author: PONDER, Judge.

text:
    Dr. Robert J. CARTER v. FINANCIAL ADVISOR & CONSULTANT, INC., et al.
    No. 83 CA 0247.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 22, 1983.

      Guy A. Módica, Sr., Baton Rouge, for plaintiff - defendant -in - reconvention - appellant Dr. Robert J. Carter.
    Sumpter Davis, III, Baton Rouge, for defendant-plaintiff-in-reconvention-appellee Financial Advisor & Consultants, Inc. and Jeffrey C. Thomas.
    Before PONDER, WATKINS and CARTER, JJ.
   PONDER, Judge.

Plaintiff appealed from the trial court judgment awarding him the return of $2,277.20 from a $15,000.00 fee paid on a contract for financial planning and implementation services.

The issues on appeal are the contract’s validity, interpretation and breach, the reasonableness of charges under the contract and the weight to be given to expert testimony.

Plaintiff, Dr. Robert J. Carter, paid defendant, Financial Advisor and Consultant, Inc. (FACI) $15,000.00 in advance for financial planning, advice and implementation. Payment was made after FACI prepared a $750.00 feasibility study to determine if plaintiff was a candidate for such a program. The contract, prepared by FACI and dated September 1, 1979, was signed by both parties.

In January of 1981, Carter terminated the contract with FACI and later filed suit seeking the return of the $15,000.00 fee and a fee of $1,000.00 for each referral he made to FACI. FACI reconvened for payment of services rendered under the contract and for damages due for defamation. After trial on the merits, the trial court rendered judgment in favor of plaintiff for $2,277.20, representing a $1,000.00 referral fee and $1,277.20 of the unearned portion of the $15,000.00 fee.

Plaintiff appealed and FACI answered alleging that plaintiffs appeal was frivolous and asking for attorney’s fees.

Plaintiff first argues that the trial court should have rescinded the written contract as there was no agreement on the substantial elements and there was a misunderstanding as to the contract’s nature and extent.

Both parties must agree to the substantial elements of a contract in order to have a binding obligation. La.C.C. arts. 1779(2), 1798. Sander’s Camper Village, Inc. v. Coleman Oldsmobile, Inc., 418 So.2d 679 (La.App. 1st Cir.), writ denied, 422 So.2d 163 (La.1982). The nature of the contract characterizes the obligation which it creates and an error as to the nature will render the contract void. La.C.C. art. 1841.

The contract stated and the parties understood that a fee of $15,000.00 would cover development and implementation of a financial plan, including accountants’ and attorneys’ fees. Both parties understood that the term would probably be four to five years since the contract stated that termination would occur at the conclusion of the program’s design and implementation.

The contract also explained the procedure for termination. While it did not include a detailed list of what plans would be implemented, the contract did include a breakdown of what would be included in the case study. When plaintiff received the initial feasibility study, he was given an estimated cost breakdown for the case study, preparation and implementation.

We find a definite agreement as to all substantial elements of the contract and no misunderstanding as to the nature of the contract. We are not convinced by plaintiffs argument that he would not have entered into the contract had he known he would not receive all services listed on the fee schedule. The contract clearly stated plaintiff was responsible for the final decision of whether to implement or disregard recommendations. Plaintiff admitted his failure to call and question or order implementation.

Plaintiff argues that the trial court, erred in not construing vague portions of the agreement against FACI, its preparer. We disagree.

The court will construe an ambiguous clause against its preparer only if it cannot ascertain the common intent of the parties. Ericksen, Krentel and Barre v. Pizzolato Ford-Lincoln-Mercury, Inc., 432 So.2d 386 (La.App. 1st Cir.1983). The evidence and the contract made clear the common intent.

The fact that the contract used the words “estimated, reasonable” to describe the costs incurred does not automatically render the phrase ambiguous. Where a fixed price is lacking, the price is determined as that which is reasonable in light of community custom and equity between the parties. Grimaldi Plumbing & Heating Company, Inc. v. Doucette, 414 So.2d 832 (La.App. 4th Cir.1982).

We also disagree with plaintiffs argument that the trial court erred in not finding that FACI breached the agreement by its failure to provide all the services agreed on.

Plaintiff received the two case studies prepared by the defendant in May of 1980 and referred a friend for the services in August of 1980. At that time he was evidently satisfied with FACI’s performance. He terminated the contract after approximately one and one-half years at which time seven of the twenty recommendations contained in the initial feasibility study had been implemented. Defendant’s president testified that some of the recommendations were not completed because plaintiff did not request them or did not have adequate funds.

Although all listed services were not completed, we find no breach due to plaintiffs failure to pursue implementation.

Plaintiff next argues that the trial court erred in not finding that most of the .time charged by defendant was excessive. As to termination, the contract stated:

I understand that I may at any time by written request terminate your services pursuant to this agreement as of the time of receipt of such request by you. I further understand that if I so terminate your services, you shall return within one month of such termination all fees which I have paid you less the sum of (1) the reasonable costs incurred by you, (2) the reasonable charges of accountants (ranging between $25 and $30 per hour) and attorneys (ranging between $60 and $80 per hour) to be contracted as consultants in connection with this program, and (3) the estimated hours spent by Jeffrey C. Thomas in connection with the design and implementation of this program times $50 per hour.

The trial judge found that the total costs incurred by FACI were $13,722.80. This figure included attorneys’ fees, accountants’ fees, typing costs, bookkeeping charges, consulting fees and payment for 211 hours and 43 minutes of FACI’s president’s work at $50.00 per hour. After a thorough review of all the evidence, we find a reasonable factual basis for the court’s findings and no manifest error. Although there were some conflicts in testimony, we do not find that the trial court’s determination of credibility was clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

Plaintiffs last argument states that the trial court erred in not relying upon an expert’s testimony as to the reasonable amount of time necessary to perform the services in question.

Defendant’s expert in financial planning testified that a case study of the scope prepared by defendant would take 80 to 100 man hours not including accounting or implementation. However, the trial court, though concerned with the possibility of excessiveness of hours, concluded that the two studies and partial implementation resulted in the expenditure of many more hours.

The trier of fact is not bound by expert testimony, but evidence of an expert witness is received in the same manner as evidence of non-experts and is to be weighed by the trier of fact the same as any other evidence. Holmes v. Southeastern Fidelity Insurance Company, 422 So.2d 1200 (La.App. 1st Cir.1982), writ denied, 429 So.2d 133 (La.1983). We find no manifest error.

