.
   GARRISON, Judge.

This is an appeal from a judgment of the district court dated October 24, 1983 granting the Exception of Prescription raised by defendant American Motors Corporation and dismissing plaintiffs suit. From that judgment, plaintiff appeals.

On September 20,1977 plaintiff Elaine R. Brinkman filed suit in the 24th Judicial District Court, Parish of Jefferson, against American Motors Corp. (A.M.C.) and Stephen’s A.M.C. — Jeep, Inc. (Stephen’s), a Jefferson Parish corporation, for injuries sustained by her on September 20, 1976 when the power brakes on her 1976 Pacer failed, causing her to run an intersection and strike a traffic sign and post. Plaintiff alleged that she had purchased the Pacer from Stephen’s in September, 1976.

The operative dates are as follows:

9/20/76 — Accident.
9/20/77 — Suit filed in 24th Judicial District Court against A.M.C. and Stephens.
9/23/77 — Service on Stephen’s.
9/27/77 — Service on A.M.C. through Secretary of State.
10/20/77 — Stephen’s moves for summary judgment on the grounds that they did not sell plaintiff the car. (Supporting affidavit attached.)
11/9/77 — Stephen’s Motion for Summary Judgment granted. (This judgment was not appealed.)
11/14/77 — A.M.C. moves to have the case transferred to Orleans Parish on grounds of improper venue.
12/20/77 — Motion to Transfer granted.
7/27/78 — Case lodged in Civil District Court in Orleans Parish.
(1978-1983) — Other exceptions not at issue.
6/16/83 — A.M.C. files an Exception of Prescription on the grounds that plaintiff failed to bring suit against the defendant within one year.
10/24/83 — Exception of Prescription granted.

Civil Code Article 3462 provides as follows:

“Prescription is interrupted when the owner commences action against the possessor, or when the obligee commences action against the obligor, in a court of competent jurisdiction and venue. If action is commenced in an incompetent court, or in an improper venue, prescription is interrupted only as to a defendant served by process within the prescriptive period.”

The new C.C. Art. 3462 cited above was enacted by Act 187, Acts of 1982 with an effective date of January 1, 1983. The source provision of C.C. Art. 3462 is the former R.S. 9:5801 which provided as follows:

“All prescriptions affecting the cause of action therein sued upon are interrupted as to all defendants, including minors or interdicts, by the commencement of a civil action in a court of competent jurisdiction and in the proper venue. When the pleading presenting the judicial demand is filed in an improper venue, prescription is interrupted as to the defendant served by the service of process.”

Under the prior statute, the general rule was the mere filing of suit in a court of competent jurisdiction and proper venue interrupted prescription as to all defend’ ants. Thus plaintiff could file suit timely in a court of competent jurisdiction and proper venue, even requesting that service of process be held, and prescription would be interrupted prior to service on the defendants. See: Miller v. NOPSI, 250 So.2d 108 (La.App. 4th, 1971). A corollary of the general rule was that where suit was filed in a court lacking either competent jurisdiction or proper venue, the mere filing of suit did not interrupt prescription, but rather actual service of process interrupted prescription. Miller, above. It appears that the new C.C.Art. 3462 merely codifies the prior existing statutory and jurisprudential rules.

In the instant case, suit was filed against A.M.C. in a court of improper venue. Accordingly, prescription could not have been interrupted until A.M.C. was served. A.M.C. was not served until September 27, 1977 — seven days after the one year prescriptive period. Accordingly, prescription was never interrupted and the suit against A.M.C. had prescribed. Thus the trial judge properly granted A.M.C.’s exception of prescription.

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

AFFIRMED.

      . Distinctions between C.C. Art. 3462 and R.S. 9:5801 and its jurisprudence on the issues of multiple defendants and definitions of causes of action are specifically not addressed as those issues are extraneous to the instant appeal.


author: GARRISON, Judge. REDMANN, Chief Judge,

text:
    JOSEPH FEIN CATERER, INC. d/b/a the Court of Two Sisters Restaurant v. E. Lorenz BORENSTEIN and E. Lorenz Borenstein d/b/a Jacinto Hotel.
    No. CA 1975.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 14, 1984.

      Joseph W. Nelkin and Warren J. Pickle, Baskin & Sears, P.C., New Orleans, for plaintiff-appellant.
    Charles E. McHale, Jr., New Orleans, for defendant-appellee.
    Before REDMANN, C.J., and GARRISON and KLEES, JJ.
   GARRISON, Judge.

