author: DOUCET, Judge. STOKER, Judge,

text:
    John D. EDWARDS, Plaintiff-Appellee, v. Leroy COBB, et al., Defendant-Appellant.
    No. 83-538.
    Court of Appeal of Louisiana, Third Circuit.
    June 14, 1984.
    Morgan J. Goudeau, III, Opelousas, for defendant-appellant.
    John D. Edwards, Opelousas, for plaintiff-appellee.

      Earl Reynolds, Baton Rouge, for defendant-appellee.
    Before DOMENGEAUX, STOKER and DOUCET, JJ.
   DOUCET, Judge.

The trial judge found the defendant realtor had breached its agreement to sell a certain tract of real estate and awarded plaintiff damages. Defendant appeals. We affirm.

Plaintiff, John Edwards, a practicing attorney in Opelousas, secured a purchase agreement from an agent of the Leroy Cobb Real Estate Agency relative to a tract of land owned by an estate under administration. . Thereafter, plaintiff brought suit seeking specific performance of the aforesaid agreement. In response, defendant Cobb answered admitting all allegations and filed a third-party demand premised upon lack of authority to sell, against Frank Dobson, attorney for the succession, and the heirs who were alleged landowners.

The heirs secured summary judgments against Cobb and Edwards. Dobson also-secured a summary judgment against Edwards and that judgment is now final. Edwards secured a summary judgment recognizing the validity of the contract and ordering Cobb to specifically perform. When the realtor was unable to tender the property, plaintiff sought damages. The trial judge found the realtor had no authority from the succession representative to bind the heirs and found the agent exceeded his authority and therefore was liable for damages occasioned by breach of the purchase agreement. Plaintiff was awarded $23,-160.00, representing the trial judge’s estimation of the appreciation of the value of the property. Defendant’s third party demand against succession representative Dobson was dismissed.

As aforementioned, plaintiff secured a summary judgment against Cobb recognizing the validity of the contract to sell and ordering specific performance. That judgment is now final due to defendant's failure to appeal same insofar as it pertains to claims between Edwards and Cobb except for damages occasioned by the latter’s failure to tender. Cobb has appealed only the judgment awarding damages.

The appellant, Leroy Cobb, failed to file any assignments of error or specifications of issue as required by Uniform Rules, Court of Appeal, Rules 2-12.4 1-3, however, argument was made in brief to the effect that plaintiff was obliged to investigate the authority of the real estate agent to determine the validity of the purchase agreement, and the trial judge erred in finding the contract between the realtor and succession representative was only a “listing agreement”.

Appellant contends he was led astray by the document entitled “Listing Agreement”, signed by succession representative Frank Dobson. However, the document is free from ambiguity and states the owner has the right to reject any offer. That the document was only a listing agreement is evidenced by testimony relative to exclusion of a house and two acres from the tract to be sold. Such a listing agreement does not vest the real estate broker with the power to bind the owner to convey real estate. Fleming v. Romero, 342 So.2d 881 (La.App. 3rd Cir.1977). Indeed, Mr. Cobb testified that he had only an exclusive listing and did not have a power of attorney to sell the property-

Appellant also contends the buy-sell agreement was nothing more than a binding offer from attorney John Edwards. However, the record discloses that Edwards would not sign a listing agreement but,.instead, requested a buy and sell contract. Representative Roy Shehane then returned to the Cobb Real Estate offices and discussed the matter with Mr. Cobb. Subsequently, Mr. Shehane returned to plaintiffs office and the parties executed the contract to buy and sell which reserved unto Edwards the right to specific performance. Mr. Cobb represented that he had authority to sell the land and by this contract he bound himself to deliver the property. When confronted with this contract, Mr. Dobson stated that he lacked the authority to sign such a contract on behalf of the succession.

The trial judge assigned the following reasons for judgment, which we adopt as our own:

“1) Leroy Cobb had no authority from Frank Dobson to bind the Estate of Earl Jennings or any other party having an interest in the tract of land which is the subject of this suit. His authority, instead, was to secure or receive offers pursuant to the listing agreement signed by Dobson. That agreement cannot be construed as an agency or power of attorney to convey title to the subject property or to enter into any agreement with a prospective purchaser by which specific performance could be enforced. By his own testimony on trial, he admitted that he had no right to sign for any seller. In Fleming v. Romero, 342 So.2d 881, the Court, quoting Tomlinson v. Allen, 152 La. 41, 92 So. 727 (1922), said:

“Except where the power to complete a sale, or to enter into a contract sale, binding on the principal, is clearly given to the broker by the terms of his contract of employment, the ordinary authority of a real estate broker employed to sell real estate is merely to find a purchaser who is ready, able, and willing to enter into a contract on the terms specified by, or acceptable to, the principal; and, in the absence of such special authorization, he has no authority to enter into a contract to sell, or to sell and convey, binding on the owner...”

2) Cobb, on the other hand, executed a valid and binding agreement to deliver the property described in the contract to buy and sell, dated April 28, 1976. That contract, marked Dobson-2 in evidence, initially signed on his behalf by his admitted agent, Mr. Shehane, and thereafter signed by him, was not, according to the testimony, executed until Shehane, on inquiry by Edwards as to his authority to sell, checked with his parties in Baton Rouge, after which he assured Edwards that he did, in fact, have such authority, and it was at Shehane’s suggestion that the reciprocal right of specific performance was written into the instrument which Edwards prepared. That instrument, with its attached addendum, and subject to its exceptions and/or exclusions, was the contract between the parties. By exceeding his authority under his listing agreement with Dobson, Cobb became liable for any resulting damages suffered by Edwards since the contract specifically stated that the $10,000 deposit by Edwards was not to be construed as earnest money.

3) When Cobb did not deliver the property as per his agreement, Edwards sued for and obtained summary judgment ordering specific performance within a prescribed time, reserving to Edwards the right to prove damages if Cobb could not perform. Cobb, failing to deliver, the plaintiff is relegated to damages. It does not appear that the contract to buy and sell specifies a specific delivery date except that possession was not to be delivered until the sale was executed. This being the case, putting in default was necessary, which was accomplished when suit was filed on April 28, 1977, as provided under LSA-C.C. art. 1911(2).

4) The testimony indicates that the property appreciated in value by $23,160 between the date of the agreement on April 28, 1976 and February 1, 1977. I feel that sum fairly represents the loss sustained in market value as a result of Cobb’s breach, and that sum shall be awarded.”

Where an appellant fails to specify alleged errors, we limit the scope of review to inspection for errors apparent from the face of the record. Segal & Vest v. Litovich, 14 La.App. 687, 130 So. 817 (1930); Goodrich v. Newell, 43 La.Ann. 378, 8 So. 921 (1891). We have reviewed the record and have discovered no error warranting reversal. Accordingly, the judgment appealed is affirmed at appellant’s cost.

AFFIRMED.

STOKER, J., concurs and assigns reasons.

DOMENGEAUX, J., concurs for the reasons assigned by STOKER, J.

STOKER, Judge,

concurring.

I concur in the affirmation of the trial court’s judgment and in the reasoning of the opinion from this court in support of the opinion. I also agree that the appellant’s brief is not articulated as required by the Uniform Rules of the Courts of Appeal. Nevertheless, a brief was filed on behalf of appellant in this court. The last paragraph of the majority opinion appears to suggest that no brief was filed on appellant’s behalf in this court. Had no brief been filed, we might have considered the appeal as abandoned. It appears to me that failure to represent or present the appellant’s position was the problem in the case of Segal & Vest v. Litovich, 14 La.App. 687, 130 So. 817 (1930). In Goodrich v. Newell, 43 La. Ann. 378, 8 So. 921 (1891), there was apparently no record from the trial court below, as well as no brief or assignment of errors. In those cases the appeals were, in effect, treated as abandoned. The problem here is that, although a brief was filed on behalf of appellant, it is most difficult to follow the arguments set forth in the brief. No doubt it would have been helpful if appellant’s brief had contained a specification of errors. I think we have attempted to follow the arguments set forth by counsel in appellant’s brief and to discover what the complaint is. In my opinion, the real deficiency of appellant’s brief is that it fails to set forth with clarity or persuasiveness any meritorious position in this appeal.

As noted in the majority opinion the requirement of an assignment of errors by an appellant in a civil case is prescribed by court rule. The requirement is that an “assignment of alleged errors relied upon” be included in the appellant’s brief. Assignments of error in criminal cases are required by the Code of Criminal Procedure in Article 844. The functions of such assignments are entirely different from the briefing requirement in civil eases. In criminal eases, as spelled out in Article 844, the assignment is a procedure which must be accomplished prior to briefing. Its function is to fix the issues prior to consideration by the appellate tribunal. Among other reasons, the advance assignment permits the trial court to submit any per cu-riam comments as it may desire. See comments under LSA-C.Cr.P. art. 844. Also, the assignment of errors limits the scope of review on appeal. Article 920 of the Code of Criminal Procedure provides:

“Art. 920. Scope of appellate review
“The following matters and no others shall be considered on appeal:
(1) An error designated in the assignment of errors; and
(2) An error that is discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence.”

As noted in paragraph two of this article, the doctrine of error “patent on the face of the record” is applicable in criminal cases as provided by statute. I am not at all certain that it applies in civil cases.

It seems to me that in criminal cases the doctrine is directed to discovery of obvious infringement of basic constitutional rights which may affect life and liberty. No such protection is extended to civil litigants and the burden is on them to pursue their appellate rights on their own. Moreover, the majority opinion deals fully with the facts and the apparent issues; therefore, we have not in fact confined ourselves to an inspection of the record for patent errors.

In view of these comments, I feel that the last paragraph of the majority opinion may possibly be misleading. Therefore, I do not subscribe to the holding of that paragraph. Consequently, I concur as indicated above.