FACI’s request for attorney's fees on the basis of plaintiff’s frivolous appeal is also without merit. There is no evidence of record that the appeal was taken solely for the purpose of delay or that counsel for plaintiff was not serious in view of the law he advocated. Midco Louisiana Co. v. Aquatic Equipment & Engineering, Inc., 423 So.2d 10 (La.App. 1st Cir.1982).

For these reasons, the judgment of the trial court is affirmed with costs assessed to the plaintiff.

AFFIRMED.

      . The suit against Jeff Thomas, the president and sole owner of FACI was dismissed.

      . The contract stated in reference to the fee:
      A fee in the amount set forth in Exhibit A hereto shall be payable in advance for such service, which fee constitutes (1) the estimated reasonable costs to be incurred, (2) the estimated reasonable charges of accountants (ranging between $25 and $30 per hour) and attorneys (ranging between $60 and $80 per hour) to be contracted as consultants in connection with this program, and (3) the estimated hours spent by Jeffrey C. Thomas in connection with the design and implementation of this program times $50 per hour. If at the completion of design and implementation of such program the actual sum of such costs and charges is less than the estimated fee paid in advance, the difference shall be refunded to me. You shall absorb all costs and charges, if any, in excess of the amount set forth in Exhibit A hereto.

      . The breakdown of the case study showed the following:
      PART CASE STUDY
      I. Present Assets, Values and Beneficiary of:
      Joint Property
      Life Insurance
      Employee Benefit Plans
      Business Interests
      General Probatable Assets
      II. The mathematics of Estate Analysis Summary of Estate Clearance Costs
      PART CASE STUDY
      Schedule I, Estate Clearance Costs
      Schedule II, Marital Deduction Data
      Schedule III, Liquidity Calculations
      Schedule IV, Family Income
      Plan of Distribution
      III. Analysis & Recommendations
      Summary of Problem Areas
      Estate Clearance Costs
      Lifetime Planning
      Retirement Income
      Disability Protection
      Suggested Plan of Action
      Summation
      IV. General Estate Planning Comments

      .The estimated cost breakdown stated:
      Total fee for case study, case preparation, Phase II, implementation, and product implementation are listed below:
      Retirement $1,200.00
      Business Entity 4,200.00
      Tax Shelters 1,200.00
      Group Disability Insurance 1,200.00
      Estate, Banking, Accounts Receivable 1,200.00
      Living Estate 1,200.00
      Personal Life Insurance 800.00
      Estate Shrinkage and Liquidity 750.00
      Estate Distribution and Management 750.00
      Cash Flow Analysis 1,200.00
      Employees Compensation Plan 1,300.00
      $15,000.00

      . The recommendations completed were incorporation of the dental practice, payment of vacations out of earnings rather than capital, enactment of a medical reimbursement plan, restructuring of expense outlay so that the corporate structure would adhere to IRS rules, review of a major disability group plan to bring it to a coordinated benefit level with reimbursement plan, and the examination of office procedures, cash flow, bad debts, collections, etc. and renewal of the financial plan which were ongoing procedures.


source: Caselaw Access Project

author: EDWARDS, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Roger THOMPSON.
    No. 83-KA-0521.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 22, 1983.
    Ossie B. Brown, Dist. Atty. by Robert H. Hester and Louis Daniel Asst. Dist. Attys., Baton Rouge, for plaintiff-appellee.
    Alex Wall, Jr., Baton Rouge, for defendant-appellant.
    Before LOTTINGER, EDWARDS and ALFORD, JJ.
   EDWARDS, Judge.

Defendant, Roger Thompson, was charged by bill of information with simple burglary in violation of R.S. 14:62. In return for the nolle prosequi of three other counts of simple burglary of an inhabited dwelling, three counts of felony theft, and one count of misdemeanor theft, defendant entered a guilty plea to the instant charge. The trial court sentenced defendant to a term of six years imprisonment at hard labor. Defendant now appeals, urging only that the sentence is excessive.

Defendant argues that the trial court erred by not placing sufficient weight on several mitigating factors, specifically his good juvenile record, his first felony status, and his employment record. While the trial court did enunciate these factors for consideration in sentencing defendant, it also noticed several other factors: other criminal activities of defendant which were nolle prossed; failure to retrieve some $6,700.00 worth of jewelry from the burglaries; and the fact that, after pleading guilty to the instant offense, another bill of information for a burglary committed only five days thereafter was brought against defendant. The State also nolle prossed this bill on defendant’s request but asked that the trial court consider it an imposing sentence. The trial court stated that it deemed a period of incarceration necessary in this case.

Under R.S. 14:62, simple burglary is punishable by a $2,000.00 fine, imprisonment with or without hard labor for not more than 12 years, or both. We cannot say that the trial court’s sentence of six years’ imprisonment at hard labor under the circumstances of this case constitutes an abuse of discretion. State v. Lewis, 434 So.2d 1261 (La.App. 1st Cir.1983).

Accordingly, for the above-expressed reasons, the sentence of the defendant is affirmed.

AFFIRMED.

      When a defendant pleads guilty pursuant to a plea bargain which does not specify a particular sentence, the sentence is reviewable on appeal. State v. Lewis, 434 So.2d 1261 (La.App. 1st Cir.1983).


author: WATKINS, Judge.

text:
    John B. KINCAIDE v. Marie Nettles KINCAIDE.
    No. 83 CA 0554.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 22, 1983.

      Stuart B. Thomson, Baton Rouge, for plaintiff-appellant John B. Kincaide.
    Donna Lee, Baton Rouge, for defendant-appellee Marie Nettles Kincaide.
    Before PONDER, WATKINS and CARTER, JJ.
   WATKINS, Judge.

Marie Nettles Kincaide, divorced, former wife of John B. Kincaide, brought the present proceeding against Mr. Kincaide to obtain arrearages in child support payments and other relief. Mr. Kincaide reconvened, seeking a decree of joint custody of their minor child, Thomas Brian Kin-caide, presently in the custody of Mrs. Kin-caide, and a reduction in child support. The trial court decided solely the issues presented on the reconventional demand filed by Mr. Kincaide, and denied joint custody and refused to reduce child support. Mr. Kincaide appealed. We affirm.

The trial court prepared thorough and legally correct written reasons for judgment, which we annex to this opinion, with the following added observations.

LSA-C.C. art. 157 provides that in cases of separation or divorce, permanent custody of the child shall be granted to the parents in accordance with art. 146. Article 146 C(2) establishes a rebuttal presumption that joint custody is in the best interest of the child, unless the court finds joint custody would not be in the best interest of the child.

