author: LEMMON, Justice.

text:
    STATE of Louisiana v. John F. FULLER.
    No. 83-KA-0619.
    Supreme Court of Louisiana.
    June 25, 1984.
    Rehearing Denied Sept. 14, 1984.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Nathan Stansbury, Dist. Atty., Robert Cline, Glen B. Foreman, Asst. Dist. Attys., for plaintiff-appellee.
    Emile A. Carmouche, Gretna, for defendant-appellant.
   LEMMON, Justice.

This is an appeal from a conviction of first degree murder and a sentence of death. We find no merit in the two principal issues regarding the guilt phase and therefore affirm the conviction. However, the necessity for development of additional facts relative to excessiveness of sentence causes us to remand the case to the trial court on the sentencing issue for a determination of the competency of counsel’s performance at the penalty phase.

The two critical guilt phase issues are (1) whether the trial court erred in permitting the prosecutor to cross-examine defendant concerning the content of a letter written by defendant to his wife, despite his assertion of the marital privilege, and (2) whether the trial court erred in disqualifying a juror during trial and replacing him with an alternate after determining at a contradictory hearing (with all parties present) that the juror had violated the rule of sequestration by leaving his motel room in the evening to go to the motel bar.

Facts

On the morning of January 19, 1981, the body of the victim (who was defendant’s mother-in-law) was discovered lying in bed at her home. She had been shot twice in the head. Finding no signs of forcible entry, the police questioned defendant’s wife about family members who owned guns and determined that defendant owned a small caliber pistol. The police stated that they planned to speak with both defendant and the victim’s other son-in-law.

Shortly thereafter, defendant voluntarily appeared at police headquarters and presented his pistol, which was the same caliber as the bullets removed from the victim’s head. Defendant claimed that the pistol had only been used to shoot at targets. He also offered to turn over a magnum cylinder for the pistol, which he did on a return trip to the station shortly thereafter.

The crime lab examined the pistol and discovered a gray human hair and traces of human blood on the barrel. Human tissue was also discovered on the front sight.

Upon request, defendant again returned to the station, where he was advised of his constitutional rights. Agreeing to answer questions, defendant gave an exculpatory recorded statement denying any involvement with his mother-in-law on the day of her death and reasserting that the gun had been used only for target shooting.

After defendant ate a hamburger with the officers, he was again advised of his rights and was informed that human hair, tissue and blood had been found on his gun. At that point defendant began to cry.

An officer then noticed and inquired about a scratch on defendant’s hand. Defendant denied knowing how he got the scratch. In response to questions about other scratches, defendant showed officers a rather deep scratch on his stomach, a scratch on the back of his shoulder, and a small scratch on the back of his neck. Defendant told the officer that he thought his 14-month old daughter had given him these scratches.

Upon further questioning, defendant admitted going to the victim’s house about 11:00 p.m. on the night of the murder and entering the back door without knocking by use of his wife’s key. He also conceded that this was not his usual method of visiting his mother-in-law. He claimed no memory of what transpired after he went to her bedroom, but remembered going out the back door with his gun in his hand.

Continued questioning produced a statement in which defendant remembered the events of the evening, but claimed that his mother-in-law, asleep when he entered her bedroom, thought he was a burglar. She scratched him, tore his shirt, and grabbed his gun, which discharged accidentally. When he tried to pull the gun away, it discharged again. At that point, defendant was formally arrested.

In the meantime, the crime lab conducted an examination of the bank envelope found in the victim’s open purse next to her bed and discovered defendant’s fingerprints on the envelope. Defendant’s wife informed the police that the envelope had contained $80 to $85 on the day of the murder and that she later found $82 in cash hidden in a cabinet in her home. The investigation also revealed that the victim had bruises on her hands and skin under her fingernails.

Defendant was eventually indicted for first degree murder committed during an aggravated burglary. See La.R.S. 14:30 and La.R.S. 14:60. At his trial, defendant denied any involvement, accidental or otherwise, in the victim’s death. He testified that his “accidental shooting” story was given to protect his wife, because he assumed she was responsible for killing the victim. He was cross-examined concerning two letters he wrote to his wife while he was in jail, in which he claimed that the shooting was accidental. These letters, of course, contradicted defendant’s trial testimony, while being consistent with his final statement to the police. The jury obviously did not believe defendant and found him guilty as charged.

The evidence, when viewed in the light most favorable to the prosecution, was clearly sufficient to sustain the verdict. The jury reasonably concluded that defendant surreptitiously and without authorization entered the victim’s home armed with a dangerous weapon, with intent to steal her money, and that he intentionally shot and killed her during the course of this aggravated burglary.

Marital Privilege

Defendant challenges the prosecutor’s use in cross-examination of a letter that he wrote to his wife while he was in jail awaiting trial. In the letter he asserted that he had shot his mother-in-law accidentally.

The issue of whether a letter (a written communication) by a defendant to his wife is included within the scope of the “confidential connubial conversation” privilege in Louisiana is not res nova. In State v. Morgan, 147 La. 205, 84 So.2d 589 (1920), this court held that such a letter written by a defendant to his wife was not included within the scope of the statutory privilege for “private conversations between husband and wife”. Act 157 of 1916 (then applicable) contained the same language as the present La.R.S. 15:461.

The result in Morgan has been criticized. Nevertheless, we agree that the trial court ruled correctly in permitting the cross-examination about the letter.

Statutory privileges should be given a “genuine” construction. See State ex rel. Sullivan v. Maggio, 432 So.2d 854 (La.1983). Although privileges serve to foster a relationship (in this instance the husband-wife relationship), they disserve the truth-seeking function of the adversary trial. The Legislature, by continuing to utilize the same “private conversations ” language in the 1928 Code of Criminal Procedure and in the Revised Statutes of 1950, was obviously satisfied that excluding oral conversations alone (rather than written messages sent through the mail) was a sufficient price in terms of “truth suppressing” to pay to foster the matrimonial relationship. This was properly a decision made by the Legislature, and the court’s role is to follow that decision. If not satisfied with this result, the Legislature can certainly expand the scope of the privilege to include all written and oral communications.

Furthermore, expansive construction of the privilege is particularly inappropriate in this case. Defendant made the assertions about an accidental killing to his wife in an effort to deny culpability for killing her mother. The state introduced the assertions only after defendant’s testimony at trial accused his wife of murdering her mother. The statements contained in defendant’s letters, being inconsistent with his trial testimony accusing his wife, had substantial impeachment value and diminished the credibility of his accusation against his wife.

In determining the applicability of a privilege, a court should “inquire whether information sought to be excluded is really in the class whose exclusion will advance the policy” sought to be furthered by the privilege. See State v. Aucoin, 362 So.2d 503, 506 (La.1978). In the present case, exclusion does not serve the policy of fostering matrimonial harmony. When a husband on trial for the murder of his wife’s mother attempts to place the blame on his wife, prior inconsistent written assertions to his wife ought to be admissible to challenge the credibility of the husband’s trial testimony, even if the same statements arguably might be privileged under some other circumstances.

Replacement of the Juror

The jurors were sequestered throughout the trial. During the evening of the next to last day of trial, after all evidence had been presented, one of the jurors disregarded the judge’s sequestration order and apparently went to a bar in the motel where the jurors were staying. He had been there for about an hour when the bailiff discovered him and returned him to his room.

The next morning the judge conducted a hearing and conscientiously examined that juror and the other jurors to determine the extent of the transgression. The juror claimed that the only person with whom he conversed was the barmaid. The other jurors testified that they had not discussed the case with anyone.

Although the juror denied discussing the case or the fact that he was a juror with the barmaid, there is no doubt that the juror willfully disobeyed the sequestration order and was not “secluded from outside communication”. Confronted with this situation in a capital case (where sequestration is mandatory), the judge chose to replace the transgressing juror with an alternate. Defense counsel objected to this action and moved for a mistrial based on the juror’s misconduct.

The trial judge was called upon to decide whether the juror had become disqualified to perform his duties and, if so, what action to take. La.C.Cr.P. Art. 789. The judge acted properly in holding an evidentiary hearing, with all parties present, to determine the existence of a violation of his order, the nature and extent of the violation, and the appropriate solution to the problem.

The juror assured the judge that he did not, while in the bar, compromise his position by discussing the case or his status as a juror. Although a judge under some circumstances may have been satisfied that such a showing overcame the presumption of prejudice flowing from a sequestration violation, the judge in this instance determined that the essential fairness of the proceeding could best be preserved by replacing the juror with the properly qualified and duly selected alternate. Moreover, the judge’s decision to replace the juror, rather than to declare a mistrial, was largely justified by the facts that the violation had occurred during the evening recess and that the other jurors had denied that they were exposed to any outside influence possibly resulting from the violation.

The trial court has discretion to utilize the service of an alternate juror, rather than to grant a mistrial, upon a proper finding that this is the best course of action. Thus, when it was shown that a juror was unable to continue to serve because of the physical disability that was involved in State v. Spencer, 446 So.2d 1197 (La.1984), or was “disqualified” from further service because of the blatant display of prejudices and partiality that was involved in State v. Marshall, 410 So.2d 1116 (La.1982), the replacement of the juror with the alternate has been approved by this court.

The trial judge in this case acted in a fair and deliberative manner when he decided that the juror’s willful violation of the order by going to the motel bar was a sufficient ground to disqualify him from further service. The judge also considered alternative courses of action. Replacing the juror with the alternate under the overall circumstances was a proper exercise of the trial judge’s discretion.

Capital Sentence Review

Supreme Court Rule XXVIII requires this court to review every death sentence to determine the following:

“(a) whether the sentence was imposed under the influence of passion, prejudice or any other arbitrary factors, and
“(b) whether the evidence supports the jury’s finding of a statutory aggravating circumstance, and
“(c) whether the sentence is disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.”

In recommending the death penalty, the jury found two aggravating circumstances: the murder was committed during the commission of an aggravated burglary and the murder was committed in a particularly cruel, atrocious and heinous fashion. As noted earlier, the evidence is plainly sufficient to support the jury’s finding (necessary for both guilt and penalty) that defendant was engaged in the perpetration of an aggravated burglary of his mother-in-law's home when he murdered her. Because this aggravating circumstance is adequately supported, we need not consider whether the evidence also supports a finding that the killing was committed in a cruel, atrocious, and heinous fashion. See Zant v. Stephens, 462 U.S. 862, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983); State v. Sawyer, 442 So.2d 1136 (La.1984) (on remand). Because the evidence offered in support of that aggravating circumstance was otherwise admissible, introduction of that evidence did not inject an arbitrary factor into the proceedings.