      . 2-12.4. Appellant’s Brief. The brief of the appellant or relator shall set forth the jurisdiction of the court, a succinct syllabus or statement of the principles of law relied upon with corresponding citations of authority, a concise statement of the case, the action of the trial court thereon, a specification or assignment of alleged errors relied upon, the issues presented for review, an argument confined strictly to the issues of the case, free from unnecessary repetition, giving accurate citations of the pages of the record and the authorities cited, and a short conclusion stating the precise relief sought.
      Citations of cases shall be to volume and page of the official reports (and when possible to the unofficial reports). It is recommended that where United States Supreme Court cases are cited, all three reports be cited, e.g., Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). When a decision from another state is cited, a copy thereof should be attached to the brief.
      The argument on a specification or assignment of error in a brief shall include a suitable reference by volume and page to the place in the record which contains the basis for the alleged error. The court may disregard the argument on that error in the event suitable reference to the record is not made.
      All specifications or assignments of error must be briefed. The court may consider as abandoned any specification or assignment of error which has not been briefed.
      The language used in the brief shall be courteous, free from vile, obscene, obnoxious, or offensive expressions, and free from insulting, abusive, discourteous, or irrelevant matter or criticism of any person, class of persons or association of persons, or any court, or judge or other officer thereof, or of any institution. Any violation of this Rule shall subject the author, or authors, of the brief to punishment for contempt of court, and to having such brief returned.
      Source:
      S.Ct., R 7, S 6.
      C.A., R 9, S 3 and S 6.

      . Rule 1-3. Scope of Review
      The scope of review in all cases within the appellate and supervisory jurisdiction of the Courts of Appeal shall be as provided by LSA-Const. Art. 5, § 10(B), and as otherwise provided by law. The Courts of Appeal will review only issues which were submitted to the trial court and which are contained in specifications or assignments of error, unless the interest of justice clearly requires otherwise.
      Source:
      C.A., R 9A.
      See also La.C.C.Pro. art. 2162, allowing dismissal of appeals where "under the rules of the appellate court, the appeal has been abandoned.”


source: Caselaw Access Project

author: KNOLL, Judge.

license: Public Domain

text:
    Howard F. SPEIGHTS, Jr., Plaintiff-Appellant, v. Laurie P. Speights ROCKWOOD, Defendant-Appellee.
    No. 83-653.
    Court of Appeal of Louisiana, Third Circuit.
    June 15, 1984.

      Louis Cosenza of Cosenza & Reid, Lees-ville, for plaintiff-appellant.
    F. Clay Tillman, Jr. of Tillman & Fonten-ot, Leesville, for defendant-appellee.
    Before CUTRER, YELVERTON and KNOLL, JJ.
   KNOLL, Judge.

This is a child custody case. The divorced father, a non-resident of Louisiana, appeals from a judgment awarding custody of his minor son to the mother, a resident of Louisiana. The father maintains that under LSA-R.S. 13:1700 et seq., the Louisiana court should have given full faith and credit to an earlier Texas decree awarding custody to him.

FACTS

Howard F. Speights, Jr., and Laurie P. Speights Rockwood were married in Clayton County, Georgia on October 29, 1977. On October 6, 1978, their son, Daniel, was born. Both husband and wife were in the United States Army, and on November 23, 1979, while stationed in West Germany, they physically separated. Shortly after their separation Laurie returned to the States with her son and resided in Arkansas.

On January 16,1980 Howard filed suit in his home state of Georgia seeking a divorce from his wife and asking for the custody of Daniel. The divorce was granted on May 22, 1980, but no determination of child custody was made.

Between May 1980 and April 1982, Laurie lived in Batesville, Arkansas; Hereford, Texas; Vidor, Texas; and Beaumont, Texas. While Laurie was living in Beaumont, Howard had her personally served with a petition to determine child custody which he had filed in the Domestic Relations Court for Jefferson County, Texas. On February 12, 1982 both parties represented by counsel, appeared before the Honorable James M. Farris for a temporary custody proceeding. After the hearing, both parties were awarded joint custody pending the final custody decree. Physical custody was awarded to the father, and the mother was restrained from removing the child from Jefferson County.

Shortly after the temporary custody hearing but before the father could obtain physical custody of Daniel, Laurie left the State of Texas with her son and established residency in Vernon Parish, Louisiana.

Howard and his attorney, along with Charles Smallwood, Laurie’s attorney, appeared before Judge Farris on April 8,1982 for final determination of child custody. Laurie was not present. After ruling that the Texas court had proper jurisdiction to determine the matter, Judge Farris awarded custody of Daniel to the father.

On October 25, 1982 Howard initiated an action in Vernon Parish, Louisiana, to obtain recognition of the Texas custody decree. On October 16, 1982 the trial court heard the issue of recognition of the foreign judgment. Although the trial court noted that the Texas court had jurisdiction and that Laurie had knowingly fled the State of Texas with the child, it refused to recognize the Texas judgment on the grounds that to do so would not be in the best interest of the child. As a corollary to its ruling the trial court further noted that it would entertain a demand by Laurie to modify the Texas decree.

Laurie subsequently filed a reconventional demand to obtain the custody of Daniel. Howard interposed objections of lack of jurisdiction and res judicata to the Louisiana custody action which were overruled by the trial court. On June 14, 1983 the trial court awarded custody to the mother.

Howard has appealed the custody order of the Louisiana court specifying that the trial court erred in refusing to give full faith and credit to the custody decree of the Domestic Relations Court for Jefferson County, Texas.

The issue in this case is whether the Uniform Child Custody Law denies jurisdiction to a Louisiana court over this case.

The Uniform Child Custody Law went into effect in Louisiana on October 1, 1978. The purposes of the law are to: provide some stability to reasoned custody decrees by discouraging relitigation; deter custody determinations by physical abduction; avoid jurisdictional competition and conflicting custody decrees; and attain a secure home environment necessary for a child’s well being. LSA-R.S. 13:1700(A); Revere v. Revere, 389 So.2d 1277 (La.1980). The broad grant of jurisdiction over the status of the custody of a minor who is domiciled in, or is in, this state as provided in LSA-C.C.P. Art. 10(A)(5) has been eroded to a certain degree by provisions of the Uniform Child Custody Jurisdiction Act. For example, see LSA-R.S. 13:1705 (simultaneous proceedings in other states); LSA-R.S. 13:1706 (inconvenient forum); LSA-R.S. 13:1707 (jurisdiction declined by reason of conduct); and LSA-R.S. 13:1713 (modification of another state’s custody decree).

In Settle v. Settle, 276 Or. 759, 770, 556 P.2d 962, 968 (1976) the Oregon Supreme Court made the following statement:

“A close reading of the [Uniform Child Custody Jurisdiction] Act discloses a schizophrenic attempt to bring about an orderly system of decision and at the same time to protect the best interests of the children who may be immediately before the court. When put to the test of a factual situation presenting an irreconcilable conflict between those two interests, we read the Act as making predominate [sic] the best interests of the children before the court.”

For the foregoing and following reasons we find that the Louisiana court had jurisdiction over the child custody matter and was not bound to simply recognize and enforce the Texas decree.

From the outset we note that we do not condone the actions of Laurie whereby she absconded with her child from Texas before a final custody decree could be rendered. Nevertheless from the general purposes of the Act it is clear that the mere physical presence of the child does not suffice to give jurisdiction to the Louisiana courts either to determine custody or to modify a foreign custody decree. For a Louisiana court to have jurisdiction the home state test of LSA-R.S. 13:1702(A)(1) must be met or the best interest of the child, test of LSA-R.S. 13:1702(A)(2) must be satisfied. Moore v. Moore, 379 So.2d 1153 (La.App. 2nd Cir.1980). Physical presence coupled with the jurisdictional requirements mandated by the Act ensure that mere presence of the child without more will not be sufficient to confer Louisiana courts with power to determine that minor’s custody.

Under LSA-R.S. 13:1702(A)(1) Louisiana has jurisdiction to determine child custody because the child’s home state at the commencement of these proceedings was Louisiana. LSA-R.S. 13:1701(5) defines “home state” in pertinent part as:

“... the state in which the child immediately preceding the time involved lived with his parents, a parent, or a person acting as parent, for at least six consecutive months, ....”

When appellant initiated these proceedings to recognize the Texas custody decree, the child, his mother and stepfather had resided in Louisiana in excess of six months. Not only was Louisiana the home state, but it was the state with the most significant connections. Therefore it was also in the best interest of the child for Louisiana to assume jurisdiction. From these same facts Texas no longer had jurisdiction over this matter. It is not the child’s home state and there is no “significant connection” with the child since no parent resides there (Texas) and no “substantial evidence concerning the child’s present or future care, protection, training, and personal relationships” exists in Texas. The record shows Howard to be a resident of North Carolina.

In summation, the question presented this court was since Louisiana has jurisdiction as the home state of the minor child, is it precluded from exercising its jurisdiction for the determination of child custody because the mother of the child left the jurisdiction of the State of Texas without the consent of the father who was entitled to custody. Our answer is no. In Hadley v. Hadley, 394 So.2d 769 (La.App. 4th Cir.1981), writ denied 399 So.2d 622 (La.1981) the court held that a trial judge is not compelled to follow the language of LSA-R.S. 13:1707(B) which requires that a court not exercise its jurisdiction to modify another State’s custody decree where the petitioner has improperly removed the child from the physical custody of a person entitled to it without his consent. The opening language of LSA-R.S. 13:1707(B) commences with the words “Unless required in the interest of the child ...” This indicates to us a legislative attempt to permit the assumption of jurisdiction by a Louisiana court in an instance such as the case at hand, i.e., the Texas court did not make a finding that the mother of the child was unfit; Louisiana is the “home state” at the commencement of the proceedings in Vernon Parish; and significant connections exists with the child and one parent in this state. There is no question that the determination of the trial court in this instance, that the best interest of the child was the paramount consideration, was correct.

For the foregoing reasons, the judgment of the trial court is affirmed. All costs are assessed against Howard F. Speights, Jr.

AFFIRMED.


text:
    STATE of Louisiana v. Jean N. ALEXANDRA, et al. STATE of Louisiana v. Robert PENNINGTON, et al.
    No. K-2439.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 19, 1984.

      Before REDMANN, C.J., and BARRY and GARRISON, JJ.
   WRIT MADE

PEREMPTORY — REMANDED

In a discovery motion the defendant requested “any record in the possession of the state or accessible to the state (or any information) that sets forth the arrest and conviction record of any witnesses that the state intends to call in this matter.”

The State seeks review of the trial judge’s broad order that “the defense be provided a ‘rap sheet’ on anybody that testifies in this case.”