Here, the trial court found, as do we, that because of irreconcilable differences between the parents concerning the child’s attending a private religious school and other matters, joint custody would not be in the best interest of the child. The determinations of the trial court with regard to the child’s best interest and custody of the child should not be overturned unless there is a clear abuse of discretion. Bagents v. Bagents, 419 So.2d 460 (La. 1982); Bordelon v. Bordelon, 390 So.2d 1325 (La.1980). Here, the parents were not able to agree upon a plan for joint custody. The trial court is expected to require the parents to submit a plan of joint custody “unless waived by the court for good cause ....” LSA-C.C. art. 146 A(l). In the present case, in view of the obvious inability of the parents to agree upon any matter of importance with respect to the child; the fact that the differences of the parents had had a traumatic effect upon the child, and the clear showing that joint custody would reopen old wounds and not be in the child’s best interest, the trial court properly waived the requirement that a plan of joint custody be drawn or adopted.

Similarly, a judgment with regard to child support should not be overturned unless there is a clear abuse of discretion on the part of the trial court. Durbin v. Durbin, 424 So.2d 1130 (La.App. 1st Cir. 1982). Here, we find no abuse of discretion with regard to the refusal of the trial court to reduce child support.

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

AFFIRMED.

APPENDIX

JOHN B. KINCAIDE CIVIL NUMBER 54,913, DIVISION ‘B’

VS. THE FAMILY COURT

PARISH OF EAST BATON ROUGE

MARIE NETTLES KINCAIDE STATE OF LOUISIANA

WRITTEN REASONS FOR JUDGMENT

This is a proceeding in which the noncustodial father is seeking a decree of joint custody under the provisions of Article 157 of the Civil Code, and by reference Article 146. The father is seeking, also, a reduction in child support. The court will first consider the issue of joint custody, and then the issue of support.

The court, of course, believes that both parents should be entitled to reasonable access to the child of the former marriage, and that Mr. Kincaide’s desire to have an active interest in the child’s education and welfare is commendable. The question before the court today; however, is whether or not the presumption has been overcome that joint custody would be in the best interest of the child. The court is of the opinion that insofar as this particular case is concerned, and at this particular time, the presumption in favor of joint custody has been successfully rebutted. There are a number of reasons for that conclusion.

This child has apparently gone through a very traumatic experience in connection with the separation of his parents. It affected his grades, conduct and his schooling. He is now just beginning to reach a stable frame of mind insofar as the separation of his parents is concerned. He is now back in his former family home where he resided before the separation of the parties, in his old neighborhood, with his old friends, and for the first time in several years, he is beginning to show some improvement in his school work. The court is of the opinion that a joint custody award would disrupt the degree of stability which he now has.

Furthermore, joint custody anticipates parties who are able to agree upon certain basic issues concerning the education and other aspects of the rearing of the child. The court’s impression is that, at least as to certain issues, Mr. Kincaide would be very intractable; that it would be his way or no way. The record indicates that Mrs. Kin-caide may have a similar attitude, and, if so, that makes it even less likely that there could ever be any workable joint custodial plan. This was indicated by the fact that Mr. Kincaide almost admitted that the likelihood would be very slight that they could ever work together under a joint custody agreement. He said the parties cannot agree. When he thinks there is an agreement, things change a hundred and eighty degrees. If that situation continues to exist, it is doubtful that the parties could ever reach a joint custodial agreement. They certainly can’t agree at this time on one of the most basic things that is involved — the education of the child.

The court hopes that this situation will change and that the parties can learn to communicate with each other and interchange ideas about the welfare of the child.

Mr. Kincaide intends to remarry. This would be another situation that the child would have to adapt to and readjust to, and this would be more difficult under a joint custodial arrangement.

Furthermore, at this time, there is some indication that the moral environment to which the child might be exposed while in Mr. Kincaide’s physical custody would not be appropriate for the moral upbringing of this child. When Mr. Kincaide does remarry, if he remarries, and if that marriage is found to be a viable marriage in which the child could be brought up under the influence of his father to a greater extent, and the stepmother, a joint custody arrangement might then be considered.

The court concludes that it is premature at this point to grant joint custody because of the adjustments that the parties and the child are having to make. It would not be in the best interest of the child to further traumatize him by requiring him to readjust to a joint custodial arrangement.

With respect to the rule for reduction, the court believes that what Mr. Kincaide has presented here is anticipated expenses as to what may occur if he marries. They are not presently existing expenses. He hasn’t shown any change of circumstances insofar as his present situation is concerned, as compared to what his prior situation was. He is estimating and projecting into the future. But even if we assume that the court can properly and appropriately consider that estimate, the estimate of income and expenses which he has projected does reflect that he is managing to save $373.00 a month. He is managing to pay $314.00 a month for a note on a late model automobile and $63.00 a month for insurance on that automobile, $30.00 a month for automobile care, and $100.00 a month for gasoline. The courts have held that the luxury and convenience of owning and operating a late model automobile must yield to the necessity of supporting the minor child or children. This child is entitled to be continued to be maintained in the same manner in which he was being maintained prior to the separation of the parties to the extent that the parents can reasonably so provide.

Both of the parties jointly agreed to place this child in a private school, and that has, of course, increased the expenses. It would be hoped that something could be worked out whereby at least the day care expense would be minimized, but as far as the court is concerned, considering the totality of the circumstances here, even in the event the court is warranted in considering the income and expense statement which will come in effect if Mr. Kincaide remarries, the court does not believe that any reduction in child support would be warranted.

The rules nisi issued herein are recalled, vacated and set aside at plaintiff-in-rule’s costs.

THUS DONE, READ AND SIGNED at Baton Rouge, Louisiana, this 11th day of May, 1983.

/s/ E. Donald Moseley E. Donald Moseley, Judge.


author: ’ LOTTINGER, Judge.

text:
    STATE of Louisiana v. Anthony RICHARDSON.
    No. 83 KA 0556.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 22, 1983.
    Writ Denied March 9, 1984.

      Ossie B. Brown, Dist. Atty., by Ralph Roy, Sp. Prosecutor Asst. Dist. Atty., Baton Rouge, for plaintiff-appellee.
    M. Michele Fournet, Vince Wilkins, Asst. Public Defenders, Baton Rouge, for defendant-appellant.
    Before LOTTINGER, EDWARDS and ALFORD, JJ.
   ’ LOTTINGER, Judge.