Although the evidence adequately supports a finding of at least one of the aggravating circumstances relied on by the jury and the present record does not indicate that the sentence was disproportionate or was imposed under the influence of passion, prejudice or any other arbitrary factors, we are hampered in our review for excessiveness by the fact that defense counsel did not offer any evidence in mitigation at the penalty hearing and did not make any argument to persuade the jury to spare defendant’s life. After presenting a spirited and thorough defense in the guilt phase, defense counsel presented little in the way of defense in the penalty phase. See State v. Myles, 389 So.2d 12 (La.1979); State v. Felde, 422 So.2d 370 (La.1982); see also State v. Berry, 430 So.2d 1005 (La. 1983).

Because of this consideration, we are disinclined at this stage either to affirm or reverse defendant’s death sentence on this record. We cannot, for example, determine on the present record whether counsel’s decision not to present evidence in mitigation or to advance arguments in support of a life sentence was a choice dictated following consultation with defendant or was a tactical decision of counsel that such action was the best means of prevailing at the sentencing hearing. Nor can we determine the existence, character and weight of mitigating evidence that might have been available. See State v. Felde, above; State v. Berry, above. Additional factual development would be helpful to the determination of the excessiveness of the sentence.

The rules of this court governing capital sentencing hearings have provided for this type of situation. In State v. Smith, 400 So.2d 587 (La.1981), we affirmed defendant’s conviction, but remanded to the trial court under Supreme Court Rule XXVIII, § 5, for development of additional facts (not introduced into evidence at the trial, but contained in the sentence investigation report of the probation and parole agent) and for an initial determination by the trial court of the necessity of a new penalty hearing. Because (among other things) we were “not presently in a position to determine whether failure to call these individuals [who related the facts contained in the sentence investigation report] as witnesses was error or the result of trial strategy and professional judgment”, we directed the trial court to conduct a hearing and to determine whether the evidence adduced at the hearing created a reasonable doubt as to the excessiveness of the death sentence.

In the present case, although the question is the competency of counsel and not the sufficiency of evidence of aggravating circumstances, the procedure should nevertheless be the same. Moreover, the apparent motive underlying the remand in Smith was the avoidance of a future postconviction application based on ineffective assistance of counsel for failure to present the available evidence.

After the hearing on remand in this case, the trial judge should determine whether defendant received effective assistance of counsel, despite his attorney’s failure to offer evidence in mitigation and to argue to the jury that defendant’s life should be spared. See State v. Myles, above; State v. Berry, above; State v. Felde, above. See also Strickland v. Washington, — U.S. —, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

Since defendant’s trial counsel may be called to testify as a witness, a new attorney must be appointed to represent defendant at the hearing on remand. If the trial court concludes that a new penalty hearing is required, the trial court should order a new penalty hearing. If the trial court denies relief, defendant may again appeal to this court for review of that decision.

Therefore, defendant’s conviction of first degree murder is affirmed, but determination of the excessiveness of his death sentence is pretermitted, and the case is remanded to the trial court for an evidentiary hearing on the effectiveness of counsel, after which the trial court shall decide whether the evidence requires the court to vacate the sentence and to grant a new penalty hearing. If the death sentence is not set aside on remand, defendant may again appeal his sentence.

DIXON, C.J., concurs.

      . Defendant’s other contentions lack any arguable merit and are treated in an unpublished appendix, which is part of the official record in this case.

      . The state presented evidence at trial that a safety device on the gun would have prevented accidental discharge. The pistol is a single action, long barrel revolver which must be cocked and the trigger depressed before the gun can fire.

      .La.R.S. 15:461(1) provides:
      “The competent witness in any criminal proceeding, in court or before a person having authority to receive evidence, shall be a person of proper understanding, but;
      "(1) Private conversations between husband and wife shall be privileged."

      . See 8 Wigmore, Evidence § 2339 (McNaughton rev. 1961).

      . The Louisiana Law Institute has an ongoing project to propose a Code of Evidence for Louisiana.

      . Supreme Court Rule XXVIII, § 5 (1974) provides that "[t]he court may remand the matter for the development of facts relating to whether the sentence is excessive (Emphasis supplied.)

      . In Smith, the jury was presented evidence of an unprovoked shooting by a black defendant at a group of white males. The sentence investigation report indicated that there had been a recent confrontation after which the white victim left the group and proceeded toward the black defendant. The additional facts could have been highly relevant to the finding of the aggravating circumstance (creation of risk of great bodily harm to more than one person) and to the existence of mitigating circumstances not disclosed to the jury.
      Because the defendant died before the hearing on remand, the case did not come back to this court.

      . Ineffective assistance of counsel in the penalty phase of capital cases is a recurring problem. In many cases (including this one), defense counsel, after vigorously contesting the guilt phase, has turned the case over to the jury for penalty determination with little additional evidence or argument, perhaps because, the emotional and physical strain on the sole defense counsel in the losing effort in the guilt phase lessens his ability to maintain the same performance level in the immediately following penalty phase. Possibly the trial judge can alleviate this problem by appointing two defense attorneys (as many trial judges now do) and by allocating specifically to one the principal responsibility for preparing evidence and argument for the penalty phase.

      . In defining the content of "reasonably effective assistance”, the Court in Strickland stated that a defendant's challenge to the competency of counsel's representation at a death sentence proceeding has two components:
      "First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.” — U.S. at-, 104 S.Ct. at 2064.
      ******
      "When a defendant challenges a death sentence ..., the question is whether there is a reasonable probability that, absent the error, the sentencer — including an appellate court, to the extent it independently reweighs the evidence — would have concluded that the balance of aggravating and mitigating circumstances did not warrant death." — U.S. at -, 104 S.Ct. at 2069.

      .In order to comply with the spirit of La.C. Cr.P. Art. 512, the new attorney should also have at least five years experience at the bar.


source: Caselaw Access Project

author: WATSON, J.,

license: Public Domain

text:
    Theo GUIDRY, Jr. v. Rachell Lynn Malhiot GUIDRY.
    No. 84-CC-1527.
    Supreme Court of Louisiana.
    Aug. 15, 1984.
    Writ Granted Aug. 28, 1984.
   In Re: Guidry, Rachell Lynn Malhiot, Applying for WRIT OF MANDAMUS Parish of Calcasieu 14th JUDICIAL DISTRICT COURT Div. “F” Number 81-3512; to the Court of Appeal, Third Circuit, Number 84-736.

Denied. Hearing has been set for August 16.

DENNIS, J., would grant the writ.

WATSON, J.,

concurs in the denial because the hearing is fixed for August 16, but notes the apparent impropriety of ordering a change of custody ex parte.


text:
    Richard P. BOYD, Jr., et al. v. LOUISIANA STATE EMPLOYEES’ RETIREMENT SYSTEM, et al.
    No. 84-C-1046.
    Supreme Court of Louisiana.
    July 17, 1984.
   In re Louisiana State Employees’ Retirement System, et al., applying for writ of certiorari, or review, to the First Circuit Court of Appeal, 453 So.2d 243; Parish of East Baton Rouge, 19th Judicial District Court, No. 272192, Division K.

Denied.

L. JULIAN SAMUEL, J. Pro Tempore, would grant the writ.

CALOGERO, MARCUS, DENNIS and LEMMON, JJ., recused.


text:
    STATE of Louisiana v. Carl FLORANT.
    No. 84-KK-1184.
    Supreme Court of Louisiana.
    Aug. 13, 1984.
   In re Carl Florant, applying for writ of certiorari, prohibition and mandamus to the Court of Appeal, Fifth Circuit, No. 84-K-324; Parish of Jefferson, 24th Judicial District Court No. 81-1094.

Granted. All proceedings are stayed. The case is remanded to the Court of Appeal for briefing and opinion.

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


text:
    STATE of Louisiana v. Carl FLORANT.
    No. 84-KK-1183.
    Supreme Court of Louisiana.
    Aug. 13, 1984.
   In re Carl Florant, applying for writs of certiorari, prohibition and mandamus to the Court of Appeal, Fifth Circuit, No. 84-K-255; Parish of Jefferson, 24th Judicial District Court, No. 81-1274.

Denied.

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


text:
    Annie A. SMART, Lenora R. Jackson and Leola S. Jackson v. Gordon CURRY and James H. “Jim” Brown, in his capacity as Secretary of State, State of Louisiana.
    No. 84-C-1515.
    Supreme Court of Louisiana.
    Aug. 13, 1984.
   In re Smart, Annie A. et al., Jackson, Lenora R., Jackson, Leola S., applying for writ of certiorari, writ of review to the Court of Appeal, First Circuit, No. 84-CE-0977; Parish of East Baton Rouge, 19th Judicial District Court, Div. “E”, No. 279-852.

Denied.


text:
    STATE of Louisiana v. Rickey McKEEL.
    No. 84-KD-1520.
    Supreme Court of Louisiana.
    Aug. 14, 1984.
   In re McKeel, Rickey, applying for writ of habeas corpus, Parish of Orleans, Criminal District Court, Div. “B”, No. 281-490.

Granted. The defendant’s conviction was reversed by a decree of this Court on June 25, 1984. Accordingly the defendant is ordered discharged as to this charged offense.


text:
    STATE of Louisiana v. Troy MILLER.
    No. 84-KD-1533.
    Supreme Court of Louisiana.
    Aug. 16, 1984.
   In re Miller, Troy, applying for writ of certiorari, Stay, Parish of Orleans, Criminal District Court, Div. “B”, No. 298-017.

Granted and transferred to the Court of Appeal for its consideration and action on the application.


text:
    Donald E. LEWIS and Capital City Press v. Petr L. SPURNEY, Lee Randall and Louisiana World Exposition, Inc.
    No. 84-OC-1540.
    Supreme Court of Louisiana.
    Aug. 20, 1984.
   In re Lewis, Donald E. et ah, Capital City Press, applying for writ of certiorari, prohibition and mandamus, to the Court of Appeal, Fourth Circuit, No. 2650; Parish of Orleans, Civil District Court, Div. “A”, No. 84-10794.

Granted. Court of Appeal is ordered to hear this case on or before its next scheduled docket and to decide same expeditiously.


text:
    IMES & ASSOCIATES, INC., Ivan Imes and Lynda Imes v. GENERAL MOTORS CORPORATION.
    No. 84-CC-1499.
    Supreme Court of Louisiana.
    Aug. 20, 1984.
   In re Imes & Associates, Inc. et ah, Imes, Ivan, Imes, Lynda, applying for writ of certiorari, writ of review, supervisory writ, Parish of East Baton Rouge, 19th Judicial District Court, Div. “E”, No. 273,724; to the Court of Appeal, First Circuit, No. CW-84-0916.