The State is obligated, if requested, only to “respond to a specific request of the defense by stating whether the state had knowledge or possession of the conviction records” and to furnish them to the defendant or submit them to the court to determine entitlement. State v. Washington, 407 So.2d 1138 (La.1981) citing State v. Harvey, 358 So.2d 1224 (La.1978).

The State has no affirmative duty to find and produce rap sheets. See State v. Hines, 422 So.2d 1297 (La.App. 4th Cir.1982).

Therefore, this matter is remanded for the State to respond to question # 1 of the Motion as to its possession of criminal records on its witnesses.


author: LABORDE, Judge.

text:
    Marlene King LEBLANC, Plaintiff-Appellee, v. Jack Roland LEBLANC, Defendant-Appellant.
    No. 84-326.
    Court of Appeal of Louisiana, Third Circuit.
    June 22, 1984.
    Marlene King LeBlanc, in pro. per.
    Jack Roland LeBlanc, in pro. per.
    Before GUIDRY, STOKER, and LA-BORDE, JJ.
   MOTION TO DISMISS

LABORDE, Judge.

The defendant-appellant, Jack Roland Le-Blanc, has devolutively appealed from a judgment denying his motion for the recu-sation of the Honorable Douglas Nehrbass, judge of the Fifteenth Judicial District Court. This court issued a rule to show cause why this appeal should not be dismissed on the grounds that the judgment appealed from is a non-appealable interlocutory judgment. LeBlanc has failed to answer said rule.

An appeal may be taken from a final judgment or an interlocutory judgment which may cause irreparable injury. LSA-C.C.P. Art. 2083. A final judgment is one that determines the merits in whole or in part. A judgment that only determines preliminary matters in the cause of an action is an interlocutory judgment. LSA-C. C.P. 1841.

The Code of Civil procedure is silent as to the procedural means to achieve review of an order granting or denying recu-sation of a judge. A review of the jurisprudence reveals that a judgment denying a motion for recusation is interloctory in nature and may be reviewable on appeal of a final judgment on the merits. State, Department of Highways v. McDonald, 329 So.2d 898 (La.App. 2nd Cir.1976); Schwing v. Dunlap, 125 La. 677, 51 So. 684 (La.1910).

Accordingly, we dismiss ex proprio motu the appeal of the defendant appellant, Jack Roland LeBlanc. The matter is remanded to the trial court for further proceedings according to law.

APPEAL DISMISSED.


author: ALFORD, Judge.

text:
    SOUTH LOUISIANA SYSTEMS, INC. v. James McDowell BOONE and James McDowell Boone and Associates.
    No. 83 CA 0632.
    Court of Appeal of Louisiana, First Circuit.
    June 26, 1984.

      James E. Kuhn, Carolyn Lahr, Denham Springs, for plaintiff-appellee.
    John Cvejanovich, Madisonville, for defendants-appellants.
    James M. Boone, in pro per.
    Before LOTTINGER, EDWARDS and ALFORD, JJ.
   ALFORD, Judge.

This is an appeal from the granting of a summary judgment awarding the purchase price of certain word processing equipment and supplies to plaintiff, South Louisiana Systems, Inc. (SLS). Defendants, James McDowell Boone and James McDowell Boone and Associates (Boone and Associates) appealed, arguing that summary judgment was improperly granted. We agree.

SLS, in the course of its business of selling word processing equipment, contacted Boone and Associates, a professional law corporation. According to the record, the arrangement between the parties was apparently to be as follows: SLS was to sell certain equipment to United States Leasing Corporation (U.S. Leasing); U.S. Leasing was to, in turn, lease the equipment to James Boone and Boone and Associates.

The word processing equipment and some supplies were 'delivered to Boone and Associates on January 4, 1982. On or about February 4, 1982, SLS contacted Boone and Associates, notifying them that SLS was unable to arrange the leasing agreement between Boone and Associates and U.S. Leasing. The equipment was not returned to SLS and SLS filed this lawsuit.

SLS sequestered the word processing equipment, and Boone and Associates’ “Motion to Dissolve Wrongfully Issued Writ of Sequestration” was denied. Summary judgment was thereafter granted in favor of SLS for the full purchase price of the equipment and supplies apparently based upon a contract of sale.

Summary judgment should be granted only if there is no genuine issue of material fact and the mover is entitled to judgment as a matter of law. LSA C.C.P. art. 966. The burden of showing that there is no genuine issue of material fact in dispute is upon the mover for summary judgment; any doubt is to be resolved against the granting of summary judgment and in favor of a trial on the merits. Chaisson v. Domingue, 372 So.2d 1225 (La.1979). Summary judgments should be sparingly granted; a motion for summary judgment is not a substitute for a trial on the merits. Succession of Mack, 392 So.2d 122 (La.App. 1st Cir.1980).

The burden of showing that there was a sale either at the time of the initial negotiations between SLS and Boone and Associates or at the time of the delivery of the equipment and supplies to Boone and Associates was not met. The amended petition of SLS plainly states that, “When negotiations first began between the representative of the plaintiff" and defendant, the sale was to be completed on a lease basis. However, it became impossible for such an arrangement to go forward.” The phrase “the sale was to be completed on a lease basis” refers to the undisputed fact that SLS was going to sell the equipment to U.S. Leasing and that U.S. Leasing was to then lease that same equipment to Boone and Associates. This arrangement was never consummated and, even if it had been, SLS would not have had a sale to Boone and Associates but, rather, to U.S. Leasing. Nothing in the record contradicts this finding;

We further note that although there were some discussions between SLS and Boone and Associates concerning the equipment on or about February 4, 1982, or one month after the delivery of the equipment and supplies, nothing in the record indicates that a sale was concluded at that time. Therefore, the granting of summary judgment for the full purchase price was inappropriate. There are yet unresolved genuine issues of material fact in this case, including the nature of the arrangement between SLS and Boone and Associates, as well as to the true intent of the parties.

Accordingly, for the foregoing reasons the judgment of the trial court is reversed and the matter is remanded for further proceedings consistent with this ruling. Costs of this appeal are taxed against plaintiff-appellee; all other costs are to await final disposition of this case.

REVERSED AND REMANDED.

      . The record indicates that Boone and Associates did not return the equipment because they understood that they had leased the equipment.


author: LOTTINGER, Judge.

text:
    David S. CARR v. STATE of Louisiana Through the DEPARTMENT OF HEALTH AND HUMAN RESOURCES, et al.
    No. 83 CA 0785.
    Court of Appeal of Louisiana, First Circuit.
    June 26, 1984.
    Jack N. Rogers, Baton Rouge, for plaintiff-appellant David'S. Carr.
    Charles E. Daspit, Dept, of Health and Human Resources, Baton Rouge, for defendants-appellees State of Louisiana Through Department of Health and Human Resources, et al.
    Before LOTTINGER, EDWARDS and ALFORD, JJ.
   LOTTINGER, Judge.

Plaintiff required hospitalization for a mental disorder. Suitable facilities were not available in Louisiana, therefore plaintiff was sent to Dallas, Texas for treatment and hospitalization. A claim was made for reimbursement of the expenses of treatment with the Department of Health and Human Resources. The claim was pursued through administrative channels after DHHR denied the claim. Because plaintiff was unsuccessful in his claim via administrative remedies, suit was filed in district court to review the DHHR decision. In this suit plaintiff requested the expenses for treatment and legal interest from date of judicial demand. Judgment was ren- ■ dered in plaintiffs favor in the amount of $91,877.06, but, the trial court refused to grant the request for legal interest reasoning that in the absence of statutory authority the state is not liable to plaintiff for legal interest.

This appeal followed. Plaintiff asserts a single assignment of error arguing that the trial court erred in denying legal interest on the judgment.

Plaintiff principally argues that based on Article 12, Section 10, La. Const. (1974), the state is no longer immune from suit and is therefore liable for any legal interest due on a judgment rendered adversely against the state as a defendant.

Defendant argues that it is well known that the state is not generally liable for interest unless specifically allowed for by agreement or granted by statute. Boxwell v. Department of Highways, 203 La. 760, 14 So.2d 627 (1943).

Plaintiff cites the decisions in Southern Construction Company v. Housing Authority of City of Opelousas, 250 La. 569, 197 So.2d 628 (1967) and Pittman Construction Company v. Housing Authority of New Orleans, 169 So.2d 122 (La.App. 4th Cir.1964), writ denied 247 La. 343, 170 So.2d 865, as support for imposing the payment of interest against the state or its’ agency.

In Pittman, plaintiff sued the Housing Authority of New Orleans under a building contract. Plaintiff contended that the rule that the state is not liable for interest unless specifically agreed to by agreement as granted by statute was abrogated by the 1960 amendment to Article 3, Section 35 of the Louisiana Constitution of 1921. The amendment read in part:

Section 35. The legislature is empowered to waive, by special or general laws or resolutions, the immunity from suit and from liability of the state, and of ... political subdivisions, public boards ... corporations, agencies and authorities and other public or governmental bodies; and each authorization by the legislature for suit against the state or other such public body, heretofore and hereafter enacted or granted, shall be construed to be and shall be effective and valid for all purposes, as of and from the date thereof, as a waiver of the defendant’s immunity both from suit and from liability, (emphasis added)

The statute which created housing authorities provided specifically that an authority could “sue and be sued.” The court stated that the 1960 amendment in effect placed the Housing Authority in the same position as any private litigant with respect to the payment of interest, and therefore ordered the Housing Authority to pay legal interest as demanded.

In the Southern case, suit was also brought based on the balance due under a construction contract together with interest and court costs. In granting plaintiff interest and costs the Supreme Court reasoned that the 1960 amendment to Article 3, Section 35 operated as a waiver of immunity from liability for interest and costs citing with approval the Pittman case.

La.R.S. 36:251 provides that DHHR can “sue and be sued.”

The principles of Article 3, Section 35, of the Louisiana Constitution of 1921 are fully incorporated into Article 12, Section 10 of the 1974 Constitution. Article 12, Section 10(A) reads as follows:

Neither the state, a state agency, nor a political subdivision shall be immune from suit and liability in contract or for injury to person or property, (emphasis added)

Pursuant to the enactment of Article 12, Section 10, the state not only waives immunity from suit, but also immunity from liability which includes legal interest.

Therefore, for the above and foregoing reasons the judgment of the trial court insofar as it denied judicial interest is reversed, and it is now ordered that judicial interest be awarded plaintiff-appellant from date of judicial demand until paid. All costs are assessed against DHHR in the amount of $1,230.03.