Defendant, Anthony Ray Richardson, was charged by grand jury indictment with first degree murder. La.R.S. 14:30. He pled not guilty and not guilty by reason of insanity. A sanity commission was appointed to determine defendant’s capacity to assist his counsel and his mental state at the time of the commission of the alleged crime. The defendant was declared competent to stand trial. Subsequently, the defendant was found guilty by a 12 person jury of second degree murder. The trial court sentenced defendant to be confined by the Department of Corrections for life at hard labor, without benefit of probation, parole or suspension of sentence.

On appeal, defendant assigns 16 errors, of which he briefs only five. Those assignments of error not briefed are considered abandoned. Rule 2-12.4, Uniform Rules— Court of Appeal.

At trial, defendant never disputed the fact that he had shot and killed the victim and wounded another man. The only issue before the jury was defendant’s state of mind at the time of the crime.

FACTS

The defendant was an employee of the Rainbo Egg Co. in Baton Rouge for a period of about six months. A short time prior to the shooting the defendant purchased a .22 caliber pistol and brought it to work with him. When he displayed the pistol to a co-worker, Charlie Tate, he was informed that if Mr. Croucher, the manager, saw the gun on the premises, the defendant would be fired.

Approximately one week later Mrs. Croucher was visiting the shop, and when she used the women’s restroom she discovered the gun in the towel dispenser. Immediately she notified Charlie Tate who told her to inform her husband while he kept the defendant busy.

The defendant followed Mr. Croucher into the restroom where Mr. Croucher retrieved the gun from the dispenser and turned it over to the defendant. Mr. Croucher then informed the defendant that he would have to be fired for having the gun at the shop. Upon exiting the restroom the defendant fired the gun at Mr. Croucher hitting him twice above the ear and once in the neck. The defendant then fired at Mr. Tate three times, hitting him once in the left shoulder.

ASSIGNMENT OF ERROR NO. 9

In this assignment the defendant contends that the trial court erred in not granting a motion that one of the prospective jurors be removed for cause. The prospective juror, Kenneth Galik, had initially expressed an inability to apply the law concerning the insanity defense in La. R.S. 14:14 and Article 652 of the Louisiana Code of Criminal Procedure.

The trial court is given broad discretion in ruling on challenges for cause. The court’s ruling will be overturned only when it has exercised its discretion arbitrarily and unreasonably. State v. McIntyre, 381 So.2d 408 (La.1980); State v. Dickinson, 370 So.2d 557 (La.1979).

Viewing the record as a whole, Mr. Galik’s responses were due to a layman’s lack of knowledge of the law. The trial court, thereafter, explained the parties’ burdens of proof. After the explanation Mr. Galik then stated that he understood the law and would try to apply the standards of proof if chosen to serve as a juror.

This case is distinguishable from the case of State v. Nolan, 341 So.2d 885 (La.1977). In Nolan the juror’s seemingly prejudicial remark was due to a lack of comprehension and confusion as to the questions propounded. Only after extensive coaching by the trial court and the State was an abuse of discretion found.

The questioning of Mr. Galik was unlike that found in Nolan, supra, in that Mr. Galik was able to understand the Court’s explanation and a willingness to properly apply the law was expressed. This assignment of error lacks merit.

ASSIGNMENT OF ERRORS NOS. 13 AND 14

The defendant argues that the trial court erred when it denied the defendant’s motions for mistrial when the prosecutor made a reference to the Hinckley trial, and when the prosecutor asked a defense witness if he were aware that two other doctors thought the defendant was malingering.

Article 775 of the Louisiana Code of Criminal Procedure states that a mistrial shall be ordered “... when prejudicial conduct in or outside the courtroom makes it impossible for the defendant to obtain a fair trial....”

It is well settled that a mistrial is a drastic remedy and is warranted only when the result is substantial prejudice to the defendant depriving him of a fair trial. State v. Sepulvado, 359 So.2d 137, (La. 1978).

The objections raised by defense counsel in reference to the Hinckley remark was sustained. The trial court admonished the prosecutor from future remarks in reference to any other trial. The judge further admonished the jury to disregard the Hinckley trial comment. Any possible error was adequately corrected by the above admonitions.

The defendant asserts that the comments made about the defendant’s possible malingering was an attempt to introduce hearsay evidence.

In State v. Stephenson, 291 So.2d 767 (La.1974), the Louisiana Supreme Court held that a prosecutor’s deliberate and repeated attempts to elicit hearsay testimony was not grounds for mistrial because the trial judge sustained every objection raised by defense counsel.

The judge in this case sustained every objection made by defendant’s counsel. The facts also show that Dr. Landry did testify that in his opinion the defendant was malingering. This negates any unfair prejudice to the defendant under the argument that there could be no cross-examination on the question.

Any error was sufficiently corrected by sustaining of the defendant’s objection. Substantial prejudice to the defendant did not occur.

These assignments of error are without merit.

ASSIGNMENT OF ERROR NO. 15

The defendant contends that the trial court committed error in denying a special instruction for the sanity test be given to the jury.

Article 807 of the Louisiana Code of Criminal Procedure provides:

“A requested special charge shall be given by the Court if it does not require qualification, limitation, or explanation, and if it is wholly correct and pertinent. It need not be given if it is included in the general charge or in another special charge to be given.”

The defendant requested the following charge be given under Article 807:

“When no question of sanity is raised, the state’s burden of proving sanity is satisfied by the presumption of sanity, which stands in the place of evidence. When however, ‘some’ evidence, which need only be ‘slight’, of a defendant’s insanity is introduced at trial, the presumption is insufficient and the state must prove the defendant’s sanity beyond a reasonable doubt.”

The requested special charge is not consistent with Louisiana law. The burden is on the defendant in establishing the defense of insanity at the time of the offense by a preponderance of the evidence. La.C. Cr.P. Art. 652.

Since the burden placed on a defendant in Louisiana is somewhat less than the “reasonable doubt” standard upheld in other states, the defendant’s due process rights have not been infringed. Leland v. State of Oregon, 343 U.S. 790, 72 S.Ct. 1002, 96 L.Ed. 1302 (1952); Snyder v. Commonwealth of Massachusetts, 291 U.S. 97, 54 S.Ct. 330, 78 L.Ed. 674 (1934). The trial court properly denied the requested special charge. This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 16

In this assignment of error the defendant alleges that he met his burden of proof in establishing insanity beyond a preponderance of the evidence, and that the trial judge erred in denying his motion for post judgment acquittal.

The defendant argues that the testimony of defense expert witness, Dr. Mark Zimmerman, was not rebutted at trial. Dr. Zimmerman testified at trial that the defendant was unable to distinguish right from wrong at the time of the shooting.