Writ granted. Application transferred to Court of Appeal for consideration and decision on the merits of the issues presented.

LEMMON, J., would grant the writ.


text:
    Thomas W. PAPAZOGLAKIS, Individually and As Administrator of the Estates of his Minor Children, Erika Ainslie Papazoglakis, Androniki Elizabeth Pa-pazoglakis and Sarah Ann Papazoglak-is and Mrs. Elizabeth Brumfield Papa-zoglakis v. MATHERNE BROTHERS, a Louisiana Partnership, Joseph A. Alexander, Louisiana Farm Bureau Mutual Insurance Company, Mrs. Harry Richard, Harry Richard, State Farm Mutual Automobile Insurance Company and USSA Casualty Insurance Company. James PAKIS, Mrs. Janis Whitmer Pakis, Catherine Elizabeth Pakis, Mrs. Adrienne Pakis-Gillon, and Mrs. Helen Pak-is Bennett v. MATHERNE BROS., a Louisiana Partnership, Joseph A. Alexander, Louisiana Farm Bureau Mutual Insurance Co., Mrs. Harry Richard, Harry Richard and State Farm Mutual Automobile Insurance Company.
    No. 84-CC-1544.
    Supreme Court of Louisiana.
    Aug. 20, 1984.
   In re Louisiana Farm Bureau Ins. Co., applying for writ of certiorari, writ of mandamus and prohibition, Parish of La-fourche, 17th Judicial District Court, Div. “A”, Nos. 47979, 47986; to the Court of Appeal, First Circuit, Nos. CW-841016, CW-841025.

Denied.

BLANCHE and LEMMON, JJ., would grant the writ.


text:
    Charlene G. ALEXANDER, Individually and as wife of/and Sidney Alexander v. CITY OF NEW ORLEANS Individually and d/b/a City of New Orleans Fire Department and XYZ Insurance Company and Kemper Insurance Company.
    No. 84-OC-1434.
    Supreme Court of Louisiana.
    Aug. 20, 1984.
   In re Alexander, Charlene G. et vir, Alexander, Sidney, applying for writ of certiora-ri, writ of review, supervisory, to the Court of Appeal, Fourth Circuit, No. CA-1114; Parish of Orleans, Civil District Court, Div. “E”, No. 80-9837.

Application denied. Motion denied.


text:
    WERNER ENTERPRISES, INC. v. WESTEND DEVELOPMENT COMPANY, A Partnership in Commendam.
    No. 84-CC-1545.
    Supreme Court of Louisiana.
    Aug. 20, 1984.
    Reconsideration Denied Aug. 20, 1984.
   In re Westend Development Company, applying for writ of certiorari, stay to the Court of Appeal, Fifth Circuit, No. 84-C-439; Parish of Jefferson, 24th Judicial District Court, Div. “0”, No. 291-371.

Granted. Stay order is set aside. Judgment of the trial court is reinstated.


text:
    WERNER ENTERPRISES, INC. v. WESTEND DEVELOPMENT COMPANY, A Partnership in Commendam.
    No. 84-CC-1545.
    Supreme Court of Louisiana.
    Aug. 22, 1984.
    Writ Granted Aug. 20, 1984.
   In re Werner Enterprises, Inc., applying for reconsideration of writ granted with order of August 20, 1984, 454 So.2d 129, and stay order; Court of Appeal, Fifth Circuit, No. 84-C-439; 24th Judicial District Court, Parish of Jefferson, No. 291-371, Division 0.

Denied.


text:
    STATE of Louisiana v. William G. THOMPSON.
    No. 84-KH-1486.
    Supreme Court of Louisiana.
    Aug. 22, 1984.
   In re Thompson, William G., applying for writ of certiorari, prohibition and mandamus, Parish of Calcasieu, 14th Judicial District Court, Div. “G”, No. 2593-83.

Denied.


author: FRED W. JONES, Jr., Judge.

text:
    STATE of Louisiana, Appellee, v. Larry Wayne HUNTER, Appellant.
    No. 16165-KA.
    Court of Appeal of Louisiana, Second Circuit.
    June 6, 1984.
    Rehearing Denied July 6, 1984.
    Writ Denied Sept. 20, 1984.

      Culpepper, Teat, Caldwell & Avery by Bobby L. Culpepper, Jonesboro, for appellant.
    William J. Guste, Jr., Atty. Gen., T.J. Adkins, Dist. Atty. by Dan J. Grady III, Asst. Dist. Atty., for appellee.
    Before MARVIN, FRED W. JONES and SEXTON, JJ.
   FRED W. JONES, Jr., Judge.

The defendant, Larry Wayne Hunter, was convicted after a trial by jury of attempted aggravated kidnapping (R.S. 14:44, 14:27) and attempted armed robbery (R.S. 14:64, 14:27). On the first offense he was sentenced to imprisonment at hard labor for 35 years and on the second offense was also sentenced to imprisonment at hard labor for 35 years, but without benefit of parole. The two sentences were ordered to run concurrently.

Defendant has appealed his convictions and sentences, relying upon three assignments of error.

Factual Context

On the afternoon of June 19, 1983, Jerry Rogers, his wife and 15 year old daughter were shopping at a grocery store located just north of Interstate Highway 20 in Ru-sten. As they were checking out, the daughter, Tina, was handed the car keys and sent out to the parking lot to unlock the automobile and make room for the groceries. Miss Rogers unlocked the door on the passenger side of the two-door vehicle, pitched the car keys onto the middle of the front seat and started to sit on the rear seat. At that time a male, whom she did not know, armed with a butcher knife, grabbed Miss Rogers by the wrist and demanded the car keys.

Miss Rogers pointed to the keys lying on the front seat and her assailant picked them up. He then pulled the young lady from the automobile, forced her around to the driver’s side of the car, unlocked that door, and told his victim to get into the vehicle. At this time Mr. and Mrs. Rogers came out of the store and observed what was transpiring with reference to their daughter. Mrs. Rogers began screaming. This apparently startled her daughter’s assailant since he loosened his grip on her. Tina then eluded the grasp of her assailant by pulling away and running back into the grocery store.

As Mr. Rogers approached the assailant, the latter handed him the car keys and said he was merely helping Miss Rogers open the car door. However, he then started running away from Mr. Rogers. Upon seeing that he was not being pursued, the assailant slowed to a walk and finally stopped in the doorway of a cafeteria located in the same shopping center as the grocery store where the Rogerses had been shopping.

When law enforcement officers arrived, the assailant went into the cafeteria. He was subsequently apprehended in the men’s restroom of the cafeteria, where the police also found beside him on the floor a butcher knife measuring 8 to 10 inches in length. The male was identified as Larry Wayne Hunter.

Assignment of Error No. 1

In this assignment the defendant contends that the evidence adduced at trial was insufficient to prove every element of the offense of attempted aggravated kidnapping.

In order to satisfy due process standards, the record evidence, viewed in the light most favorable to the prosecution, must be sufficient for a rational factfinder to conclude that the essential elements of the crime were proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 2791, 61 L.Ed.2d 560 (1979).

La.R.S. 14:44 defines aggravated kidnapping as:

Aggravated kidnapping is the doing of any of the following acts with the intent thereby to force the victim, or some other person, to give up anything of apparent present or prospective value, or to grant any advantage or immunity, in order to secure a release of the person under the offender’s actual or apparent control:
(1) The forcible seizing and carrying of any person from one place to another; or
(2) The enticing or persuading of any person to go from one place to another; or
(3) The imprisoning or forcible secreting of any person.
Whoever commits the crime of aggravated kidnapping shall be punished by life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence.

An attempt requires specific intent to commit the crime and an overt act tending directly toward the accomplishment of that crime. R.S. 14:27. Although the State need not prove every element of the crime, the State does have the burden of proving specific intent to commit the charged crime.

The crime of aggravated kidnapping requires proof that the defendant specifically intended to extort something of value either from the victim or some other person in order to secure release. See State v. Moore, 432 So.2d 209 (La.1983); State v. English, 367 So.2d 815 (La.1979) (appendix); State v. Johnson, 443 So.2d 744 (La.App. 4th Cir.1983); State v. Rodrigue, 441 So.2d 1274 (La.App. 1st Cir.1983). Indeed, the intent to extort is the essential difference between aggravated kidnapping and simple kidnapping. State v. Polk, 367 So.2d 151 (La.1979) (fn. 1); State v. Dupre, 369 So.2d 1303 (La.1979).

Specific intent to commit a crime is an element of an attempted offense. La. R.S. 14:27. Hence, a conviction of an attempted offense must rest upon sufficient proof that the offender actively desired to cause the proscribed criminal consequences to follow his act or failure to act and that the offender committed or omitted an act for the purpose and tending directly toward the accomplishing of his object. R.S. 14:10, 14:27. See State v. Parish, 405 So.2d 1080 (La.1981), on remand 429 So.2d 442.

Specific intent is a state of mind and need not be proved as a fact; it may be inferred from the circumstances of the transaction and the action and actions of the defendant. State v. Graham, 420 So.2d 1126 (La.1982); State v. Fuller, 414 So.2d 306 (La.1982). The determination of whether the requisite intent is present in a criminal case is for the trier of fact. See State v. Huizar, 414 So.2d 741 (La.1982) and State v. Butler, 322 So.2d 189 (La.1975). In reviewing the correctness of such determination, the court should review the evidence in a light most favorable to the prosecution and must determine if the evidence is sufficient to convince a reasonable trier of fact of the guilt of the defendant beyond a reasonable doubt as to every element of the offense. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Huizar, supra.

It follows therefore that the State, to prove attempted aggravated kidnapping, must present evidence that the defendant intended to forcibly seize the victim and to extort something of value from the victim or a third party for the release of the victim. In viewing the evidence in this case in a light most favorable to the State, it cannot be said that the State proved anything more than that the defendant intended to forcibly seize and carry off the victim. There is no evidence from which a rational trier of fact could infer that the defendant had specific intent to extort something of value from the victim or third party in order to secure a release.

However, the record in this case does support a conviction of a lesser included and responsive offense. See C.Cr.P. Art. 814. The crime of attempted simple kidnapping requires the State to prove that the defendant had the specific intent to forcibly seize and carry off the victim. Based on the record in this case, the State proved that the defendant intended to seize and carry off the victim and committed an act tending directly toward the accomplishment of that goal.