REVERSED AND RENDERED.


author: WATKINS, Judge.

text:
    Henry ANDERSON v. C. Paul PHELPS, et al.
    No. 83 CA 0786.
    Court of Appeal of Louisiana, First Circuit.
    June 26, 1984.
    Henry Anderson, in pro per.
    J. Marvin Montgomery and Karen L. Godwin, Baton Rouge, for defendants-ap-pellees C. Paul Phelps, et al.
    Before PONDER, WATKINS and CARTER, JJ.
   WATKINS, Judge.

Plaintiff, an inmate at Louisiana State "Penitentiary at Angola, brought this tort suit against defendants, various Department of Corrections officials, for injuries he received when he was burned by a hot liquid allegedly thrown on him by another inmate. From a judgment dismissing his suit, plaintiff appeals.

The incident giving rise to the present suit occurred sometime between ten and eleven p.m. on April 9, 1980. Plaintiff was attempting to go to sleep in his bed in Hickory Dormitory, which housed between fifty-eight and sixty inmates, when a hot liquid substance was thrown on him causing burns to his face and back. The only security officer assigned to the dormitory did not witness the incident. He testified that he had just returned from giving his bed count when he saw plaintiff jump out of bed cursing. Plaintiff was then taken to the prison hospital and treated, for his injuries.

A hearing was held before Commissioner Norbert C. Rayford. The Commissioner issued a report recommending dismissal of the suit on the basis that plaintiff failed to show by a preponderance of the evidence that defendants’ negligence resulted in his injury. The Nineteenth Judicial District Court reviewed the evidence and the Commissioner’s report and rendered judgment dismissing plaintiff’s suit.

In this appeal, plaintiff raises two basic issues: (1) whether plaintiff met his burden of proving that his injuries were caused by defendants’ negligence and (2) whether the violation of a federal court order requiring two guards in each dormitory was sufficient in and of itself to show negligence on the part of the defendants.

Under the jurisprudence, the state is not an insurer of an inmate against attacks by other inmates. The standard is that of ordinary and reasonable care. In order to hold the penal authorities liable for an injury inflicted upon an inmate by another inmate, the authorities must know or have reason to anticipate that harm will ensue and fail to use reasonable care in preventing the harm. Parker v. State, 282 So.2d 483 (La.1973); Shields v. State Through Dept. of Corrections, 380 So.2d 123 (La.App. 1st Cir.1979), writ denied 382 So.2d 164.

The record shows that at no time did plaintiff inform defendants that he feared an attack. Plaintiff himself testified that he did not know that an attack was imminent. The security officer assigned to the dormitory and the shift supervisor both testified that they had no reason to believe plaintiff was in danger. We therefore find that the district court properly concluded that plaintiff failed to prove by a preponderance of the evidence that defendants knew or had reason to anticipate that harm would ensue and failed to use reasonable care in preventing the harm.

Plaintiff further argues that defendants were negligent in failing to post two security guards in each dormitory as required by the federal court order in Williams v. Edwards, 547 F.2d 1206 (5th Cir.1977). Plaintiff apparently contends that defendants’ failure to comply with the order amounted to negligence per se.

In McGee v. State Through Dept. of Corrections, 417 So.2d 416 (La.App. 1st Cir.1982); writ denied 420 So.2d 981, this court dealt with precisely the same issue. In McGee we concluded that a violation of the federal court order did not mean there was negligence per se and that the plaintiff still must prove fault on the part of the state in order to establish its liability. We agree with the finding of the Commissioner in this case that if another inmate was dedicated to the purpose of causing injury to plaintiff he would have done so regardless of the number of guards present. Plaintiff failed to show a direct causal relationship between the failure to have two security guards present in the dormitory and the actions of his attacker.

For the above reasons, the judgment of the district court is affirmed. All costs of this appeal are assessed against plaintiff-appellant.

AFFIRMED.


author: CARTER, Judge:

text:
    Willie GROSS v. CONTINENTAL INSURANCE COMPANY and City Products Corporation d/b/a T.G. & Y. Stores.
    No. 83 CA 0787.
    Court of Appeal of Louisiana, First Circuit.
    June 26, 1984.

      Curtis Calloway, Baton Rouge, for plaintiff-appellant Willie Gross.
    Michael D. Zelden, Baton Rouge, for defendants-appellees Continental Ins. Co. and City Products Corp. d/b/a T.G. & Y. Stores.
    Before PONDER, WATKINS and CARTER, JJ. .
   CARTER, Judge:

This is a workmen’s compensation claim for medical expenses asserted in a rule to show cause filed on December 16, 1982.

On or about March 14, 1977, plaintiff, Willie Gross, was injured while in the course and scope of his employment with T.G. & Y. Plaintiff was treated for this work-related injury by Dr. John F. Loupe, who ultimately performed a laminectomy at the L5/S1 disc space on September 20, 1977. Dr. Loupe discharged plaintiff on March 15, 1978, with a fifteen (15) percent physical disability.

On June 1, 1978, plaintiff was involved in an automobile accident during which the vehicle in which he was riding was rearend-ed. As a result of this accident, plaintiff incurred injuries for which he settled with the tortfeasor for $5,000.00. Later during 1978, in a non-work-related incident, plaintiff slipped and fell. As a result of these two occurrences, plaintiff returned to Dr. Loupe, who referred plaintiff to Dr. S. Henry LaRocca on November 5, 1978.

On March 13, 1980, plaintiff underwent surgery at the Touro Infirmary for a repeat rupture of a disc in the low back. When plaintiff submitted medical bills for the March 13 surgery to defendant for payment, defendants denied payment as not being related to the injury of March, 1977.

On September 9, 1981, plaintiff filed a rule to show cause why defendants should not be condemned to pay the medical expenses incurred as a result of the second surgery, as well as penalties and attorney’s fees. The trial judge overruled the rule to show cause and dismissed the action on October 13, 1981.

Subsequently, on December 16, 1982, plaintiff filed another rule to show cause why the same medical expenses that were previously denied in addition to others should not be paid by defendants. Plaintiff again requested penalties and attorney’s fees.

Defendants then filed an exception of res judicata maintaining that the subject matter of the present rule had previously been heard and that judgment regarding those medical expenses had been rendered previously.

The trial court sustained the exception of res judicata as it pertained to that portion of the rule to show cause concerning those medical bills which were the subject of the rule to show cause of September 9, 1981 and judgment of October 13,1981. Certain other medical bills were considered by the trial court, and defendants were ordered to pay those expenses. The trial court, however, denied plaintiff’s claim for penalties and attorney’s fees. From this judgment, plaintiff appeals.

Plaintiff assigns as error the following:

(1) The trial court erred in sustaining defendant’s exception of res judicata as to medical bills from Dr. S. Henry La-Rocca and the Touro Infirmary;
(2) The trial court erred in denying plaintiff’s claim for medical expenses for drugs, Dr. Alan N. Jacobs’ bill, a bill from the St. Charles General Hospital, and other medical expenses because they were not the result of plaintiff’s work-related injury; and,
(3)The trial court erred in denying plaintiff’s claim for penalties and attorney’s fees upon defendant’s failure to pay medical expenses within sixty days.

The contested medical expenses can be conveniently divided into two categories; those included in a prior rule that was dismissed and those newly asserted in the present rule. Those expenses asserted in the prior rule were the subject of the plea of res judicata and of the remaining items, some were allowed and some disallowed.

EXCEPTION OF RES JUDICATA

Plaintiff contends that the trial court erred in sustaining defendant’s exception of res judicata. Plaintiff maintains that the trial court did not have sufficient medical information upon which to base its ruling on the first rule to show cause and that the court should therefore have entertained the second rule to show cause on the medical bills once such information was available.

In order for an exception of res judicata to be maintained, the subsequent action must (1) be between the same parties, (2) be based on the same cause of action, and (3) the thing demanded must be the same. LSA-C.C. art. 2286; Welch v. Crown Zellerbach Corp., 359 So.2d 154 (La.1978), on remand, 365 So.2d 586 (La. App. 1st Cir.1978), affirmed in part and reversed in part, 393 So.2d 270 (La.App. 1st Cir.1980); Mitchell v. Bertolla, 340 So.2d 287 (La.1976); Continental Ins. Co. v. Lute, 418 So.2d 43 (La.App. 3rd Cir.1982), writ denied, 429 So.2d 142 (La.1983); McKean v. Campbell, 372 So.2d 652 (La. App. 1st Cir.1979).

In the case sub judice, the same parties, Gross, Continental Insurance Company, and City Products Corporation d/b/a T.G. & Y. Stores, were before the court on a rule to show cause again demanding payment of medical expenses which had been previously rejected at the prior rule. Clearly, the trial judge was correct in sus-taming defendants’ exception of res judica-ta to those items.

DENIAL OP MEDICAL EXPENSES

Plaintiff contends that it was error for the trial court to deny his claim for medical expenses for (1) drugs, (2) Dr. Alan N. Jacobs, and (3) St. Charles General Hospital. Plaintiff contends that he is entitled to all necessary treatment to relieve pain resulting from a work-related injury, which he maintains the aforementioned bills represent. Plaintiff argues that defendants’ failure to establish a non-work-related cause for his injuries is fatal to the defense against his claim for the medical expenses.

The trial judge succinctly set forth the following reasons for judgment, which provide in pertinent part:

“The Court has under consideration the following bills:
1. Dr. Richard L. Levine
2. Whitey Surgical Supplies
3. Drugs
4. Dr. H. LaRocca ($500.00 only)
5. Dr. A. Jacobs
6. St. Charles General Hospital
Plaintiff testified at the court hearing regarding these bills. The only medical evidence offered by plaintiff was the deposition of Dr. LaRocca, dated April 16, 1982. The bill of Dr. Jacobs is for services rendered in November, 1982 and the bill of St. Charles General Hospital is for the period 11/8/82 to 11/12/82. There is no evidence that these medical charges are related to the accident sued on.
The bill of Whitey Surgical Supplies in the amount of $185.50 is dated 3/10/80 and is for a chair back brace and was ordered by Dr. LaRocca. Defendant is ordered to pay this bill. The $500.00 charge of Dr. LaRocca is also ordered paid by defendant as is the $439.06 bill of Dr. Levine.
All of the charges for drugs are denied for lack of sufficient evidence that they are related to the accident which forms the basis of this suit.
Defendant has resisted payment of the above bills, contending that plaintiff was involved in an automobile accident prior to surgery performed by Dr. LaRocca. However, defendant has not offered any evidence to show that Dr. LaRocca’s treatment and surgery was caused by the automobile accident.
In summary, defendant is ordered to pay the bill of Whitey Surgical Supplies in the amount of $185.50, the bill of Dr. LaRocca in the amount of $500.00 and the bill of Dr. Levine in the amount of $439.06.”