In reviewing claims of insufficiency of evidence in regard to the insanity defense the test is “... whether any rational fact finder, viewing the evidence in the light most favorable to the prosecution, could find, beyond a reasonable doubt, that the defendant failed to present a preponderance of proof in support of the defense.” State v. Price, 403 So.2d 660, 662 (La.1981).

Using the standard of proof as stated in Price, supra, a rational trier of fact could conclude beyond a reasonable doubt that the defendant failed to prove his insanity by a preponderance of the evidence.

A defendant’s proof of insanity by a preponderance of the evidence may be effectively rebutted by the prosecution through the use of expert or lay testimony. State v. Claibon, 395 So.2d 770 (La.1981).

Sufficient lay testimony to rebut the defense of insanity was presented at trial. Charlie Tate stated that the defendant was a good, normal worker. Another worker, Ted Reeder, worked with the defendant everyday for a period of five or six months. Dr. Zimmerman only spent five hours with the defendant. When Dr. Zimmerman was asked whether he could be certain whether the defendant knew right from wrong, he stated that he could not be certain unless he had seen the incident.

The testimony of Dr. Landry coupled with the lay testimony, when viewed in a light most favorable to the prosecution, could lead a rational juror to conclude beyond a reasonable doubt that the defendant did not prove his insanity defense by a preponderance of the evidence.

This assignment of error is without merit.

Therefore, for the above and foregoing reasons, the conviction and sentence are affirmed.

AFFIRMED.


author: ALFORD, Judge.

text:
    Hercilda GALEANO v. Hector J. GALEANO.
    No. 83 CA 0562.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 22, 1983.
    Writ Denied Feb. 27, 1984.

      Richard J. Brazan, Baton Rouge, for plaintiff-appellee Hercilda Galeano.
    James D. Thomas, II, Baton Rouge, for defendant-appellant Hector J. Galeano.
    Before LOTTINGER, EDWARDS and ALFORD, JJ.
   ALFORD, Judge.

This is an appeal from a judgment of the Family Court, Parish of East Baton Rouge, decreeing a separation from bed and board and granting sole custody of the minor child, Mildred Galeano, to the mother, Her-cilda Galeano. Appellant, Hector Galeano, appeals from the custody award alleging the trial judge erred in not granting joint custody.

The trial judge concluded that serious allegations of improper sexual conduct on the part of Mr. Galeano, directed towards an older child of the marriage, sufficiently rebutted the presumption that joint custody was in the best interest of Mildred. The allegations made by this older child and corraborated by Mrs. Galeano involve conduct allegedly beginning when Mildred’s sister was approximately Mildred’s age. Although appellant presented testimony in an attempt to rebut these allegations, the trial judge obviously believed that serious improprieties had taken place.

LSA C.C. art. 146 was substantially amended by Acts 1982, No. 307, § 1, which became effective January 1, 1983. The amendment to this article reflects that when both parents are seeking provisional custody of a child of the marriage, the preferential alternative is joint custody if it is in the best interest of the child. Additionally, the amendment establishes that the burden of proof in showing that joint custody is not in the best interest of the child is on the parent seeking sole custody. The article now goes so far as to provide that there is a rebuttable presumption that joint custody is in the child’s best interest. This presumption can be rebutted, however, by a finding of the court that joint custody is not in the best interest of the child.

It is apparent to this court that the legislature has not sought to change the best interest of the child standard by which custody proceedings have long been judged. Additionally, the trial judge’s discretion in custody matters are entitled to great weight and should not be disturbed on appeal unless a clear abuse is shown. Schmidt v. Schmidt, 393 So.2d 381 (La. App. 1st Cir.1980). We find no such abuse.

Appellant maintains that the trial judge erred in giving great weight to the testimony of Mildred’s sister. It is appellant’s contention that the testimony presented on his behalf clearly rebutted the girl’s testimony. The trial judge, who was in the best position to judge credibility, specifically noted in his reasons for judgment that he found it very difficult to believe that this young woman was so cunning as to fabricate such a story over a span of some eight years. We agree.

Therefore, for the foregoing reasons, the judgment of the trial court is affirmed and appellant is cast with costs of this appeal.

AFFIRMED.


text:
    STATE of Louisiana v. James Curtis CROSBY.
    No. 83-KA-0576.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 22, 1983.
    William J. Burris, Asst. Dist. Atty., Franklinton, for the State.
    Thomas J. Ford, Jr., Covington, for defendant.
    Before LOTTINGER, EDWARDS and ALFORD, JJ. .
   EDWARDS, Judge.

Defendant, James Curtis Crosby, was charged by a bill of information with attempted second-degree murder in violation of R.S. 14:27 and 14:30.1.

On May 29, 1982, defendant, in front of several witnesses, shot Otha Graves at a liquor store in Franklinton, Louisiana. The defendant claimed self-defense and pled not guilty. Defendant was tried and found guilty of aggravated battery.

The trial court sentenced defendant to be confined with the Department of Corrections for eight years.

On appeal, defendant lists no assignments of error. Rather, defendant requests that we review the record for errors patent, i.e., those errors discoverable by a mere inspection of the pleadings and proceedings without inspection of the evidence. State v. Davis, 332 So.2d 821 (La.1976). We have examined the record for such errors and have found none.

DECREE

Accordingly, for the reasons assigned, defendant’s conviction and sentence are affirmed.

AFFIRMED.


author: LOTTINGER, Judge.

text:
    STATE of Louisiana v. Richard SWARTZ.
    No. 83 KA 0596.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 22, 1983.

      Ossie Brown, Dist. Atty., Baton Rouge, by Brett Grayson, Asst. Dist. Atty., for plaintiff-appellee.
    Keith Nordyke, Moore & Walters, Baton Rouge, for defendant-appellant.
    Before LOTTINGER, EDWARDS and ALFORD, JJ.
   LOTTINGER, Judge.

Defendant, Richard Swartz, was charged by bill of information with two counts of armed robbery, violations of La.R.S. 14:64. Defendant pled not guilty. After trial by jury defendant was found guilty as charged on both counts. Defendant was sentenced to thirty-five years at hard labor on each count, without benefit of probation, parole, or suspension of sentence, with the sentences to run consecutively. Additionally, defendant was ordered to pay trial and court costs or serve an additional year in confinement. Defendant appeals his conviction and sentence, arguing and briefing nine assignments of error.

FACTS

On April 19, 1982, at 8:00 p.m., Donita Tarver was robbed while leaving her place of employment, Eckerd’s Drug Store on Staring Lane. Two men, one described by Ms. Tarver as having dark hair and the other as having a red bushy beard, accosted her as she opened her car door. Ms. Tarver testified that the man with the dark hair held a silver pistol and that the men fled on foot.