The verdict in this, therefore, is amended to reduce the conviction for attempted aggravated kidnapping to a conviction of attempted simple kidnapping and the case is remanded to the trial court for re-sentencing for attempted simple kidnapping in accordance with this opinion. C.Cr.P. Art. 821(E); see also State v. Byrd, 385 So.2d 248 (La.1980).

Assignment of Error No. 2

Defendant argues in this assignment that the evidence presented at trial did not establish every element of the crime of attempted armed robbery.

Armed robbery is defined in La.R.S. 14:64 as:

A. Armed robbery is the taking of anything of value belonging to another from the person of another or that is in the immediate control of another, by use of force or intimidation, while armed with a dangerous weapon.
B. Whoever commits the crime of armed robbery shall be imprisoned at hard labor for not less than five years and for not more than ninety-nine years, without benefit of parole, probation or suspension of sentence.

We have previously discussed the elements of “attempt” in connection with the first assignment of error.

On the conviction of attempted armed robbery, the defendant questions whether the car keys were “within the control” of Miss Rogers and whether they were ever “taken” as required by the definition of the offense. With reference to the former contention, although the victim testified that she could not easily reach the keys, property “under one’s control” has been defined as that within one’s presence — as were these keys. State v. Refuge, 300 So.2d 489 (La.1974).

Defendant’s possession of the car keys, even for a brief time, constituted a “taking” as contemplated by the statute.

In summary, the attempted armed robbery conviction is supported by evidence of defendant’s use of a dangerous weapon [the butcher knife] and the taking of the car keys.

The defendant mistakenly asserts that the State must prove each and every element of the crime attempted. As can be gleaned from the legal definition of attempt, the prosecution’s burden is to prove specific intent [which can be inferred from circumstances] and the commission of an overt act tending toward accomplishing the offense. Viewing the evidence here in a light most favorable to the prosecution, we find that it was sufficient to sustain this conviction.

For the reasons explained, this assignment of error is without merit.

Assignment of Error No. 3

It is defendant’s argument in this assignment that the sentences imposed by the trial judge are excessive. Having set aside the sentence meted out for attempted aggravated kidnapping, we address only the sentence of 35 years at hard labor, without benefit of parole, for the attempted armed robbery conviction.

The maximum imposable sentence for attempted armed robbery is 49¾⅛ years without benefit of parole, probation or suspension of sentence.

The sentencing guidelines of La.C.Gr.P. Article 894.1 provide the criteria to consider in determining whether a sentence is excessive. State v. Sepulvado, 367 So.2d 762 (La.1979); State v. Tully, 430 So.2d 124 (La.App. 2d Cir.1983). While the trial judge need not articulate every aggravating and mitigating circumstance outlined in Article 894.1, the record must reflect that he adequately considered these guidelines in particularizing the sentence to the defendant. State v. Hammonds, 434 So.2d 452 (La.App. 2d Cir.1983).

In this case the trial court adequately complied with Article 894.1. He noted that he was precluded from offering this defendant a probated sentence under the provisions of the armed robbery statute. It was further pointed out that, although this defendant did not have a record of a significant amount of criminal behavior, recent arrests for indecent behavior with juveniles and aggravated battery were disturbing factors. The trial judge also observed that the harm to this victim from a psychological standpoint was incalculable. Further, it was apparent that the defendant needed correctional treatment.

Considering the matters addressed above and the seriousness of this crime, we do not find that the sentence of 35 years imprisonment is a needless or purposeless imposition of pain and suffering. Therefore this assignment lacks merit.

Decree

For the reasons set forth, the conviction and sentence for attempted armed robbery are affirmed. The conviction and sentence for attempted aggravated kidnapping are set aside, the defendant is adjudged guilty of attempted simple kidnapping, and the case is remanded to the district court for sentencing for this crime.


author: WATKINS, Judge. SAVOIE, J.,

text:
    Sheila BOUDREAUX v. GOVERNMENT EMPLOYEES INSURANCE COMPANY.
    No. 83 CA 0516.
    Court of Appeal of Louisiana, First Circuit.
    June 26, 1984.
    Rehearing Denied Aug. 27, 1984.

      Denis J. Gaubert, III, of Michael X. St. Martin, Houma, for plaintiff and appellant — Shelia Boudreaux.
    W. Paul Andersson, and Marta-Ann Schnabel, New Orleans, for defendant and appellee — Government Employees Insurance Co.
    Before COVINGTON, LOTTINGER, EDWARDS, PONDER, COLE, WATKINS, SHORTESS, CARTER, SAVOIE, LANIER, CRAIN and ALFORD, JJ.
   WATKINS, Judge.

This is an action brought by Ms. Bou-dreaux against her uninsured and underin-sured motorist carrier, Government Employees Insurance Company, for personal injury resulting from a two-car collision on Bond Street in Houma, Louisiana. Ms. Boudreaux was a guest passenger in a 1973 Datsun 280 Z, owned by Mrs. Glen Boudreaux, and driven by Lemuel W. Glid-well, which collided with a 1974 Nova, owned by Carol Brunette, Sr., and driven by his son, Carol Brunette, Jr., on May 24, 1980.

Government Employees, the insurer of Mrs. Boudreaux’ 280 Z, filed an exception of no right of action to Ms. Boudreaux’s suit, contending that Ms. Boudreaux had executed a Release of All Claims on February 25, 1981, in consideration of the sum of $5,000.00, the policy limits of an automobile liability insurance policy held by Carol Brunette, Sr. with Allstate Insurance Company. Government Employees further contends it is a solidary obligor with Allstate under the holding in Hoefly v. Government Employees Insurance Co., 418 So.2d 575 (La.1982), and that said release effected a release of Government Employees under LSA-C.C. art. 2203, as Ms. Boudreaux did not reserve her rights to pursue her claim against Government Employees. A motion for summary judgment in the alternative was later filed by Government Employees.

The trial court sustained the exception of no right of action, and dismissed plaintiff’s suit. We reverse.

In her original brief before this court, Ms. Boudreaux argued strongly that consideration of a release was inappropriate on an exception of no right of action. This contention would appear to have been well founded. An exception of no right of action decides solely the issue of whether or not plaintiff is a member of the class of persons having a legal interest to sue in the cause of action asserted. A release constitutes a defense. It is not a proper object of consideration on the exception of no right of action. Bielkiewicz v. Rudisill, 201 So.2d 136 (La.App. 3d Cir.1967). However, in a reply brief, counsel for Ms. Bou-dreaux abandons this contention, stating that he is content that the case be decided as if the motion for summary judgment, which Government Employees had filed in the alternative, had been decided adversely to Ms. Boudreaux.

Counsel for Government Employees contends that as Ms. Boudreaux did not reserve her rights to proceed against Government Employees, her UM carrier, when she released Allstate, and as, under his interpretation of Hoefly, supra, Government Employees and Allstate are solidary obli-gors for all purposes, the release of Allstate without a reservation by Ms. Bou-dreaux of her rights to proceed against Government Employees effected a release of Government Employees under the provision of LSA-C.C. art. 2203.

However, this contention gives Hoefly an unduly broad significance. Hoefly involved a case in which suit was filed against an underinsured motorist and her insurer within the one year prescriptive period. After the prescriptive period had expired, suit was filed against the UM carrier. Hoefly held simply that under the prescriptive situation presented the underinsured motorist and the UM carrier were debtors in solido, and hence, suit against one interrupted the running of prescription against all. See LSA-C.C. art. 2097. The ease noted it dealt only with the prescriptive situation, and that, this being a Civilian jurisdiction, the finding of solidary obligation did not apply to all relationships in all situations affecting the tort victim, his UM carrier, and the tortfeasor.

Some three years before its decision in Hoefly, the Louisiana Supreme Court had decided Niemann v. Travelers Insurance Co., 368 So.2d 1003 (La.1979). In this case, the Supreme Court held that a subrogation clause and consent to settle clause (which required the UM carrier’s consent before a release of the tortfeasor and his insurer was effected) violated the policy behind, and specific provisions of, LSA-R.S. 22:1406D(4), which reads as follows:

“D. The following provisions shall govern the issuance of uninsured motorist coverage in this state.
* * * * * %
(4) In the event of payment to any person under the coverage required by this Section and subject to the terms and conditions of such coverage, the insurer making such payment shall, to the extent thereof, be entitled to the proceeds of any settlement or judgment resulting from the exercise of any rights of recovery of such person against any person or organization legally responsible for the bodily injury for which such payment is made, including the proceeds recoverable from the assets of the insolvent insurer.”

As the UM carrier is entitled to the proceeds of a judgment or settlement resulting from the exercise of any rights against the tortfeasor or anyone who may be legally responsible, the court reasoned, this right took the place of the right to subrogation, and hence the UM carrier was without right to subrogation, and was without interest to demand that the insured obtain its consent to settle before entering into a settlement with the tortfeasor and the insurer.

Thus, the right of the UM carrier is limited to a credit for the proceeds obtained from the tortfeasor and his insurer, and the UM carrier is not a solidary obligor with the automobile liability insurer in the sense that the UM carrier can obtain from the automobile liability insurer its virile share of the debt. That being the case, the release of the tortfeasor and his insurer does not affect the UM carrier to its detriment, and the release of the tortfeasor and his insurer does not in any fashion effect a release of the UM carrier. Thus, Ms. Bou-dreaux is free to pursue her claim against her UM carrier, Government Employees. To hold otherwise would be to vitiate both the clear meaning of LSA-R.S. 22:1406D(4) and the broad policy in favor of UM coverage' that the entire statute establishes. .

We are fully mindful of the decisions of the Fourth Circuit in Corona v. State Farm Insurance Co., 444 So.2d 763 (La.App. 4th Cir.1984), and the Fifth Circuit in Decedue v. Government Employees Insurance Co., 441 So.2d 72 (La.App. 5th Cir. 1983), which reached a result the opposite of the result we reach herein, and relied upon Hoefly, supra, as being controlling. However, neither of these cases discussed Niemann, supra, or the implication of LSA-R.S. 22:1406D(4). Decisions of other circuits are not binding upon this court, and Hoefly expressly disavows any intention by the Supreme Court that it be followed as if by rote in all eases.

We find it unnecessary to determine whether or not a rescission of the settlement discussed herein, which rescission was executed by both Ms. Boudreaux and a representative of Allstate, was of legal efficacy, although we see no reason why it would not be.

The judgment of the trial court is reversed, the exception of no right of action is overruled, the motion for summary judgment is denied, and the case is remanded for further proceedings. Costs of this appeal to be paid by Government Employees Insurance Company.

REVERSED AND REMANDED.

LANIER, J., concurs in the result.