This is an appeal from a judgment dismissing plaintiff Fein’s petition for damages for the wrongful issuance of a temporary restraining order. The following chain of events preceded this lawsuit: The late Mr. Joseph Fein and the late Mr. E. Lorenz Borenstein owned adjoining property in the French Quarter which shared a common wall. In April, 1974, the construction of additions and alterations began on Fein’s property on which the Court of Two Sisters Restaurant is located. On April 26, 1974, Borenstein filed a petition to “abate a nuisance under Louisiana Civil Code Article 666-669” and asked for a temporary restraining order. The order was issued on April 29, 1974 and remained in effect for seventeen days. On May 7,1974, Fein filed an answer and reconventional demand in which he requested that the temporary restraining order be dissolved and that he be awarded damages and attorney’s fees for the wrongful issuance of the order. Additionally, Fein filed an exception of no cause of action. On May 15, 1974, Fein’s exception of no cause of action was maintained and his rule to set aside the temporary restraining order was made absolute. Bor-enstein appealed from the judgment maintaining the exception of no cause of action. On February 14, 1975, the Fourth Circuit Court of Appeal reversed the decision of the trial court and held that Borenstein had stated a cause of action in his petition. Therefore, the judgment maintaining the exception of no cause of action was annulled and the case was remanded to the trial court to await further action. On March 14, 1980, Fein filed a motion to dismiss Borenstein’s case for want of prosecution stating that more than five years had elapsed from the refusal of the Court of Appeal to rehear its decree. This motion was granted and the case was dismissed. On March 14, 1980, Fein filed a new petition for damages for the unauthorized use of the injunctive process. In this petition, Fein asked for the same relief for which he prayed in the reeonventional demand of the earlier case. On April 29, 1981, Borenstein filed a motion to dismiss the reeonventional demand of the earlier case for want of prosecution. This step was necessary because the dismissal of the main demand in the earlier suit did not affect the reeonventional demand. Therefore, when Fein filed the suit of March 14, 1980, the reeonventional demand of the earlier case which asked for the same relief was still a viable petition. The motion to dismiss the reeonventional demand was granted by the trial judge.

After trial on the merits of the present suit, the trial judge dismissed Fein’s petition. The trial judge concluded that two theories of recovery are available for the wrongful issuance of a temporary restraining order: (1) Code of Civil Procedure Article 3608 and (2) the theory of malicious prosecution as discussed in the case of Grisaffi v. Roy, 400 So.2d 256 (La.App. 4th Cir.1981).

Code of Civil Procedure Article 3608 states as follows:

The court may allow damages for the wrongful issuance of a temporary restraining order or preliminary injunction on a motion to dissolve or on a reconven-tional demand. Attorney’s fees for the services rendered in connection with the dissolution of a restraining order or preliminary injunction may be included as an element of damages whether the restraining order or preliminary injunction is dissolved on motion or after trial on the merits.

The trial judge concluded that Fein could not recover under this article because he sought damages with a new petition rather than with a motion to dissolve or with a reeonventional demand. Counsel for Fein argues that this reasoning is a misinterpretation of C.C.P. Art. 3608. He argues that a motion to dissolve and a reeonventional demand are not the exclusive vehicles by which an action for the wrongful issuance of a temporary restraining order may be asserted; rather, he contends that Article 3608 merely provides these methods as an alternative to the offended party.

We interpret the word “may” in this article to mean only that the decision whether or not to award damages for the wrongful issuance of a temporary restraining order is within the trial judge’s discretion. It is clear from the article that if such an action for damages is pursued, it can only be asserted by way of a motion to dissolve or a reeonventional demand. Therefore, we agree with the trial court’s decision to disallow Fein’s recovery under this article.

On the issue of recovery under a malicious prosecution theory, the controlling case is Grisaffi v. Roy, supra. The trial judge concluded that Fein failed to establish two of the six elements for recovery under a malicious prosecution theory as required by Grisaffi: 1) absence of probable cause and 2) malice. A review of the record indicates that no evidence was introduced at trial by the plaintiff to prove the existence of either of these elements. Furthermore, testimony was given at trial which indicated that Mr. Borenstein’s only concern in this action was the protection of his property rights. This testimony was introduced in order to rebut any possible inference of malice on Mr. Borenstein’s part. It should be noted that the plaintiff’s case at trial consisted exclusively of testimony as to quantum. Additionally, counsel for Borenstein presents the further argument that a third element necessary for a malicious prosecution suit has not been established, i.e. the bona fide termination of the prior lawsuit in favor of the present plaintiff. In this case, neither party prevailed in the prior suit because the case was remanded to the trial court and later dismissed for want of prosecution.

The plaintiff has failed to establish these three essential elements for recovery under a malicious prosecution theory. Therefore, we affirm the trial court’s decision to dismiss plaintiff’s petition. All costs are assessed to the plaintiff.

AFFIRMED.

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

REDMANN, Chief Judge,

concurring.

C.C.P. 3608 and its source, C.P. 375 (1870), provide, contrary to the general rules, (1) that damages may be sought by the summary procedure of the motion to dissolve rather than by ordinary procedure, and (2) that reconvention in the ordinary mode of procedure is allowable although the principal action is brought in the summary mode as one of the “otherwise” exceptions to C.C.P. 1036’s requirement that the mode of procedure in incidental and principal actions “shall be the same ..., except as otherwise provided by law.”

The notion that one could not claim damages by ordinary process is novel, despite the “Moreover” obiter dictum of Grisaffi v. Roy, 400 So.2d 256, 259 (La.App. 4 Cir. 1981), that reads art. 3608’s “may” as “may only.” (Art. 3608’s words are: “The court may allow damages ... on a motion to dissolve or on a reconventional demand.” Grisaffi reads it: “Art. 3608 provides that damages ... may only be allowed upon either a motion to dissolve or on a recon-ventional demand.”)

It appears to this writer a fundamental concept that any claim presentable by re-convention is presentable by independent action. Even the projet of the 1825 Code of Practice, in an article closely following the source of C.P. 375 (1870), expressly so declares. See also La. Const, art. 1 § 22’s guarantee that courts “shall be open ... [to afford] adequate remedy ... for injury

I concur in the affirmation on the ground that defendant’s exception of prescription should have been maintained.