About 45 minutes later, John Merriman was robbed by two men at the Hickory Stick restaurant on Concord Avenue. He testified that the dark-haired man held a small nickel-plated gun, and that both wore beards and were shabbily dressed.

About 1:30 a.m., later that night, Harry Ames and Richard Swartz were arrested, when a complaint was received about two men who were loitering in the back of a restaurant parking lot. Both fit the general descriptions given by Ms. Tarver and Merriman. A small silver pistol was discovered on defendant Swartz. Both men were charged with armed robbery.

Neither Ms. Tarver nor Mr. Merriman were able to identify defendant at out-of-court physical lineups conducted on April 22, 1982. At trial, however, both victims identified Swartz as one of the men who committed the robbery. In addition, both identified the gun introduced into evidence as the silver gun used in the robbery.

Harry Ames testified against Swartz in return for pleading guilty to the lesser charge of simple robbery. He testified that he and Swartz committed two robberies, one of a woman in a store parking lot and another of a man at a barbeque restaurant. He further testified that Swartz used a gun in both robberies. He also stated that he knew Swartz by an alias, Rick Dalton.

ASSIGNMENT OF ERROR NUMBER 1

Defendant argues that the trial court erred in refusing to give the requested jury charge on accomplice testimony.

La.Code Crim.P. art. 807 provides that a requested special charge need not be given if it is included in the general charge or in another special charge. Where the state’s case relies on uncorroborated accomplice testimony, the judge should instruct the jury to consider the testimony with caution; where the accomplice’s testimony is materially corroborated, however, such a caution need not be given. State v. Schaffner, 398 So.2d 1032 (La.1981); State v. Murray, 375 So.2d 80 (La.1979). Material corroboration is defined in Schaffner, supra, as “... evidence that confirms material points in an accomplice’s tale and confirms the defendant’s identity and some relationship to the situation.” 398 So.2d at 1035.

The accomplice’s testimony was corroborated in the instant case. Defendant was identified in court by both victims. The gun found on defendant’s person was identified by the victims as the one used by their assailant. Further, Ames’ story was corroborated by the two victims stating that it was the dark-haired robber (defendant) and not Ames (the bushy red-bearded robber) who held the gun. A by-standing witness to the Tarver robber described defendant and Ames to the police, and the description matched those given by the victims.

Thus, the trial court’s instructions on general witness credibility (which included a caution of bias or interest of witnesses) were adequate here.

ASSIGNMENTS OF ERROR NUMBERS 2, 5 AND 7

The defendant argues in these assignments that the trial court erred in sustaining the conviction and denying his motion for a new trial because there was insufficient evidence to convict him.

Defendant claims specifically that the evidence consisted almost entirely of the uncorroborated testimony of his accomplice. Neither the victims nor the by-standing witnesses were able to identify defendant at a line-up conducted several days after the robberies.

As we have noted above, however, the accomplice’s testimony was corroborated by other testimony and evidence. Judged in the light most favorable to the prosecution, the evidence is sufficient to allow a rational trier of fact to find that the elements of the crime were proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Furthermore, even if Ames’ testimony was uncorroborated, such testimony could sustain a conviction. State v. May, 339 So.2d 764 (La.1976). State v. Matassa, 222 La. 363, 62 So.2d 609 (1953).

These assignments lack merit.

ASSIGNMENTS OF ERROR NUMBERS 3, 4 AND 8

Defendant here argues that his sentences are unconstitutionally excessive in light of the sentence his accomplice received and the order to serve them consecutively.

The length of the sentences given to other defendants in similar circumstances is only one factor to be considered in determining whether a particular sentence is excessive. State v. Day, 414 So.2d 349 (La.1982). The accomplice Ames apparently received a suspended sentence after pleading guilty to simple robbery.

The record of the sentencing hearing reflects the trial judge’s thoughtful reasoning behind his decision to sentence defendant to two thirty-five year consecutive sentences. Defendant had a record of two juvenile offenses, and two prior felony offenses (burglary and escape from jail). He had shown no remorse for his crime, while his accomplice had cooperated with the authorities immediately. Defendant was the robber who had held the gun on the victims. Defendant had nothing to say when the judge asked him if he knew of any mitigating factors in his favor.

Additionally, defendant’s sentences are for convictions for crimes that did not arise out of a single course of conduct; rather, the robberies were separate and distinct. As such, the imposition of consecutive sentences here is not an abuse of the trial judge’s discretion. See La.Code Crim.P. art. 883; State v. Farria, 412 So.2d 577 (La.1982).

ASSIGNMENT OF ERROR NUMBER 6

Defendant contends that the trial court erred in admitting testimony which indicates that he used an alias. Defendant argues that the evidence was irrelevant, contains no probative value, and that the state was only attempting to show the defendant was “a bad man.” The state submits that, since identification was an issue at trial, evidence regarding the name of the defendant was relevant. Furthermore, the prosecution argues this information was solicited to prevent the jury from being confused should Ames refer to defendant by the name Dalton during his testimony.

La.R.S. 15:441 provides:

“Relevant evidence is that tending to show the commission of the offense and the intent, or tending to negative the commission of the offense and the intent. Facts necessary to be known to explain a relevant fact, or which support an inference raised by such fact, are admissible.

Whether evidence is relevant is within the discretion of the trial judge and his ruling will not be disturbed on appeal in the absence of a clear abuse of discretion. State v. Chaney, 423 So.2d 1092 (La.1982).

Although the state contends the evidence of defendant’s alias was used to identify him, we find that the relevancy of this testimony is nil. The record does not reflect any references to defendant by the name Dalton other than during Ames’ testimony when asked for the name by the prosecutor. It seems unlikely that this information was solicited for identification purposes or to prevent confusion. Nevertheless, the evidence is not so prejudicial as to merit reversal. La. Code Crim.P. Art. 921.

Since defendant has not demonstrated that he was prejudiced by the court’s ruling, the error was harmless. State v. Johnson, 343 So.2d 155 (La.1977). If error is committed and this court finds beyond a reasonable doubt that the error was harmless in the light of the total circumstances, the defendant’s conviction will not be overturned. State v. Humphrey, 412 So.2d 507 (La.1982). -

ASSIGNMENT OF ERROR NUMBER 9

Here defendant complains that the sentence is unconstitutional in that it sentences him to an additional year in prison if he does not pay court costs. He claims he is indigent. Where an indigent defendant is given a greater sentence than the maximum period fixed by law because of his inability to pay a fine or court costs, the sentence discriminates impermissably. State v. Williams, 288 So.2d 319 (La.1974). State v. Young, 432 So.2d 1012 (La.App. 1st Cir.1983).