SAVOIE, J.,

concurs in the result for the reasons assigned in Justice Marcus’ dissent in Hoefly v. Gov’t Employees Ins. Co., 418 So.2d 575 (1982).


author: PER CURIAM. SAVOIE, J.,

text:
    Donna Geist BUNDY v. Ernest P. TOUPS, et al.
    No. 83 CA 0563.
    Court of Appeal of Louisiana, First Circuit.
    June 26, 1984.
    Rehearing Denied Aug. 27, 1984.
    Herbert W. Barnes, Houma, for plaintiff and appellant — Donna Geist Bundy.

      Lloyd T. Bourgeois, Thibodaux, for defendant and appellee — Ernest Toups and Allstate Insurance.
    Harvey J. Godofsky, New Orleans, for third party defendant-appellee — Insurance Co. of North America.
   PER CURIAM.

This suit arises out of an automobile accident which occurred on June 27, 1980, in the Parish of Lafourche, State of Louisiana. The plaintiff, Donna Geist Bundy (Bundy), was struck by a 1977 Chevrolet which was being driven and which was owned by Ernest P. Toups (Toups).

Plaintiff filed suit against Toups, Allstate Insurance Company (Allstate) and the Insurance Company of North America (INA), alleging that at all pertinent times therein, Allstate was the liability insurer of Toups and INA had issued a policy of automobile insurance to Bundy which provided for uninsured/underinsured motorist coverage. INA third partied Toups and Allstate.

On May 2, 1982, Bundy signed and executed a release of all claims against the tortfeasor, Toups and his liability insurer, Allstate. This release neither expressly nor impliedly reserved any rights against INA.

On June 14, 1982, the trial court signed a motion to dismiss filed on behalf of plaintiff. The motion to dismiss failed to reserve any rights of the plaintiff against INA. There is no indication in the motion to dismiss that plaintiff intended to reserve any rights against INA, or against any other defendant.

INA filed a motion for summary judgment based upon plaintiff’s failure to reserve any rights. The summary judgment was granted in favor of INA on March 3, 1984.

The matter is now before this Court on an appeal filed by plaintiff, Donna Geist Bundy. We reverse and remand.

Our brethren in the Fifth Circuit in Decedue v. Government Employees Insurance Company, 441 So.2d 72 (La.App. 5th Cir. 1983) and in the Third Circuit in Roy v. United Automobile Association, 442 So.2d 1303 (La.App. 3rd Cir.1983), reached the conclusion that the decision of our Supreme Court in Hoefly v. Government Employees Insurance Company, 418 So.2d 575 (La.1982), is controlling and that since an uninsured motorist carrier and a tortfeasor are solidary obligors within the meaning of LSA-C.C. art. 2091, under LSA-C.C. art. 2203 the failure of the insured to reserve his rights against the UM carrier results in its discharge.

However, we adopt the following language of this Court in the opinion handed down this date in Boudreaux v. Government Employees Insurance Company, 454 S.2d 135 (La.App. 1st Cir. 1984):

Hoefly involved a case in which suit was filed against an underinsured motorist and her insurer within the one year prescriptive period. After the prescriptive period had expired, suit was filed against the UM carrier. Hoefly held simply that under the prescriptive situation presented the underinsured motorist and the UM carrier were debtors in solido, and hence, suit against one interrupted the running of prescription against all. See LSA-C.C. art. 2097. The case noted it dealt only with the prescriptive situation, and that, this being a Civilian jurisdiction, the finding of solidary obligation did not apply to all relationships in all situations affecting the tort victim, his UM carrier, and the. tortfeasor.
Some three years before its decision in Hoefly, the Louisiana Supreme Court had decided Niemann v. Travelers Insurance Co., 368 So.2d 1003 (La.1979). In this case, the Supreme Court held that a subrogation clause and consent to settle clause (which required the UM carrier’s consent before a release of the tort-feasor and his insurer was effected) violated the policy behind, and specific provisions of, LSA-R.S. 22:1406D(4), which reads as follows:
“D. The following provisions shall govern the issuance of uninsured motorist coverage in this state.
⅜: * * * * *
(4) In the event of payment to any person under the coverage required by this Section and subject to the terms and conditions of such coverage, the insurer making such payment shall, to the extent thereof, be entitled to the proceeds of any settlement or judgment resulting from the exercise of any rights of recovery of such person against any person or organization legally responsible for the bodily injury for which such payment is made, including the proceeds recoverable from the assets of the insolvent insurer.”
As the UM carrier is entitled to the proceeds of a judgment or settlement resulting from the exercise of any rights against the tortfeasor or anyone who may be legally responsible, the court reasoned, this right took the place of the right to subrogation, and hence the UM carrier was without right to subrogation, and was without interest to demand that the insured obtain its consent to settle before entering into a settlement with the tortfeasor and the insurer.
Thus, the right of the UM carrier is limited to a credit for the proceeds obtained from the tortfeasor and his insurer, and the UM carrier is not a solidary obligor with the automobile liability insurer in the sense that the UM carrier can obtain from the automobile liability insurer its virile share of the debt. That being the case, the release of the tort-feasor and his insurer does not affect the UM carrier to its detriment, and the release of the tortfeasor and his insurer does not in any fashion effect a release of the UM carrier. Thus, Ms. Boudreaux is free to pursue her claim against her UM carrier, Government Employees. To hold otherwise would be to vitiate both the clear meaning of LSA-R.S. 22:1406D(4) and the broad policy in favor of UM coverage that the entire statute establishes.

The summary judgment of the trial court is reversed and the matter is remanded for further proceedings. Costs of this appeal are assessed against IN A. The assessment of other costs are pretermitted.

REVERSED AND REMANDED.

LANIER, J., concurs in the result.

SAVOIE, J.,

concurs in the result for the reasons assigned in Justice Marcus’ dissent in Hoefly v. Gov’t Employees Ins. Co., 418 So.2d 575 (1982).

      . The Court dismissed INA’s claim by summary judgment.

      . For purposes of this en banc hearing, this suit was consolidated with the case of "Shelia Bou-dreaux versus Government Employees Insurance Company," Number 83 CA 0516. Separate opinions will be issued in each suit.

      .Writs have been granted by the Supreme Court in Roy, 445 So.2d 430 (Feb. 10, 1984), and in Decedue, 446 So.2d 1216 (Mar. 16, 1984). See also Corona v. State Farm Insurance Company, 444 So.2d 763 (La.App. 4th Cir.1984), writ granted in "Carona v. State Farm Insurance Company," 446 So.2d 1217 (La.1984).


author: CARTER, Judge:

text:
    NEWMAN, GRACE & HOLLOWAY ARCHITECTS, INCORPORATED, a Professional Architectural Corporation v. Robert E. TILLERY.
    No. 83 CA 0805.
    Court of Appeal of Louisiana, First Circuit.
    June 26, 1984.
    Rehearing Denied Aug. 24, 1984.
    Writ Denied Nov. 9, 1984.

      Davis A. Gueymard, Baton Rouge, for plaintiff-appellee Newman, Grace & Holloway, Architects, Inc.
    Robert E. Tillery, in pro. per.
    Before PONDER, WATKINS and CARTER, JJ.
   CARTER, Judge:

This is a suit for the balance due on a contract for architectural services.

Newman, Grace and Holloway Architects, Incorporated, A Professional Architectural Corporation, filed suit against Robert E. Tillery on November 18, 1980. In its petition, plaintiff alleged that it had contracted with Tillery to design a rental office building for a one-acre tract of land on Sherwood Forest Boulevard in Baton Rouge and to draw a master plan for the future use of an additional one acre tract. Plaintiff also alleged that the contract stipulated a fee of 7% of the construction costs with 80% of the fee being due and payable through the bidding phase. The low bid on the project was $879,500.00, and therefore, the stipulated fee for architectural services (being 7% of 80% of the bid) amounted to $49,252.00. Plaintiff admitted that Tillery had paid the sum of $34,657.79, thus leaving a balance of $14,594.21 owing.

Defendant Tillery claimed that the contract as described above was abandoned by the parties, and thereafter the parties entered into an oral contract for the design of an office and retail shopping center known as Newcastle Square, consisting of five separate buildings, containing about 25,000 square feet of enclosed space situated on a two acre parcel. Defendant further claimed that this subsequent unwritten agreement required the architects to design a project which could be built and financed with an equity investment of not more than $200,000.00 by defendant. Defendant contends that plaintiff’s fee was contingent upon this. In addition, defendant filed a reconventional demand contending he is entitled to damages for breach of this unwritten contract.

After a trial on the merits, the court ruled in favor of the plaintiff and awarded judgment in the amount of $14,594.21 with legal interest from the date of judicial demand. Defendant’s reconventional demand was dismissed.

Defendant Tillery appeals, assigning the following errors:

(1) The district court refused to dismiss plaintiff’s, Newman, Grace and Holloway, Architects, Incorporated, A Professional Architectural Corporation, suit against defendant when the corporation failed to prove a cause of action against defendant.
(2) The district court rendered and signed a judgment against defendant in favor of Newman & Grace, Architects, Inc., a corporation which is not a party to the suit.
(3) The district court held that parol evidence modified and amended the written contract between the parties, notwithstanding specific provisions of the contract prohibiting its amendment or modification by oral agreements.
(4) The district court’s findings of fact, reasons for judgment, and judgment are contrary to the law and the evidence.
(5) The district court never considered the evidence contained in Defendant’s Exhibit 14, which was not delivered into the Court’s hands by the Clerk of Court until after the judgment was rendered.

ASSIGNMENTS OP ERROR NOS. 1, 2 AND 5

In these three assignments of error defendant contends that judgment was rendered in favor of Newman & Grace, Architects, Inc., whereas the suit was filed in the name of Newman, Grace & Holloway Architects, Inc., A Professional Architectural Corporation, and that there was insufficient evidence adduced at trial to establish that the two corporations were one and the same.

Corporations must sue or be sued in their authorized name, although a slight alteration in the name is not important. LSA-C.C. art. 432. Courts have applied the above exception in instances where the identity of the corporation was shown and the defendant was not misled thereby. Hy-Grade Investment Corp. v. Robillard, 196 So.2d 558 (La.App. 4th Cir.1967).

In oral reasons for judgment, the trial judge stated that the architectural ■ firm composed of Grace and Newman took in a third partner, named Holloway. Holloway stayed with the firm for a short time and then departed. At this time, the architectural firm once again became Newman & Grace. The trial judge stated:

“We are not in fact dealing with two separate corporate entities here, but we are dealing with one plaintiff who is the same person, the same corporate plaintiff that signed the contract, the one that is before the Court ... the Court will find that there is no basis for questioning the capacity of the plaintiff corporation in this case.”