Clearly, the trial judge found that the medical expenses rejected were the result of the automobile accident, slip and fall, or a combination of the two rather than a continuation of the work-related disability. Such finding should not be disturbed absent manifest error. Canter v. Koehring Company, 283 So.2d 716 (La. 1973). We cannot say that the trial judge’s findings were manifestly erroneous.

PENALTIES & ATTORNEY’S FEES

Plaintiff contends that the defendants should be condemned to pay penalties and attorney’s fees pursuant to LSA-R.S. 23:1201.2 for its failure to pay plaintiff’s medical bills within sixty days.

This court has construed LSA-R.S. 23:1201.2 to mean that where there is a bona fide factual dispute as to whether the employee's disability was work-related, the employer has “probable cause” for refusal to pay benefits. Wright v. Red Ball Motor Freight, Inc., 315 So.2d 344 (La.App. 1st Cir.1975).

The trial judge found and the record clearly reflects that the defendants’ refusal was not arbitrary or unreasonable and that a bona fide dispute existed as to whether the expenses incurred were the result of a work-related injury.

For the above reasons, the judgment of the trial court is affirmed at plaintiff-appellant’s costs.

AFFIRMED.

      . At the first rule to show cause in 1981, the amounts of the bills of the Touro Infirmary and Dr. LaRocca were $6,040.54 and $2,280.00. At the subsequent rule to show cause in 1983, the Touro Infirmary bill was $6,048.54 and Dr. La-Rocca’s bill was $2,780.00. Although discrepancies in the amounts of the final bills exist, the record clearly reflects that the bills which were the subject of the rule in 1983 are the same bills previously before the court in the 1981 rule.


text:
    Joseph HARPER v. INTRACOASTAL TRUCK LINES, et al.
    No. 83 CA 0792.
    Court of Appeal of Louisiana, First Circuit.
    June 26, 1984.
    Joe M. Inabnett, New Orleans, for plaintiff-appellee.
    Joseph A. Reilly, Jr., Henderson, Hane-mann. & Morris, Houma, for defendant-ap-pellee Roustabouts, Inc.
    John W. Perry, Jr., Baton Rouge, for defendant-appellant Intracoastal Truck Lines, Inc.

      Before LOTTINGER, EDWARDS and ALFORD, JJ.
   ALFORD, Judge.

This appeal arises as a result of an accident which occurred on or about June 7, 1978. Joseph Harper was an employee of Roustabouts, Inc., appellee. Roustabouts had contracted with Intracoastal Truck Lines, Inc., appellant, to supply Intracoas-tal with such workers as they would from time to time need. Harper had been sent by Roustabouts to an Intracoastal job site where he was unloading pipe from a rail car when he was injured.

Harper sued Intracoastal in tort for his injuries. Intracoastal answered and filed a third party demand against Roustabouts, alleging ultimately that the contract between Roustabouts and Intracoastal required Roustabouts to defend Intracoastal against Harper’s suit. The denial of that third party demand is the subject of this appeal.

Harper’s tort suit against Intracoastal was dismissed on a summary judgment, finding Intracoastal to be the statutory employer of Harper. Thus, Harper's remedy was limited to Workmen’s Compensation. The only issue left for resolution at trial was the third party demand by Intracoastal asserting rights against Roustabouts under the contract.

A joint stipulation had been entered into between Intracoastal and Roustabouts wherein it was stated that, following institution of suit by Harper against Intracoas-tal, Intracoastal made demand that Roustabouts assume and/or undertake the defense of Intracoastal. The demand was denied and Intracoastal furnished its own defense. It was further stipulated that no amendment by Intracoastal to the third party demand was needed to allege a breach of contract on the part of Roustabouts for failing, under the contract, to name Intraeoastal as an additional insured, and that Roustabouts in fact did not name Intracoastal as an additional insured.

The trial court took the case under advisement, rendering judgment against In-tracoastal’s third party demand. No written reasons for judgment were issued. In-tracoastal brought this appeal, arguing that if Roustabouts had named Intracoastal as an additional insured as required by the contract between the two companies, then the insurer would have had, under the insurance contract, the duty to defend the tort action by Harper against Intracoastal. Therefore, Intracoastal concludes the failure of Roustabouts to name Intracoastal as an additional insured was a breach of contract. Intracoastal claims as damages the expensés, including attorney’s fees, of defending the tort suit brought by Harper. We agree.

The applicable language of the contract between Roustabouts and Intracoastal is as follows:

II. INSURANCE:
Contractor agrees to carry with an insurance company or companies satisfactory to Intracoastal and authorized to do business in the State of Louisiana, insurance coverage with limits of not less than those set forth in the next succeeding paragraphs hereof, such coverage to include Contractor’s liability assumed under the indemnity and hold harmless provisions of this contract and all extensions of coverage noted:
B.(v) Endorsement naming Intracoastal as an additional insured with respect to all claims arising directly or indirectly out of any work performed by labor crews and contract labor and personnel furnished by Contractor. (Emphasis ours).

Roustabouts argues in brief that the failure to name Intracoastal as an additional insured did not damage Intracoastal because, under the above-quoted language, the insurer would have had a duty to Intra-coastal only where “the claim arises out of the work of the Contractor,” the contractor being Roustabouts. To accept Roustabouts’ construction of the contract clause would be to render that clause nugatory. The first substantive paragraph of the contract calls for Roustabouts to “furnish to Intracoastal labor crews and other contract labor and personnel..Roustabouts was obligated under the contract to furnish labor, not to perform its own work.

Roustabouts argues that it was not the true intent of the contract clause B.(v), quoted above, to cover the instant situation where an employee of Roustabouts was injured. The court is bound to give legal effect to contracts according to the true intent of the parties; however, that intent is to be determined by the words of the contract when the words are clear, explicit and lead to no absurd consequences. LSA C.C. art. 1945. Although broad, the cited contract language is not ambiguous. The clauses of agreements are to be interpreted as a whole. LSA C.C. art. 1955. Taking the contract clauses as a whole, it is obvious that one of the primary objectives of the contract was to protect Intracoastal from liability.

This claim arose directly or indirectly out of work performed by labor furnished by Roustabouts. No finding of fault on the part of anyone’s employee was required by the language of the clause. The parties appear from the record to be of equal bargaining power and the transaction was made at arm’s length. It would have been very simple for the parties to change the clause language to state, for example, that the insurance would be applicable only as to claims by third parties. They chose not to. We view this as merely one of those situations where the very thing contemplated by the contract did in fact occur.

Accordingly, for the foregoing reasons, we reverse the decision of the trial, court rejecting Intracoastal’s claim ' against Roustabouts, and we remand this matter for proceedings consistent with this opinion. All costs of this appeal are to be paid by appellee, Roustabouts, Inc.

REVERSED AND REMANDED.

      . Other clauses illustrative of this goal include an indemnity and hold harmless clause and a clause requiring Roustabouts to supply workmen’s compensation coverage.

      . And in fact, there is no finding in the record as to the causative fault of the accident.


text:
    Carlo J. CANOVA & Patrick W. Pendley v. STATE of Louisiana, et al.
    No. 83 CA 0794.
    Court of Appeal of Louisiana, First Circuit.
    June 26, 1984.

      Patrick W. Pendley, Freeman, Pendley & Canova, Plaquemine, for plaintiffs-appellants Carlo J. Canova and Patrick W. Pend-ley.
    Rose Polito Wooden, Asst. Atty. Gen., Louisiana Dept, of Justice, Baton Rouge, for defendants-appellees State of La. and the Iberville Parish Assessor’s Office.
    William C. Dupont, Dupont, Dupont & Dupont, Plaquemine, for defendants-appel-lees Joseph B. Dupont, Sr., Betty Jane Du-pont Hebert, Emma Jo Dupont Williams, Frank Charles Dupont, James' Harry Du-pont and William C. Dupont.
    Before LOTTINGER, EDWARDS and ALFORD, JJ.
   LOTTINGER, Judge.

Plaintiffs purchased property at a tax sale in 1969. In 1979, Dorothy Lozano Hubbs, et al, filed suit against plaintiffs to set aside and annul the tax sale because of a defect made by the parish assessor in the property description contained in the assessment and tax sale. In that suit, Hubbs v. Canova, No. 23,808 Eighteenth Judicial District Court, the trial court sustained the exceptions of res judicata and prescription filed by Canova and Pendley. On appeal the trial court’s judgment was reversed and it was held that the tax sale was a nullity, Hubbs v. Canova, 392 So.2d 486 (La.App. 1st Cir.1980). The Louisiana Supreme Court affirmed holding that the tax sale was a nullity. Hubbs v. Canova, 401 So.2d 962 (La.1981).

Plaintiffs then filed a third party demand against the State of Louisiana, the Iberville Parish Assessors Office, and the heirs of the assessor serving in 1968. Plaintiffs based their demand asserting damages in tort due to the negligence of the assessor in negligently describing the property subject to the tax sale. The defendants filed exceptions of no cause of action which the trial court sustained. In Hubbs v. Canova, et al., 427 So.2d 875 (La.App. 1st Cir.1982), this court affirmed the judgment of the trial court.

Plaintiffs then filed, the instant suit against the same defendants alleging the same facts as previously stated in the third party demand. Defendants filed exceptions of res judicata, prescription, and no cause of action. After a hearing on the exceptions the trial court dismissed plaintiff’s petition.

In appealing plaintiffs contend the trial court erred in sustaining the exceptions of no cause of action as to the State of Louisiana, the Iberville Parish Assessor’s Office and the heirs of the Iberville Parish Assessor.

Plaintiffs base their suit in tort alleging negligence on the part of the assessor in 1968 in the defective description of the property assessed and seek the actual value of the property. The true issue in this case is the amount that plaintiffs can recover, and from whom.