Although defendant appears to be an indigent, his total sentence for the two counts and the failure to pay is 71 years, far below the maximum statutory period of 198 years. Thus the imposition of the additional year imprisonment for failure to pay costs is legal.

Therefore, for the above and foregoing reasons, the convictions and sentences are affirmed.

AFFIRMED.

      . Assignment of error number 10 was not addressed in brief to this Court. An assignment of error not briefed is considered abandoned. Uniform Rules — Courts of Appeal, Rule 2-12.4.

      . The colloquy between co-defendant Harry Ames and the prosecutor was as follows:
      Q. (Mr. Grayson) Who all was in the car with you?
      A. There was me, Rick Swartz, Bobbin Swartz and Rick Kincaid.
      Q. Now you — What is the name that you know this individual by?
      (Defense objected and the trial judge overruled the objection.)
      Q. Again by what name do you know the defendant?
      A. Rick Dalton, Sir.


text:
    STATE of Louisiana v. Thomas M. PLAISANCE.
    No. 83 KA 0868.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 22, 1983.
    David Paddison and Peter Garcia, Asst. Dist. Attys., Covington, for appellee.
    S. Austin McElroy, Oliver F. Johnson, Covington, for appellee.
    Before PONDER, WATKINS and CARTER, JJ.
   PONDER, Judge.

Defendant pled guilty to simple robbery, a violation of La.R.S. 14-.65. He was sentenced to serve a period of seven years at hard labor and to pay a fine of $3,000.00 or, in default of payment, to serve an additional one year imprisonment.

Defendant appealed and assigns as error the imposition of an excessive sentence.

We affirm, as amended.

The trial court imposed the maximum sentence of imprisonment as well as the maximum fine. The court also imposed an additional sentence in the event of default in payment of the fine. Defendant argues that since he is indigent and will not be able to make payment, he will be imprisoned beyond the maximum limit allowed by statute. Defendant’s assignment of error has merit.

In the case of an indigent defendant, it is impermissible to impose a prison term in lieu of payment of a fine that would result in the defendant serving a longer term than the statutory maximum for the offense. Williams v. Illinois, 399 U.S. 235, 90 S.Ct. 2018, 26 L.Ed.2d 586 (1970); State v. Williams, 288 So.2d 319 (La.1974); State v. Young, 432 So.2d 1012 (La.App. 1st Cir.1983); State v. Hernandez, 432 So.2d 350 (La.App. 1st Cir.1983).

The appointment of counsel from the Office of the Public Defender to represent the defendant throughout these proceedings adequately establishes defendant’s indigency. State v. Williams, supra; State v. Young, supra; State v. Hernandez, supra.

We must therefore vacate the fine portion of defendant’s sentence.

For the foregoing reasons, that portion of defendant’s sentence which required him to pay a $3,000.00 fine or serve an additional year in default thereof, is vacated. In all other respects, defendant’s sentence and conviction are affirmed.

AFFIRMED, AS AMENDED.

      . La.R.S. 14:65:
      Simple robbery is the theft of anything of value from the person of another or which is in the immediate control of another, by use of force or intimidation, but not armed with a dangerous weapon.
      Whoever commits the crime of simple robbery shall be fined not more than three thousand dollars, imprisoned with or without hard labor for not more than seven years, or both.


author: BARRY, Judge. LOBRANO, Judge,

text:
    In re W.P.B., Applying for Adoption.
    No. CA-0854.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 3, 1984.
    Daniel A. Ranson, Windhorst, Pastorek & Gaudry, Gretna, for plaintiff-appellant.
    Terrance J. Powers, New Orleans Legal Assistance Corporation, New Orleans, for defendant-appellee.
    Before SCHOTT, BARRY and LOBRA-NO, JJ.
   BARRY, Judge.

Appellant W.P.B. petitioned to adopt his minor stepdaughter, T., who was born during his wife’s prior marriage to the natural father. The Juvenile Judge denied the adoption without written reasons, simply stating: “The Court believes it to be in the best interest of the child to deny the proposed adoption.” We fail to find any reason why the adoption was denied.

The child was born on January 21, 1976. The parents separated in January, 1977 and were divorced on January 11, 1979. The ex-wife obtained legal custody of the child, then 3 years old, and $100.00 per month child support. The mother and appellant married in November, 1980 and the child has resided with them since.

The father refused to consent to the adoption, so on January 17, 1983 appellant proceeded under LSA-R.S. 9:422.1, which provides in pertinent part:

If the spouse of the petitioner is the legitimate parent of the child ... then the consent of the other legitimate parent is not necessary when the spouse of the petitioner ... [has] been granted custody of the child by a court of competent jurisdiction, and if any one of the following conditions exist:
(1) the other legitimate parent has refused or failed to comply with a court order of support for a period of one year.

Following the parents’ divorce in 1979, the paternal grandparents paid the child support until January, 1981, a few months after the mother married appellant. It is clear that the father failed to support his child for well over one year prior to the adoption petition. However, he claims to have a mental illness which prevents him from steady employment; thus, he urges there was just cause beyond his control to relieve him of his support obligation. See In Re Ackenhausen, 244 La. 730,154 So.2d 380 (1963).

The father was hospitalized several times from 1978 through 1980 and was under out-patient care and on medication at the time of trial. He cites Steed v. McKenzie, 344 So.2d 689 (La.App. 1st Cir.1977) wherein a natural father’s consent to adoption was necessary despite non-payment of child support due to a claimed inability to work because of prolonged, chronic emotional and mental illness. However, the father’s mental problem (personality disorder) falls short of the severe illness in Steed. His psychiatrist, Dr. Escaloda, testified that he could not say that the father had a mental disorder which prevented employment. In fact, the father (who attended college for 3 years) had several jobs but quit each one after a few weeks because the hours were inconvenient, transportation was a problem, etc. He has not been hospitalized since 1980. The father testified he was not seeking employment because he could not afford bus fare to apply. He, his present wife and her child live on $633 monthly disability income. Interestingly, he said a job would interfere with his obligation to care for his 70% mentally disabled, pregnant wife and her 9 year old son. In 1982 he received $5,800 personal injury settlement, and used part of the funds ($600) to reimburse his parents. He did not give any of the money to support his daughter.