The trial judge made the above ruling based on the testimony of Mr. Grace in his deposition, which was as follows:

“I returned to Baton Rouge and set up my own business about fourteen and one half years ago and I have been in the practice of architecture under the firm of Newman & Grace — Newman & Grace & Holloway, Architects, Incorporated — and we currently practice under the name of Newman & Grace, Architects, Incorporated.”

Based on the evidence introduced at trial, the trial judge found that Newman & Grace, Architects, Inc., and Newman, Grace & Holloway Architects, Inc. are in fact, the same firm. We find no error in the ruling of the trial judge and consequently no merit in these assignments of error.

ASSIGNMENTS OF ERROR NOS. 3 AND 4

In these assignments of error, defendant contends that plaintiff’s services were rendered pursuant to a subsequent oral agreement between the parties which allegedly contained a contingent cost limitation. Defendant argues that since this cost limitation was not met, defendant owes plaintiff nothing. In addition, defendant contends that he is entitled to damages on his recon-ventional demand for breach of an oral agreement.

Defendant further argues that a contract reduced to writing may not subsequently be modified by oral agreement between the parties. We disagree.

Parol evidence is clearly admissible to prove a subsequent verbal agreement, modifying or even abrogating a written contract, if the contract is not one required by law to be in writing. Grossie v. Lafayette Construction Co., Inc., 306 So.2d 453 (La.App. 3rd Cir.1975), writ denied, 309 So.2d 354 (La.1975).

Thus, we find no error in the ruling of the trial judge allowing parol evidence of the alleged oral modification of the contract.

Plaintiff introduced a copy of the contract between the parties which stated that plaintiff was to:

“Design a rental office building for a one acre track (sic) of land on Sherwood Forest Boulevard including all parking and a 1,500 square foot ± office space for the Owner.
Also to draw a Master Plan for future use on the one acre tract of land to the rear of this property. Include in the design the possibility of building the complex in several stages.”

Mr. Grace, an architect in the firm, testified that his firm was to design a rental office building for a one-acre tract of land, and that this building was to include a 1,500 square foot office for defendant. In addition, Grace testified that the firm was to draw a master plan for two adjoining one-acre tracts of land, one of which belonged to Tillery. The master plan was merely a preliminary work-up and was not to include design or construction plans.

Grace testified that the contractural obligation outlined above was fulfilled and that defendant was given design plans for the one-acre tract and a master plan for the two-acre tract.

Defendant Tillery testified that the contract filed in the record evidenced the original intent of the parties. However, he stated that it was later decided to abandon the idea of building a single building and instead to attempt a larger project such as a commercial office park. This larger project was to be known as Newcastle Square and would consist of 25,000 square feet in five free-standing buildings situated on two acres.

It is therefore defendant’s contention that the original project, as evidenced by the contract, was abandoned and that the project known as Newcastle Square was an entirely separate arrangement. Defendant further contends that the latter agreement was contingent upon his being able to go forward with the project for an equity investment of $200,000.00. It is therefore defendant’s position that because a larger investment was required of him, he owes plaintiff nothing.

In oral reasons for judgment, the trial court found that there was no abrogation of the written contract, but that there was some modification of the contract with the mutual consent of the parties. Apparently, the trial judge found and so stated, that the contract, between the parties simply “evolved” beyond what was originally intended. However, he did not believe defendant’s contention that the method of payment was changed and made contingent upon defendant’s ability to go forward with the project for an equity investment of $200,000.00.

The trial judge’s determination of factual findings should not be overturned without a clear showing of manifest error. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). Based on our review of the record, including the testimony of all the parties, we cannot say that the trial judge was manifestly erroneous.

For the above and foregoing reasons, the judgment of the trial court is affirmed. Costs of the appeal are to be assessed against appellant.

AFFIRMED.


author: ALFORD, Judge.

text:
    Lloyd Arthur TOBEY and Cynthia L. Tobey v. STATE of Louisiana, et al.
    No. 83 CA 0816.
    Court of Appeal of Louisiana, First Circuit.
    June 26, 1984.
    Rehearing Denied Aug. 24, 1984.

      Alfred J. Ferry of the Law Offices of Guy W. Olano, Jr., Kenner, for plaintiffs-appellants, Lloyd Arthur Tobey and Cynthia L. Tobey.
    Dermot S. McGlinchey, Henri Wolbrette, III and Kathleen A. Manning, New Orleans, for defendants-appellees Pascal Painter & Harry Walz d/b/a Cherokee Beach Camp Ground.
    Robert A. Barnett, Louisiana Dept, of Justice, New Orleans, for defendant State of La.
    Tom H. Matheny of Pittman, Matheny, Lewis & Moody, Hammond, for defendant-Lallie Kemp Charity Hospital.
    Chester C. Nolan, Dept, of Health & Human Resources, Baton Rouge, for inter-venor Louisiana Dept, of Health & Human Resources.
    Charles M. Cassidy, Franklinton, for defendant C.H. McClendon.
    Before LOTTINGER, EDWARDS and ALFORD, JJ.
   ALFORD, Judge.

This is an appeal from a judgment maintaining a peremptory exception of no cause of action in favor of defendants-appellees, Pascal Painter and Harry Walz, d/b/a Cherokee Beach Campground. Plaintiffs-appellants, Lloyd and Cynthia Tobey, filed suit for damages against a host of defendants for damages resulting from a tubing accident on the Tangipahoa River which left Mr. Tobey paralyzed. Appellants’ demands for damages were grounded upon the alleged negligence and strict liability of defendants.

In Leenerts Farms, Inc. v. Rogers, 421 So.2d 216, 217 (La.1982), the Louisiana Supreme Court stated,

“... that the function of the peremptory exception of no cause of action is to test the legal sufficiency of the petition and all well-pleaded allegations of the petition are accepted as true. An exception of no cause of action is sustained only where the law affords no remedy to plaintiff under the allegations of his petition. If a petition states a cause of action as to any ground or portion of the demand, the exception of no cause of action must be overruled. Hero Lands Company v. Texaco, Inc., 310 So.2d 93 (La.1975); Jackson v. East Baton Rouge Parish School Board, 393 So.2d 243 (La.App. 1st Cir.1980.”

STRICT LIABILITY

Plaintiffs’ petition alleges that Mr. Tobey was injured when he struck a submerged object in the Tangipahoa River while tubing. Further, plaintiffs allege that the submerged obstruction was a defect in an object (the river) which was in the custody of the owners of the river at the site of the accident. Even assuming these allegations to be true, we fail to see how these defendants can be held liable under the theory of strict liability. LSA C.C. art. 2317 and Loescher v. Parr, 324 So.2d 441 (La.1975) require that the thing causing harm be defective, that the defective thing actually cause the injury and that the thing be in the custody of defendant. The Tangipahoa River, being a state owned river, could not have been in the custody of these defendants. Therefore, plaintiffs have failed to state a cause of action under the theory of strict liability.

NEGLIGENCE

Plaintiffs have made a number of allegations in their effort to state a cause of action under the theory of negligence, and thus, we choose to consider these allegations in groups. The first group of allegations are as follows:

Failure to supervise visitors and guest and other persons entering onto property in a manner suited to protect said persons.
Failure to remove hidden and dangerous objects found on property owner or controlled by defendants.
Failure to provide a safe area for visitors, guests and all others who entered onto property owner or controlled by defendants.
Alternatively, the land owner in the preceding paragraph is liable to plaintiffs herein because of his negligence in maintaining access to, use of, and condition of the land owned.

Given that plaintiffs have alleged, which we accept as true, that the accident happened while Mr. Tobey was actually in the river, we fail to see how these allegations state a cause of action against these defendants. This accident did not result from any condition of the land owned and/or controlled by these defendants.

Plaintiffs’ second group of allegations under the theory of negligence contain the following:

Defendants, Pascal Painter and Harry Walz, d/b/a Cherokee Beach Camp Ground, knew individually or through their agents and employees that tubing or floating was the intended purpose of plaintiffs use of defendants’ facilities and nevertheless failed to provide plaintiff with sufficient warnings of the dangers of tubing or floating.
Failure to warn visitors, guests and other person entering onto property controlled by defendants of dangers and hidden defects of said property.

We are of the opinion that these defendants were under no legal duty to warn Mr. Tobey, a person of full majority, of the obvious and inherent dangers of an activity such as tubing, cf. Caillouette v. Cherokee Beach & Campgrounds, Inc., 386 So.2d 666 (La.App. 1st Cir.1980), writ denied 387 So.2d 597 (La.1980).

Plaintiffs’ remaining allegations are as follows:

Failure to properly come to the rescue of or assist or care for plaintiff, Lloyd Arthur Tobey, after he had been injured.
Failure to provide adequate medical facilities or medical transportation to plaintiff, Lloyd Arthur Tobey, after he had been injured.
Failure to render proper medical services to plaintiff Lloyd Arthur Tobey.
Negligently rendering medical services to plaintiff, Lloyd Arthur Tobey, which in fact increased his pain and injury.

In Dodge v. Pierre, 348 So.2d 167, 169 (La.App. 1st Cir.1977), writ denied 351 So.2d 165 (La.1977), this Court noted, “The doctrine that a rescuer occupies a special status in the law is well recognized in Louisiana. Gambino v. Lubel, 190 So.2d 152 (La.App. 4 Cir.1966). However, it is not every person who is involved in a situation at the scene of an accident who enjoys rescuer status.” We are of the opinion that plaintiffs have merely stated conclusions, rather than well pleaded facts, tending to show an actionable breach of duty on the part of these defendants which caused plaintiff additional injuries. However, we are of the further opinion that plaintiff should be afforded an opportunity to amend his petition to make the required showing, if he is so able.

Therefore, for the foregoing reasons, the judgment of the trial court is reversed, and this case is remanded to the trial court with instructions to permit an amendment of plaintiffs’ petition in accordance with this opinion. If no such amendment is filed within twenty days after this decision becomes final, the trial court shall dismiss this suit. Costs of this appeal are to be taxed to defendants.

REVERSED AND REMANDED.


text:
    Brenda Ann KEELEN v. STATE of Louisiana, et al.
    No. 83 CA 0832.
    Court of Appeal of Louisiana, First Circuit.
    June 26, 1984.
    Rehearing Denied Aug. 24, 1984.
    Writ Granted Nov. 9, 1984.
    Allain F. Hardin, New Orleans, for plaintiff, appellant.
    A. Kell Mclnnis, III, Baton Rouge, for defendant, appellee.
    Before LOTTINGER, EDWARDS and ALFORD, JJ.
   ALFORD, Judge.