We are of the opinion that Article VII, § 25, La. Const. (1974) and Article X, § 11, La. Const. (1921) both pronounce the public policy of Louisiana that under the facts of this case all the purchaser at a tax sale can recover when the property subject of the tax sale is redeemed or the sale is declared a nullity is the tax sale price, including costs, five percent penalty, and interest at the rate of one percent per month until redeemed. This amount is paid either to the tax sale purchaser directly or to the tax collector. La.R.S. 47:2222. As such the law does not afford a remedy to the tax sale purchaser to recover the actual value of the property or to recover the prescribed amount from the State or the assessor.

Therefore, plaintiffs have failed to state a cause of action against these defendants, and the trial court judgment is affirmed at plaintiffs’ costs.

AFFIRMED.


author: PONDER, Judge.

text:
    Jessie L. HARRIS v. The BOARD OF SUPERVISORS, LOUISIANA STATE UNIVERSITY, AGRICULTURAL AND MECHANICAL COLLEGE.
    No. 83 CA 0797.
    Court of Appeal of Louisiana, First Circuit.
    June 26, 1984.
    Robert Judge Eames, Baton Rouge, for plaintiff-appellant Jessie L. Harris.
    Felix R. Weill, Baton Rouge, for defendant-appellee The Board of Supervisors, Louisiana State University, Agricultural and Mechanical College.
    Before PONDER, WATKINS and CARTER, JJ.
   PONDER, Judge.

Plaintiff-employee appealed from the judgment denying his claim for workmen’s compensation benefits plus penalties and attorney’s fees.

The issues are (1) whether appellant established a prima facie claim of total and permanent disability under La.R.S. 23:1221(2), (2) whether the “odd lot” doctrine is applicable and (3) whether appellee acted arbitrarily and capriciously when it terminated appellant’s workmen’s compensation benefits.

We affirm.

Appellant was employed at Louisiana State University (L.S.U.) in the Grounds Department. His duties consisted of mowing, weeding, trimming shrubbery and other general grounds maintenance. Appellant was spraying ant and weed poison from a tank that was fastened to his back. The tank was defective and the liquid mixture leaked onto appellant’s clothing and down his lower back and legs. An irritating rash and welts developed on appellant’s body. He was treated twice at the L.S.U. infirmary for plant dermatitis. On the second visit, appellant was advised to seek treatment from his family physician, who later referred appellant to a dermatologist. The dermatologist treated appellant forty-five times between August 22, 1978 and January 18, 1982. Appellant’s condition was diagnosed as a latent atopic dermatitis, most likely activated by the chemical contact.

L.S.U. paid weekly compensation benefits to appellant through October 23, 1978. On October 30, 1978, the dermatologist notified L.S.U.’s workmen’s compensation insurer, Underwriters Adjusting Company, that petitioner had no permanent disability and could resume work as of October 23. At this time, appellee terminated the weekly compensation benefits.

The trial court found that appellant did not have any disability that was subject to compensation.

Plaintiff’s first argument is that the trial court erred when it ruled that appellant had not established a prima facie claim of total and permanent disability under La. R.S. 23:1221(2). In workmen’s compensation cases, the plaintiff bears the burden of proving his case by a preponderance of the evidence as in other civil cases. Smith v. Louisiana Mud Company, Inc., 398 So.2d 621 (La.App. 1st Cir.1981). The plaintiff must prove that the employment caused the accident, the accident caused the injury and the injury caused the disability.

Appellant sustained a chemical burn while employed and the chemical contact activated a latent atopic dermatitis condition. A worker’s pre-existing condition does not bar his recovery under the Louisiana Workmen’s Compensation statute. Robichaux v. Terrebonne Parish School Board, 426 So.2d 241 (La.App. 1st Cir.1983). The essential question is whether appellant has proved that the injury he sustained has rendered him disabled.

Appellant testified that a rash remains on his body and that it flares up when he engages in outdoor work because of the heat, causing him to be very uncomfortable. Appellant further testified that he was capable of performing his duties at his former employment at L.S.U.; that since his employment at L.S.U., he has worked seven or eight days for the Port Commission unloading ships; that he has been helping his wife operate a tavern, with his tavern work consisting of serving patrons, mixing drinks, icing beer and mopping the floors. In addition, appellant applied for employment with Brown & Root as an operator and with Firestone as an electrician’s helper.

The expert testimony established that appellant’s condition was ninety-five percent improved and that appellant could resume his work as a laborer. The flare-ups of rash may have been caused by appellant’s failure to tise the prescribed medications.

Appellant’s next contention is that he has established that he is permanently disabled by application of the “odd lot” doctrine and that the trial court erred in ruling that the “odd-lot” doctrine applies only when the claimant has a physical impairment. The Supreme Court in Oster v. Wetzel Printing, Inc., 390 So.2d 1318 (La.1980) enunciated the burden of proof that a claimant must sustain in order to be classified in the “odd lot” category:

“[H]e must show that because of his physical impairment, mental capacity, education, training, age, availability of employment in his area, and any other relevant factor, that he ‘cannot perform the substantial and material parts of some gainful work or occupation with reasonable continuity.’ ”

We find no manifest error in the trial court’s conclusion that appellant is not disabled under La.R.S. 23:1221(2) or the “odd lot” doctrine. Although appellant testified that he was uncomfortable when he engaged in outdoor work, “[a] claimant is not disabled solely if he experiences some residual pain and discomfort upon attempting to work. In order for a claimant to be considered disabled due to pain, the pain accompanying routine physical tasks and attempts to return to work must be substantial, serious,' intense and/or severe.” Johnson v. Insurance Co. of North America, 440 So.2d 1385 (La.App. 3rd Cir.1983).

Furthermore, appellant has failed to sustain his burden of proof under the “odd lot” doctrine. Appellant has not established that his physical condition, along with his mental capacity, education, training, age or other factors, places him at a substantial disadvantage in the competitive labor market. The trial court was correct in concluding that the “odd lot” doctrine applies only when the claimant has a physical impairment. The injury or physical condition must be at least partially responsible for the limitations placed on the claimant. The court in Cottonham v. Rockwood Insurance Company of Rockwood, Pennsylvania, 403 So.2d 773, 776 (La.App. 3rd Cir.1981), writ denied 407 So.2d 732 (La.1981), stated that under the “odd lot” doctrine, “a claimant is considered totally disabled if his injury makes him an ‘odd lot’ in the labor market_” (Emphasis added.)

Appellant’s last argument is that appellee was arbitrary and capricious when it terminated appellant’s workmen’s compensation benefits and is therefore liable for penalties and attorney’s fees. The evidence presented to the trial court established that appellant has not been disabled since October 23, 1978. Compensation benefits were paid to appellant until this date. Accordingly, there is no basis for appellant’s contention that penalties and attorney’s fees are due in the present case.

For the above reasons, the decision of the trial court is affirmed and all costs are assessed against appellant.

AFFIRMED.

      . Guillory v. United States Fidelity & Guaranty Insurance Company, 420 So.2d 119 (La.1982).

      . We are applying La.R.S. 23:1221(2), as amended by Acts 1975, No. 583, the effective provision at the time of the accident.


text:
    Joseph Franklin POSTON v. Charlie Dean DAVIS, et al.
    No. 83 CA 0806.
    Court of Appeal of Louisiana, First Circuit.
    June 26, 1984.

      Robert D. Hoover, Baton Rouge, for plaintiff-appellant Joseph Franklin Poston.
    John W. Perry, Jr., Baton Rouge, for defendants-appellees Charlie Dean Davis, Buddy Eaton, Nu-Way Const. Services, Inc., and Aetna Cas. and Sur. Co..
    Before PONDER, WATKINS and CARTER, JJ.
   PONDER, Judge.

Plaintiff appeals the judgment dismissing his suit on defendants’ peremptory exception of no cause of action.

The only issue is whether plaintiff’s petition states a cause of action in tort under the intentional act exception to the Worker’s Compensation Act tort immunity provided by LSA-R.S. 23:1032.

We reverse and remand.

Plaintiff filed suit for damages against his employer, Nu-Way Construction Services, Inc. (Nu-Way); co-employees Charlie Dean Davis and Buddy Eaton; and Nu-Way’s liability insurer, Aetna Casualty and Surety Company. The key paragraphs in plaintiff’s original petition are as follows:

“4.
On the date aforementioned, your petitioner was in the process of bolting angle/rafters when his foot slipped while he was working causing him to fall from the rafters approximately 15 feet from the ground onto his head striking the concrete below.
5.
At the time of the alleged accident, the defendants, Charlie Dean Davis, Buddy Eaton and Nu-Way Construction Services, Inc. knew that the safety belts were absolutely essential to be distributed to petitioner and other employees working at this location, to avoid the exact type of injury to the plaintiff. Despite their knowledge, these defendants insisted that the plaintiffs and others continue to work at heights above the ground without safety belts. Buddy Eaton, Charlie Dean Davis and Nu-Way Construction Services, Inc. believed that their refusal to provide safety belts to their employees, such as your petitioner, would certainly result or were substantially certain to result in the particular type of injury which was suffered by your petitioner.’’ (Emphasis added.)

Defendants filed an exception of no cause of action on the day of hearing; plaintiff filed an amending and supplemental petition, the key paragraph of which is as follows:

“5A.
Some time prior to the accident involving Mr. Poston on September 1, 1981, Charlie Dean Davis and Buddy Eaton and other employees of Nu-Way Construction Services, Inc., discussed the fact that safety belts were absolutely essential to be distributed to your petitioner and other employees while they worked at heights on the location where the accident occurred. On the day prior to the accident, Charlie Dean Davis again discussed the absolute necessity for safety belts being distributed to your petitioner and the other employees while working at heights with Buddy Eaton. The safety belts had been ordered for this particular job, but had not been received on the job site. Buddy Eaton and Charlie Dean Davis insisted that your petitioner and the other employees on the job work at heights erecting steel without safety belts even though they had had numerous discussions regarding the absolute necessity for the safety belts. There were other safety belts available to Nu-Way Construction Services, Inc. and Charlie Dean Davis and Buddy Eaton to be obtained from other jobs being done by Nu-Way Construction Services, Inc. at that time. In spite of this fact, no safety belts were made available to your petitioner or any other employees working at heights at the time of Mr. Poston’s accident. The day following the accident safety belts were obtained from another job of Nu-Way Construction Services, Inc. and provided to the remaining employees working at heights at this job location. As a result of their discussions and as a result of the fact that the defendants were in a hurry to complete the job and insisted that the plaintiff and others continué to work at heights above the ground without safety belts, Buddy Eaton, Charlie Dean Davis and Nu-Way Construction Services, Inc. knew and/or believed that their refusal to provide safety belts to their employees, such as your petitioner, would certainly result or were substantially certain to result in the particular type of accident and injury which was suffered by your petitioner. Charlie Dean Davis and Buddy Eaton were employees of Nu-Way Construction Services, Inc. at the time of the accident and were acting within the course and scope of their employment as such. Thus Nu-Way Construction Services, Inc. is vicariously liable for the aforementioned intentional acts of Buddy Eaton and Charlie Dean Davis in addition to the intentional acts alleged of Nu-Way Construction Services, Inc.” (Emphasis added.)