This is an appeal from a judgment granting a motion for summary judgment in favor of defendant-appellee, State of Louisiana, Department of Culture, Recreation and Tourism (State). Plaintiff-appellant, Brenda Ann Keelen filed suit for the wrongful death of her eight year old son who drowned in a swimming pool located in Fountainbleu State Park in St. Tammany Parish. Prior to answering plaintiffs petition, defendant State filed a motion for summary judgment alleging immunity from suit by virtue of LSA R.S. 9:2791 and 9:2795. The trial judge denied the motion noting that a factual issue as to whether Fountainbleu State Park could be considered a commercial operation under the above cited revised statutes. Defendant next answered the suit admitting the accident but denying liability. The State then reurged its motion for summary judgment which was maintained by the trial judge.

At the outset we note that LSA C.C.P. art. 966 provides in pertinent part, “The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” Additionally, once the required showing is made, “... an adverse party may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided above, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be rendered against him.” LSA C.C.P. art. 967. We are of the opinion that defendant State has shown through its offerings that there is no genuine issue as to material fact and that it is entitled to judgment as a matter of law.

LSA R.S. 9:2791, which provides a limitation of liability for landowners of property not used primarily for recreational purposes provides,

A.An owner, lessee, or occupant of premises owes no duty of care to keep such premises safe for entry or use by others for hunting, fishing, camping, hiking, sightseeing or boating or to give warning of any hazardous conditions, use of, structure or activities on such premises to persons entering for such purposes. If such an owner, lessee or occupant give permission to another to enter the premises for such recreational purposes he does not thereby extend any assurance that the premises are safe for such purposes or constitute the person to whom permission is granted one to whom a duty of care is owed, or assume responsibility for or incur liability for any injury to persons or property caused by any act of person to whom permission is granted.
B. This Section does not exclude any liability which would otherwise exist for deliberate and willful or malicious injury to persons or property, nor does it create any liability where such liability does not now exist. Furthermore the provisions of this Section shall not apply when the premises are used principally for a commercial, recreational enterprise for profit; existing law governing such use is not changed by this Section.
C. The word “premises” as used in this Section includes lands, roads, waters, water courses, private ways and buildings, structures, machinery or equipment thereon.

LSA R.S. 9:2795, which provides a limitation of liability for landowners of property used primarily for recreational purposes provides,

A. As used in this Section:
(1) “Land” means land, roads, water, watercourses, private ways and buildings, structures, and machinery or equipment when attached to the realty.
(2) “Owner” means the possessor of a fee interest, a tenant, lessee, occupant or person in control of the premises.
(3) “Recreational purposes” includes, but is not limited to, any of the following, or any combination thereof: hunting, fishing, trapping, swimming, boating, camping, picnicking, hiking, horseback riding, bicycle riding, motorized vehicle operation for recreation purposes, nature study, water skiing, ice skating, sledding, snow mobiling, snow skiing, summer and winter sports, and viewing or enjoying historical, archaeological, scenic, or scientific sites.
(4) “Charge” means the admission price or fee asked in return for permission to use lands.
(5) “Person means individuals regardless of age.
B. Except for willful or malicious failure to warn against a dangerous condition, use, structure, or activity, an owner of land, except an owner of commercial recreational developments or facilities, who permits with or without charge any person to use his land for recreational purposes as herein defined does not thereby:
(1) Extend any assurance that the premises are safe for any purposes.
(2) Constitute such person the legal status of an invitee or licensee to whom a duty of care is owed.
(3) Incur liability for any injury to person or property incurred by such person.
C. Unless otherwise agreed in writing, the provisions of Subsection B shall be deemed applicable to the duties and liability of an owner of land leased for recreational purposes to the federal government or any state or political subdivision thereof or private persons.
D. Nothing in this Section shall be construed to relieve any person using the land of another for recreational purposes from any obligation which he may have in the absence of this Act to exercise care in his use of such land and in his activities thereon, or from the legal consequences of failure to employ such care.

The affidavits offered in support of the motion for summary judgment clearly reveal that the State of Louisiana is the owner of Fountainbleu State Park. Therefore, in order for the State to be excepted from the immunity provided by the statute, it must be shown that the State was guilty of a willful or malicious failure to warn against a dangerous condition, use, structure or activity; or was the owner of a commercial recreational development or facility. Plaintiff's petition was grounded upon negligence and no allegations of willful or malicious failure to warn have been made.

In Pratt v. State, 408 So.2d 336 (La.App. 3rd Cir.1981), writ denied 412 So.2d 1098 (La.1982), it was determined that to render a development or facility commercial, as that term is used in the statute, the development or facility must be run for a profit, regardless of whether an admission fee is charged. The affidavit of Nancy Reed, Parks Project Coordinator for the Office of State Parks, clearly shows that the State anticipates no profit in the running of Fountainbleu State Park. Between the years of 1978 and 1981 the State has taken in less than $70,000.00 per year in admission fees while expending in excess of $240,000.00 per year in running the facility.

Plaintiff-appellant maintains that the immunity provided by LSA R.S. 9:2795 refers only to the natural physical condition of the land and not to activities conducted by the owner on the land or to improvements placed on the land by the owner. This argument simply has no merit. By providing that only the willful or malicious failure to warn against a dangerous activity will subject an owner to liability, it is apparent to this court that activities conducted by the owner are contemplated by the statute. Additionally, the definition of land contained in the statute specifically provides for structures attached to the realty.

Plaintiff cites Smith v. Crown-Zellerbach, Inc. 638 F.2d 883 (5th Cir.1981), in support of her argument that LSA R.S. 9:2795 does not grant immunity for the maintenance of attractive nuisances. In Smith, a ten-year-old child was on his way home from fishing at a pond on Crown-Zellerbach property when he stopped to play on some grey hills located on the property. The hills were composed of hot ashes and chemical debris and he was severely burned. The court noted at page 885,

Thus the legislature intended to absolve property owners from the kind of accidents normally to be expected when they let others use their property for recreational purposes and not to remove their liability when they maintain attractive nuisances unrelated to the recreational purpose or when they otherwise increase the danger naturally found on the property.

We are unable to say, given the fact that Fountainbleu State Park is a developed recreational facility, that the swimming pool in which this child drowned is an attractive nuisance unrelated to the recreational purpose of the park. Additionally, while it can be argued that the State has otherwise increased the danger naturally found on the property by constructing the pool, the fact that the pool area was adequately fenced and lifeguards were on duty mitigates this condition. We are of the opinion that the situation presented in this case is sufficiently distinguishable from one in which a child of tender years is lured into an attractive nuisance, the danger of which he is incapable of understanding.

Finally, plaintiff alleges that in the event that this court finds that LSA R.S. 9:2795 grants immunity to the State in this case, she should be allowed to amend her petition to name the individual lifeguards on duty at the time as defendants. First, plaintiff maintains that she has a right to name the additional defendants because prescription has been interrupted. We disagree. Interruption of prescription could have only taken place if the lifeguards were solidarily obligated with the State. LSA C.C. art. 2090. Given our finding that the State is not liable to plaintiff, we fail to see how the individual lifeguards could be solidarily liable with the State.

Second, plaintiff maintains that if the lifeguards were found negligent, the State would be vicariously liable for their negligence and would lose its immunity under the statute. There is simply no legal basis for this argument. Assuming ar-guendo that the lifeguards were found negligent and the State found responsible for their actions, there is nothing in the statute which would preclude the immunity granted the State. There are no allegations that the lifeguards on duty willfully or maliciously failed to warn of a dangerous condition, use or activity.

Therefore, for the foregoing reasons, the judgment of the trial court maintaining the motion for summary judgment in favor of defendant State of Louisiana, Department of Culture, Recreation and Tourism and dismissing plaintiff Brenda Ann Keelen’s demands is hereby affirmed. Costs of this appeal are to be borne by plaintiff-appellant.

AFFIRMED.


author: LOTTINGER, Judge.

text:
    Maxine C. JEFFERSON, Simuel Hibler (AKA Callihan), Mary Della Callihan, Ida Beatrice Callihan, Loretta Callihan, Willie Callihan & Darrell Callihan v. Sam SARAGUSA and L. “Barbee” Ponder, Jr.
    No. 83 CA 0834.
    Court of Appeal of Louisiana, First Circuit.
    June 26, 1984.
    Rehearing Denied Aug. 24, 1984.

      Charles B.W. Palmer, Amite, for plaintiff-appellant.
    Fannie Burch, L.B. Ponder, Jr., Amite, for defendant-appellee Sam Saragusa.
    L. Barbee Ponder, Jr., in pro. per.
    Before LOTTINGER, EDWARDS and ALFORD, JJ.
   LOTTINGER, Judge.

This is a suit to have a judgment of possession set aside. The plaintiffs, collateral relations of the deceased, also seek to be declared the sole heirs and to have a sale of former property of the succession set aside. The defendants, the alleged natural father of the deceased and the buyer of the former succession property, filed an exception of no right and/or no cause of action. From a trial court judgment granting defendants’ exception, plaintiffs appeal.

FACTS

The facts alleged in plaintiffs’ petition, which we assume to be true for the purpose of deciding the correctness of the granting of the exception, are as follows. Bella Callihan had six acknowledged illegitimate children. Four of these children of Bella are plaintiffs herein, along with the descendants of the already-deceased fifth child. The sixth child of Bella was Alice Callihan. Alice had one acknowledged illegitimate daughter, Ethel Crusta. Ethel Crusta died on September 19, 1967; it is her succession which is at controversy here.

Ethel Crusta died childless and after the death of her mother Alice. The only known surviving relatives of Ethel were the plaintiffs, her aunts, uncles and cousins. The petition alleges that the defendant, Sam Saragusa, improperly acknowledged Ethel Crusta as his daughter.

ISSUES

The sole issue is whether the plaintiffs, aunts, uncles and cousins of the decedent, have a right to inherit from the decedent and, therefore, also a cause of action to annul the judgment of possession.

The law to be applied is the succession law as it stood prior to the effective date of the Louisiana Constitution of 1974 since the decedent died in 1967. See Succession of Clivens, 426 So.2d 585, on rehearing, (La.1983).