Plaintiff argues that both his original and amending and supplemental petitions state a cause of action: to-wit, that defendants Eaton and Davis were guilty of an “intentional act” as defined in LSA-R.S. 23:1032, for which Nu-Way is vicariously liable.

The exception of no cause of action raises the question of whether the law affords any remedy to the plaintiff under the allegations of the petition. Johnson v. Edmonston, 383 So.2d 1277 (La.App. 1st Cir.1980). In considering the exception, it must be decided upon the face of plaintiffs petition alone, and all well-pleaded allegations of fact contained therein must be accepted as true. Mott v. River Parish Maintenance, Inc., 432 So.2d 827 (La.1983). If the petition states a cause of action as to any ground or portion of the demand, the exception must be overruled. Pence v. Ketchem, 326 So.2d 831 (La.1976).

The Louisiana Supreme Court in Bazley v. Tortorich, 397 So.2d 475 (La.1981) gave definition to the term ‘intentional act’ in the context of the above mentioned statute:

“The meaning of ‘intent’ is that the person who acts either (1) consciously desires the physical result of his act, whatever the likelihood of that result happening from his conduct; or (2) knows that that result is substantially certain to follow from his conduct, whatever his desire may be as to that result.” (P 481)

A recent Louisiana Supreme Court decision, Mayer v. Valentine Sugars, Inc., 444 So.2d 618 (La.1984), is determinative of this case. Therein the court concluded that LSA-C.C.P. art. 856 is controlling and a plaintiff employee may plead the intent element of his intentional tort cause of action generally and without particularity.

In the instant case, plaintiff alleges that the type of injury he suffered was believed or known by defendants Nu-Way, Eaton and Davis to be substantially certain to result. This allegation is sufficient to state a cause of action under the “intentional act” exception of LSA-R.S. 23:1032.

Defendants argue that plaintiff’s amending and supplemental petition should not be considered on appeal as the trial court never signed an order permitting its filing, citing LSA-C.C.P. art. 1151.

The record does not disclose whether the trial judge considered plaintiffs amending and supplemental petition, filed the day of trial of the exception. However, we need not discuss this issue as the language of plaintiffs original petition states a cause of action.

For the foregoing reasons, we reverse the judgment of the trial court" and remand for proceedings consistent with this opinion. Costs are to be borne by defendants.

REVERSED AND REMANDED.

      . LSA-R.S. 23:1032 provides, in pertinent part:
      ******
      Nothing in this Chapter shall affect the liability of the employer, or any officer, director, stockholder, partner or employee of such employer or principal to a fine or penalty under any other statute or the liability, civil or criminal, resulting from an intentional act.

      . We point out, however, that under LSA-C.C.P. art. 934, when the grounds of the objection pleaded by peremptory exception may be removed by amendment of the petition, the judgment sustaining the exception shall order such amendment within the delay allowed by the court.

      . LSA-C.C.P. art. 856, in pertinent part, provides:
      "... Malice, intent, knowledge, and other condition of mind of a person may be alleged generally.”

      . LSA-C.C.P. art. 1151 provides:
      "A plaintiff may amend his petition without leave of court at any time before the answer thereto is served. He may be ordered to amend his petition under Articles 932 through 934. A defendant may amend his answer once without leave of court at any time within ten days after it has been served. Otherwise, the petition and answer may be amended only by leave of court or by written consent of the adverse party.
      A defendant shall plead in response to an amended petition within the time remaining for pleading to the original pleading or within ten days after service of the amended petition, whichever period is longer, unless the time is extended under Article 1001.”


text:
    Ralph SHOOK v. CAMBRIDGE MUTUAL FIRE INSURANCE COMPANY.
    No. 83 CA 0809.
    Court of Appeal of Louisiana, First Circuit.
    June 26, 1984.

      Arthur Cobb, Baton Rouge, for plaintiff-appellant Ralph Shook.
    W. Luther Wilson, Baton Rouge, for defendant-appellee Cambridge Mutual Fire Insurance Co.
    Before PONDER, WATKINS and CARTER, JJ.
   WATKINS, Judge.

Ralph Shook received severe injuries while in the act of cutting up a tree he had felled for his Masonic Lodge brother, Carl Broussard. Shook brought the present suit against Broussard’s homeowner’s insurer, Cambridge Mutual Fire Insurance Company, to recover for those injuries. The trial court after trial on the merits rendered judgment for Cambridge Mutual. We affirm.

Shook felled a live oak tree for Brous-sard. The tree was on Broussard’s property, and fell upon Broussard’s property after it was downed. After the. tree was felled the trunk was held some three or four feet above the ground by the branches, which supported the tree trunk. Shook with the assistance of his future son-in-law and one Laiche, and some assistance from Broussard, set about cutting off the branches from the trunk. While Shook was cutting a branch, which it developed supported the trunk, the tree shifted, and Shook was thrown under the trunk by a branch immediately behind Shook’s neck. Shook fell in a ball and received many broken ribs, two broken vertebrae, and a broken heel bone.

Shook seeks to hold Cambridge, Broussard’s homeowner’s insurer, liable on a theory of strict liability under LSA-C.C. art. 2317 (see also Loescher v. Parr, 324 So.2d 441 (La.1976)) or under absolute liability from the defendant’s having engaged in an ultrahazardous activity under the reasoning in Langlois v. Allied Chemical Cory., 258 La. 1067, 249 So.2d 133 (1971). However, as is pointed out in Kent v. Gulf States Utilities Co., 418 So.2d 493 (La.1982), strict liability merely eliminates the requirement that the plaintiff show that defendant knew that an object under his custody was defective. Knowledge is presumed. It still must be proven, however, that the object was defective. The tree was not defective. It was stipulated at the beginning of trial on the merits that it was not rotted or otherwise structurally defective. Thus, the only defect in the tree that could exist was the position in which the tree came to rest after it was felled. However, it was plaintiff, Shook, who felled the tree, and allowed it to come to rest as it did. Victim fault is a defense in strict liability eases. Loescher v. Parr, supra. As Shook was responsible for his own injuries, he cannot recover under a theory of strict liability. Furthermore, Shook cut a supporting branch without taking adequate safeguards, as he himself admitted at trial. Had he seen that he was likely to be thrown under the tree upon cutting the branch supporting the trunk, he admitted he would not have cut the supporting branch. The fault is solely his own, rather than that of Broussard.

As to the ultrahazardous activity theory advanced by plaintiff, that theory applies' when the defendant is engaged in an ultrahazardous activity. See Kent, supra. Here, if the activity was ultrahazardous, it was plaintiff, not defendant, who was engaged in an ultrahazardous activity. Thus, Shook cannot recover.

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

AFFIRMED.


text:
    BUDGET FINANCE OF BATON ROUGE, INC. v. Marion Huge LEWIS.
    No. 83 CA 0811.
    Court of Appeal of Louisiana, First Circuit.
    June 26, 1984.

      William J. Staser, Baton Rouge, for plaintiff-appellee Budget Finance of Baton Rouge, Inc.
    Marion Weimer, Leo J. Berggreen, Baton Rouge, for defendant-appellant Marion Huge Lewis.
    Before PONDER, WATKINS and CARTER, JJ.
   CARTER, Judge:

This is a suit on three promissory notes in which a summary judgment was granted.

Plaintiff, Budget Finance of Baton Rouge, Inc. (Budget Finance), instituted this proceeding against Marion Huge Lewis to collect monies due under three promissory notes. Lewis answered the petition, denying each of plaintiff’s allegations. Budget Finance then moved for summary judgment, and Lewis filed an exception of no right of action.

The trial court overruled the exception of no right of action and denied the motion for summary judgment on the grounds that Budget Finance had not submitted affidavits verifying the amount of the indebtedness.

Budget Finance subsequently reurged its motion for summary judgment, submitting three affidavits in support thereof. Lewis opposed the motion for summary judgment and reurged his exception of no right of action, contending that the affidavits submitted by plaintiff established that Budget Finance was not the holder of the three notes sued on.

The trial judge refused to reconsider the exception and granted plaintiffs motion for summary judgment. Lewis appeals.

Lewis assigns the following specifications of error:

(1) The trial court erred in overruling Lewis’s exception of no right of action; and
(2) The trial court erred in granting plaintiff’s motion for summary judgment.

EXCEPTION OF NO RIGHT OF ACTION

Lewis maintains that the trial judge improperly overruled his exception of no right of action. Lewis contends that the affidavits accompanying plaintiffs motion for summary judgment reflect that H.R. Gibson, Jr., manager of Budget Finance, is the holder and owner of the notes sued upon. Lewis, therefore, concludes that Budget Finance, plaintiff in the instant suit, has no right to bring this action.

The exception of no right of action is designed to question the right or interest of the plaintiff in instituting the suit. Succession of Vidrine, 377 So.2d 564 (La.App. 3rd Cir.1979), appeal after remand Fontenot v. Estate of Vidrine, 401 So.2d 584 (La.App. 3rd Cir:1981); Gaudet v. Bd. of C. for Pontchartrain Levee, 339 So.2d 931 (La.App. 4th Cir.1976).

A thorough review of the record convinces this court that the trial court correctly determined that Budget Finance is the proper plaintiff to institute this suit. The three original promissory notes were attached to the petition as “Plaintiff’s In Globo Exhibit 1” and clearly indicate that Lewis borrowed funds from Budget Finance on three separate occasions. Furthermore, Budget Finance’s answers to both the interrogatories and request for admissions clearly indicate that it was the true owner and holder of the notes sued on. Although the affidavits which accompanied the motion for summary judgment are poorly phrased, the answers to interrogato-nes and answers to request for admissions clearly support the conclusion that Budget Finance is the proper party plaintiff and has a right to institute these proceedings to collect on the notes.

MOTION FOR SUMMARY JUDGMENT

Lewis contends that summary judgment was improperly granted by the trial court. Lewis maintains that ownership of the note, which is a material fact, is an unresolved issue.

LSA-C.C.P. art. 966 provides:

“A. The plaintiff or defendant in the principal or any incidental action, with or without supporting affidavits, may move for a summary judgment in his favor for all or part of the relief for which he has prayed. The plaintiff’s motion may be made at.any time after the answer has been filed. The defendant’s motion may be made at any time.
B. The motion for summary judgment shall be served at least ten days before the time specified for the hearing. The adverse party may serve opposing affidavits prior to the date of the hearing. 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.
C. A summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages.”

Summary judgment may not be rendered unless the pleadings, depositions, affidavits, and other like evidence show that there is no genuine issue as to material fact and that mover is entitled to judgment as a matter of law. Ray’s Appliance & Air Conditioning v. Heard, 343 So.2d 435 (La.App. 3rd Cir.1977). Any doubt is to be resolved against the granting of summary judgment and in favor of trial on the merits to resolve any disputed facts. Chaisson v. Domingue, 372 So.2d 1225 (La.1979).

In reviewing the record, we find that the pleadings, affidavits, answers to request for admissions, and answers to interrogatories clearly show that there is no unresolved issue as to material fact concerning ownership of the notes and that Budget Finance is entitled to judgment as a matter of law.

For the above reasons, this assignment lacks merit.

For the above reasons, the judgment of the trial court overruling Lewis’s exception of no right of action and granting Budget Finance’s motion for summary judgment is affirmed at defendant-appellant's costs.

AFFIRMED.

      . The affidavits provide, in pertinent part:
      “BEFORE ME, the undersigned Notary Public, duly commissioned and qualified in and for the Parish and State aforesaid, personally came and appeared H.R. GIBSON, JR., Manager of BUDGET FINANCE COMPANY, who after being duly sworn, did depose and say:
      That HE is the holder and owner for valuable consideration of the note herein sued upon_”

      . Although the affidavit uses the word "he" to designate the owner and holder of the notes, the reference clearly refers to Budget Finance and not to its manager, H.R. Gibson, Jr.


text:
    Robert DAVIS, Jr. v. Juliette Y. ANDERSON.
    No. 83 CA 0812.
    Court of Appeal of Louisiana, First Circuit.
    June 26, 1984.

      W. Steven Mannear, Baton Rouge, for plaintiff-appellee Robert Davis, Jr.
    Walter C. Dumas, Baton Rouge, for defendant-appellant Juliette Y. Anderson.
    Before PONDER, WATKINS and CARTER, JJ.
   PONDER, Judge.

Defendant appealed the trial court’s judgment holding her liable for the medical expenses and pain and suffering that plaintiff sustained from a gun shot wound.

The issues are: (1) whether the trial court erred in finding that appellant was negligent and (2) whether the trial court erred in awarding appellee damages.

We affirm.

After an argument between plaintiff and defendant while driving, defendant upon arrival entered her house, obtained a pistol, came outside and shot plaintiff in the back. Defendant then left the scene of the incident.

Exploratory surgery was performed on plaintiff and the injuries that were discovered were surgically corrected. Plaintiff stayed in the hospital for eight days and the attending physician testified that plaintiff had fully recovered about forty days later. The trial court found defendant liable for medical expenses of $5059.13 and for pain and suffering in the amount of $7500.00.

Appellant’s first argument is that the trial court erred in finding that appellant was negligent. The court’s reasoning was as follows:

“She said that she did not intend to hit him, or was not shooting at him, but even if I take it to be true that there was no intentional tort, there is no question but there was negligence....”

The court found that there was no evidence to support a theory of self-defense. We have reviewed the record and agree with the findings of the trial court.

Appellant next complains that the trial court erred in awarding appellee damages.

Appellant first claims that she has no income, property or other means to pay a $12,559.13 judgment. She argues that her financial inability should have been taken into consideration in assessing damages. However, we cannot address this claim because appellant failed to plead or to introduce evidence of her financial inability at the trial level. An appellate court may not review evidence that is not in the record, nor can it receive any evidence to supplement the record. National American Bank of New Orleans v. Purvis, 407 So.2d 754 (La.App. 1st Cir. 1981).

Secondly, appellant argues that the level of the $7,500.00 award for pain and suffering is excessive. The gunshot wound necessitated major surgery, eight days of hospitalization and a forty day rehabilitation period. The $7,500.00 award does not constitute an abuse of the great discretion accorded the trier of fact in the award of general damages and, accordingly, it will not be disturbed upon appellate review. La.C.C. art. 1934; Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976).

For the above reasons, the decision of the trial court is affirmed at appellant’s costs.

AFFIRMED.


author: EDWARDS, Judge.

text:
    Kim Diane TALBERT et al. v. Ora Lee (Lea) SCOTT, et al.
    No. 83-CA-0819.
    Court of Appeal of Louisiana, First Circuit.
    June 26, 1984.
    Raymond C. Vinet, Baton Rouge, for plaintiffs-appellants.
    John G. Morgan, Baton Rouge, for defendants-appellees.
    Before LOTTINGER, EDWARDS and ALFORD, JJ.
   EDWARDS, Judge.

The sole issue in this case is whether the plaintiffs’ filiation action under LSA-C.C. art. 209, filed within the second grace period provided in Act 720 of 1981, is timely or not.

Charles Donahue died intestate on April 19, 1982. Five months later, on September 10, 1982, Denise Talbert, then twenty-one years old, and her younger sister Kim, who turned nineteen on June 13, 1982, filed suit against Ora'Lea Scott, Charles’ mother and sole legitimate heir, to establish their filiation to Charles. Mrs. Scott filed an exception of prescription, which the trial judge sustained, ruling that under the provisions of Act 549 of 1980, plaintiffs’ suit had prescribed. From this judgment, plaintiffs appeal.

In 1980, in the wake of Succession of Brown, 388 So.2d 1151 (La.1980), the Legislature passed Act 549, amending LSA-C.C. arts. 208 and 209, to provide among other things a time limitation in which to bring filiation actions — either within six months after the death of the alleged parent or within nineteen years of the child’s birth, “whichever occurs first.” That act also provided a one-year grace period from July 23, 1980, the Act’s effective date, for those illegitimates nineteen years or older, whose actions would otherwise be barred under the Act, to bring a filiation proceeding or “be forever barred.”

Because of feared constitutional deficiencies in Act 549, the Legislature passed Act 720 in 1981, re-amending those statutes to require illegitimates to bring their filiation actions either within one year of the alleged parent’s death or within nineteen years of the child’s birth, “whichever first occurs.” That act provided a second one-year grace period from September 11,1981, the Act’s effective date, to “any person against whom the time period provided in this Act would otherwise have accrued.”

In the present case, were it not for Act 720, Denise’s action would clearly have prescribed. Denise turned nineteen on June 24, 1980, one month before the effective date of Act 549. Under that Act, therefore, she had until July 24, 1981, to sue, or “be forever barred.” However, this court squarely held in Succession of Hawkins, 429 So.2d 194 (La.App. 1st Cir.1983), cert. denied, 434 So.2d 1098 (La.1983), that the second grace period provided in Act 720 replaced the first one provided in 549 and gave unacknowledged illegitimates an additional year (until September 12, 1982) to file filiation actions. See also Succession of Clivens, 426 So.2d 585, 598 (La.1983) (on rehearing); Succession of Theriot, 428 So.2d 1017 (La.App. 1st Cir.1983).

Under Succession of Hawkins, therefore, Denise’s suit, filed on September 10, 1982, within the second grace period provided in Act 720, is timely. The trial court’s judgment maintaining defendants’ exception and dismissing Denise’s action is accordingly reversed.

Kim’s suit is more troublesome. Kim turned nineteen on June 13, 1982, a little less than two months after her alleged father’s death on April 19, 1982. Both events, her nineteenth birthday and Donahue’s death, occurred within the grace period of Act 720.

Defendant argues that regardless of the grace period in Act 720, Kim’s action prescribed on her nineteenth birthday. She argues that the clause “whichever first occurs” should be interpreted to mean “whichever first accrues.” Thus, if the parent dies before the child’s eighteenth birthday, the child has one year from the date of the parent’s death to file suit. If' the parent dies after the child’s eighteenth birthday, the child must nevertheless bring his action before his nineteenth birthday. That is, if the parent dies at any time during the child’s nineteenth year, the child does not by virtue of that event get any additional time beyond his nineteenth birthday to bring a filiation proceeding.

While defendant’s argument is logical and persuasive, we think it would be manifestly unfair under the circumstances of this case to allow Denise to pursue her action, but not Kim, when both filed their suits on the same day, well within the year of their alleged parent’s death and within the grace period provided by Act 720.

The time limits provided in Civil Code Article 209 apply only to unacknowledged illegitimates, a very limited class of persons whose rights to share equally with their legitimate siblings in the succession of their parents were only recently recognized in Succession of Brown, decided on September 3, 1980, and were only more recently clarified to the reasonable satisfaction of the bench and the bar in Succession of Clivens, decided January 10, 1983. Allowing Kira to pursue her action, filed during the uneasy lurch between those two opinions within the grace period of Act 720 even though after her nineteenth birthday, will not add greatly to the confusion in land titles already engendered by the limited retroactive application of Succession of Brown.

Accordingly, Kim’s suit, filed on September 10, 1982, is timely.

For the foregoing reasons, the judgment of the trial court is reversed. The case is remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

       We note in passing, without specifically ruling on the point, that the time period in question is more properly preemptive than prescriptive. See LSA-C.C. art. 3458 et seq.; Spaht, Establishing the Filiation of Illegitimate Children, 42 La.Law Rev. 403, 408, n. 33 (1982).