The question as to whether the plaintiffs here, collateral relations of the illegitimate decedent, can inherit from her has been answered by earlier cases. In Montegut v. Bacas, 42 La.Ann. 158, 7 So. 449 (1890), the Supreme Court ruled that under La.Civ.Code art. 917 (now repealed), “natural” collaterals, i.e. collateral relations of an illegitimate, may not inherit from the illegitimate relation. La.Civ.Code art. 923 gave natural brothers and sisters and their descendants the right to inherit from an illegitimate, but the “collateral relations” spoken of in Article 917 refers only to legal or lawful collaterals. Montegut v. Bacas, supra. Since plaintiffs here are only natural collaterals they have no cause of action under Louisiana law as it stood in 1967.

For the above and foregoing reasons, the trial court judgment appealed from is affirmed; appellants are to pay all costs.

AFFIRMED.


author: WATKINS, Judge.

text:
    Cynthia Patin MATTHEWS v. ALLIED CHEMICAL CORPORATION.
    No. 83 CA 0867.
    Court of Appeal of Louisiana, First Circuit.
    June 26, 1984.
    Rehearing Denied Aug. 24, 1984.
    A. Edward Hardin, Baton Rouge, for plaintiff-appellant Cynthia Patín Matthews.
    William A. Norfolk, Baton Rouge, for defendant-appellee Allied Chemical Corp.
    Before PONDER, WATKINS and CARTER, JJ.
   WATKINS, Judge.

This is a suit for workers’ compensation benefits brought by Cynthia Patín Matthews against Allied Chemical Corporation for alleged total and permanent disability in connection with a lung condition. The trial court rendered judgment for defendant, Allied Chemical. We affirm.

Mrs. Matthews worked for Allied Chemical as an operator technician in Allied Chemical’s plant at Geismar, Louisiana. The plant emits chemical fumes such as ammonia and acid. She became short of breath and anemic and consulted the company physician, Dr. A.R. Cronan, Jr., and her family physician, Dr. Victor Harvey. These initial visits occurred in January and February, 1981. Mrs. Matthews was referred to Dr. Louis F. Hargus, an internist, by Dr. Harvey, who hospitalized her, upon the belief that she suffered from sarcoido-sis. Dr. Hargus called in Dr. Thomas T. Thigpen, an internist with a sub-specialty in pulmonary diseases. A mediastinoscopy was performed, which entailed examination of a lymph node, which was inflamed by the sarcoidosis. Also, it was found that Mrs. Patín had a low count of both red cells and white cells in her blood, which condition was corrected by the ingestion of iron. All doctors except Dr. Thigpen advised Mrs. Matthews not to return to work in an environment with fumes, as she complained of shortness of breath when exposed to chemical fumes.

The cause of sarcoidosis, which affects the lymph nodes above the lungs, appears to be unknown to the medical profession, although certain facts are known about the disease, such as the fact that it is found in certain families related by blood more than others. The evidence is overwhelming that Mrs. Matthews suffers from sarcoidosis, which may be accompanied by asthma or bronchitis. However, the precise diagnosis, the sarcoidosis, is uncertain, and sarcoi-dosis is of unknown cause.

The plaintiff in a workers’ compensation case must establish causation by a preponderance of the evidence. The claimant is not required to establish the exact cause of injury in order to recover benefits; it is only necessary to show that somehow the work caused the accident. Lucas v. Insurance Co. of North America, 342 So.2d 591 (La.1977); Flood v. Hub Auto Parts, Inc., 425 So.2d 941 (La.App.4th Cir.1983), writ denied 429 So.2d 158 (1983). However, it is well established that the trial court’s findings on the question of causation must be given great weight and will not be upset unless they are clearly wrong. Gradney v. Vancouver Plywood Co., Inc., 299 So.2d 347 (La.1974); Flood, supra, Cf. Canter v. Koehring Company, 283 So.2d 716 (La.1973); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). Although we sympathize with Mrs. Matthews and gather from the physicians’ testimony that research into sarcoidosis has not yet established a precise cause of the condition, still from a legal point of view, we cannot say that the trial court was clearly wrong in finding as it did in written reasons for judgment that causation had not been established. Because a causal connection between Mrs. Matthews’ employment and her pulmonary condition was not established by a preponderance of the evidence, we cannot reverse the judgment of the trial court in refusing to direct the payment of workers’ compensation benefits.

The judgment of the trial court is affirmed at appellant’s cost.

AFFIRMED.


author: PONDER, Judge.

text:
    Alexis A. ST. AMANT v. Al TALLEY, et ux.
    No. 83 CA 0871.
    Court of Appeal of Louisiana, First Circuit.
    June 26, 1984.
    Rehearing Denied Aug. 24, 1984.

      Jerry W. Lindig, Baton Rouge, for Alexis A. St. Amant.
    Robert T. Talley, Baton Rouge, for A1 Talley, et ux.
    Before PONDER, WATKINS and CARTER, JJ.
   PONDER, Judge.

This appeal arises out of an attorney’s suit against his clients to recover fees and •the clients’ reconventional demand for damages allegedly caused by the attorney’s malpractice. The trial court awarded judgment in favor of plaintiff on the main demand in the amount of $2253.50, awarded plaintiff $750.00 for reasonable attorney’s fees and dismissed the reconventional demand.

Defendants appealed the judgment alleging the following errors by the trial court:

(1) awarding appellee judgment on the main demand;
(2) failing to award appellants judgment on their reconventional demand;
(3) applying the law relative to legal malpractice actions incorrectly;
(4) finding no substandard conduct (negligence) on the part of appellee;
(5) imposing the total burden of proof upon appellants.

Appellants, Al and Susan Talley, entered into a contract to purchase a lot and improvements from Bill Day Home Builder, Inc. (Day). Day obtained a construction loan from Capital Bank, secured by a mortgage on the property dated November 21, 1977 and built the house. Difficulties arose between appellants and Day over the construction of the house, and appellants hired Alexis St. Amant, appellee, to represent them. Eventually, Day filed suit against appellant seeking rescission of the contract and appellant reconvened for specific performance.

Before resolution of this suit, the property in dispute was conveyed to Gerard Enterprises, Ltd. and the sale was recorded. Thereafter, Capital Bank foreclosed on the property by executory process. The writ of seizure and sale that was issued ordered the cancellation of the inscription of appellants’ recorded purchase agreement. The property was purchased by Capital Bank at sheriffs sale for the amount of the indebtedness. After the sale, appellant sought the legal services of his brother, Robert Talley, and took legal action seeking a preliminary injunction to prevent Capital Bank from disposing of the property and requesting that the sales of the property from Day to Gerard Enterprises and to Capital Bank be annulled. All requested relief was denied and costs were assessed against appellant.

Appellee continued to represent the appellants in the suit brought by Day. Judgment was rendered, denying the prayers of both parties except that Day was ordered to return appellants’ deposit.

Appellants refused to pay appellee’s bill for legal representation and appellee sued.

We affirm.

Appellants’ first specification of error is that the trial judge erred in awarding appellee judgment on the main demand. The record establishes that the parties reached an agreement that appellee would provide legal representation at $45.00 per hour. Appellants did not dispute the number of hours of services rendered nor the reasonableness of the rate. Appellants’ brief on appeal contains no argument regarding this issue. We, therefore, affirm the court’s judgment on the main demand.

Appellants’ four specifications of error regarding the trial court’s dismissal of the reconventional demand are inter-related and will be treated together. The crux of appellants’ argument is that the trial court erred in finding no substandard conduct (negligence) on the part of appellee. Appellant urges that he informed appellee on at least three separate occasions that there was a possibility that the property would be sold to a third party and that appellee failed to take any action to prevent such an occurrence. Appellants further submit that appellee had a duty to examine the public records and that any competent real estate attorney would have been aware of the sale to Gerard Enterprises and the subsequent foreclosure proceedings before the sheriff’s sale occurred. Appellants assert that if they had been informed of the foreclosure proceedings, they would have had the opportunity to bid on the property at the sale. Appellants also claim that appel-lee was negligent in not maintaining close communications with the attorney that represented Capital Bank and Day, which they argue would have provided appellee with all relative information concerning the future disposition of the property.

Ramp v. St. Paul Fire and Marine Insurance Company, 263 La. 774, 269 So.2d 239, at 244 (La.1972) sets out, as follows, the duty an attorney owes to his client:

An attorney is obligated to exercise at least that degree of care, skill, and diligence which is exercised by prudent practicing attorneys in his locality. He is not required to exercise perfect judgment in every instance. However, the attorney’s license to practice and his contract for employment hold out to his client that he possesses certain minimum skills, knowledge, and abilities.

The appellee advised appellant against seeking a temporary restraining order or a preliminary injunction to enjoin the sale of the property because such action could result in damages being assessed against the appellants unless they could prove their collusion theory.

Appellee’s advice not to seek injunc-tive relief cannot be regarded as a breach of the duty owed to his client. Appellee had to weigh the consequences that might arise from seeking an injunction or taking no action and make a judgment based on those considerations. There were no factors that guaranteed that appellant would have been successful in seeking injunctive relief. Moreover, when appellant utilized his brother’s services to seek injunctive relief, the relief was denied and costs were assessed against appellant.

Although attorneys do owe their clients the duty of diligent investigation and research, appellee was not negligent in failing to discover the foreclosure proceedings. Appellee knew that appellants’ rights were protected by the record purchase agreement but that these rights were primed by Capital Bank’s construction mortgage. Appellee had no notice of or reason to suspect that Capital Bank had initiated foreclosure, proceedings nor was it his responsibility to maintain a constant vigil for the happening of a possible foreclosure.

In response to appellants’ argument that closer communication with opposing counsel would have provided appellee with the information regarding the foreclosure, we find no negligent behavior. Besides lawful discovery techniques, appellee had no available means to force the opposing counsel to be more communicative.

In Jenkins v. St. Paul Fire & Marine Ins. Co., 422 So.2d 1109 (La.1982), the Supreme Court modified the “case within a case” requirement in malpractice cases by shifting the burden of going forward with the evidence upon the defendant attorney once his negligence has been established. Appellants assume that they have been successful in establishing a prima facie case that appellee was negligent. However, the trial court did not shift the burden upon appellee because the court did not find any substandard conduct on the part of appellee.

In his appeal brief, plaintiff asked that the attorney’s fees be increased to reflect work on the appeal and that damages be awarded for the frivolous appeal by appellants. However, plaintiff did not appeal or answer defendant’s appeal. Therefore, we cannot render judgment in his favor. La.C.C.P. art. 2133; Lopez v. Buras, 321 So.2d 792 (La.App. 4th Cir. 1975).

Accordingly, the judgment of the trial court is affirmed at appellants’ costs.

AFFIRMED.

      . Muse v. St. Paul Fire and Marine Insurance Company, 328 So.2d 698 (La.App. 1st Cir.1976).