Even though most of the evidence concerns the father’s ability to pay child support, the trial judge made no determination on that issue. In denying the adoption, the Court relied on the “best interest” standard so it apparently concluded that the father failed to prove his mental disability. Thus, his consent to the adoption was pre-empted by R.S. 9:422.1 and he did not establish legal cause (his alleged mental disability) to circumvent his obligation to support.

Adoption of Latiolais, 384 So.2d 377, 378 (La.1980) set forth the following guidelines:

R.S. 9:422.1 does not set the criteria to be used in determining whether or not an adoption shall be granted. It applies only to the narrow question of whether parental consent shall be required when a minor’s adoption is sought. The best interest of the child is the major standard to which a court must look before it can determine when or whether to order an adoption.

Our concern is to look closely at the record and apply the “best interest” standard. The confidential report by the Department of Health and Human Resources (DHHR) notes that the divorce decree allowed the father to visit his daughter at his parents’ home, but he did not see her for months at a time. Importantly, the DHHR report stated: “This child appears to be happy, healthy and well-adjusted. She definitely wants to be adopted by her stepfather.” (our emphasis)

The child’s mother and stepfather attested to a close, loving relationship between the child and her stepfather. The child was less than a year old when her parents separated and her stepfather is the only father she has known. According to her mother, the child loves her stepfather very much. She calls him “Daddy” and is eager for him to be her “real” father. The stepfather testified he loves his stepdaughter very much and wants to rear and prepare her to cope with life as an independent, secure woman. Unquestionably, the child’s apparent happiness must be attributed to the family environment provided by her mother and stepfather.

By contrast, it is significant that the father did not maintain a continuing relationship with his daughter since her birth. The father’s brief says he has seen the youngster sporadically on holidays, birthdays and other occasions. In his testimony he said the only place he saw his child was at his parents’ home and they arranged for the mother and stepfather to be there too. At the time of trial in April, 1983, he had not seen his daughter for almost four months. He claimed that “half the time I didn’t even know where they lived....” He made an attempt to locate his ex-wife by checking the New Orleans telephone directory, but did not consult the Jefferson Parish directory or ask his parents where his daughter was living. He said his ex-wife’s parents would not reveal her whereabouts.

The trial judge did not provide any basis to support his statement that it was in the child’s best interest to deny the adoption. There was no finding that the father and his daughter had a meaningful relationship, nor was one probable or even possible. No relationship existed, so none could be re-established.

Under these extraordinary, but clear, circumstances, we find it insufficient to simply rely on the phrase “best interest” in order to overcome the clear and convincing evidence that the child should be adopted by her stepfather. It is obvious that the father has forsaken the opportunity to share his life with his child. Instead, he is totally devoted to his new family. Even though the father claims he is unable to work and support his own child, he filed to adopt his present wife’s child. To compound the situation, his wife was four months pregnant at the time of trial.

We considered the “fundamental liberty interest” concept of a natural parent which- is protected by Amendment XIV to the U.S. Constitution. See Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). The standard of proof required to terminate parental rights in neglect cases does not alter our conclusion that this natural father effectively abandoned his child, both legally and morally. The evidence not only preponderates in favor of the adoption, we are satisfied it is clear and convincing and to hold otherwise was clearly wrong.

The Juvenile Court judgment is therefore reversed; judgment is hereby rendered ordering the adoption of the minor child, T., by petitioner, W.P.B. This matter is remanded to the Juvenile Court to comply with statutory requirements in furtherance of the adoption.

.REVERSED; RENDERED; REMANDED.

LOBRANO, Judge,

dissenting.

I respectfully dissent from the majority’s reversal of this adoption case. Unfortunately, 90% of the evidence in this case deals with the natural father’s ability (or inability) to pay child support during the year prior to the adoption proceedings. The scant evidence that does deal with the “best interests” of the child does not convince me that the juvenile judge was clearly wrong. The testimony of all parties indicate they both love and care for Theresa very much. The juvenile judge indicated that he spoke with the minor in his chambers. We are not privy to that conversation, but it must be given weight in determining whether there was manifest error. The adopting parent has the burden to prove that the adoption would be in the best interests of the minor. I am of the opinion that the juvenile judge did not commit manifest error in refusing to grant the adoption.

      . The parties' names are anonymous to maintain confidentiality of the proceedings.


author: BARRY, Judge.

text:
    Earl WILLIAMS, Jr. v. BOARD OF ZONING ADJUSTMENTS, the City of New Orleans, George’s Auto Parts, Inc., and George Gomez. In re GEORGE’S AUTO PARTS, INC., and George Gomez. Earl WILLIAMS, Jr. v. BOARD OF ZONING ADJUSTMENTS, the City of New Orleans, et al. In re The CITY OF NEW ORLEANS, BOARD OF ZONING ADJUSTMENTS.
    Nos. C-1620 C/W, No. C-1621.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 3, 1984.
    Romualdo Gonzalez, New Orleans, for relator.
    Douglas S. Draper, New Orleans, for respondent.
    Salvador Anzelmo, City Atty., Karen Mil-ner, Asst. City Atty., New Orleans, for city of New Orleans.
    Before REDMANN, BARRY and AUGUSTINE, JJ.
   BARRY, Judge.

On April 11, 1983 the Board of Zoning Adjustments (BZA) filed a decision concerning zoning variances requested by George Gomez (relator). On April 29th plaintiff filed suit in Civil District Court against relators seeking to overturn the BZA’s decision and to enjoin additional construction. On June 3, 1983 plaintiff filed a “Second Supplemental and Amending Petition” wherein he changed his suit to read “Application for Writ” and requested that certio-rari issue to the BZA. On July 5th the City of New Orleans and BZA filed an Exception of Prescription, and the other relators filed an Exception of Peremption. Both exceptions were heard on October 28th, denied on November 7th, and this writ was filed on November 29, 1983.

The City contends plaintiffs appeal to the district court was untimely because his original petition did not seek a writ of certiorari and the supplemental and amending petition, which did seek a writ, was filed after the statutory 30-day preemptive/prescriptive period. The City argues that, because of the exclusiveness of the statutory procedure for zoning appeals and the strict requirements for perfecting such appeals, plaintiff’s amended petition did not relate back to the date of filing his original petition. The City relies on Lege v. Vermilion Parish School Board, 360 So.2d 664 (La.App.3d Cir.1978).

We find Lege distinguishable because it involved a suit by taxpayers and electors attempting to challenge a bond election. The peremptive period for contesting an election is delineated in our La. Constitution and the exclusive procedure for such challenges is specified by statute. Unlike an ordinary lawsuit, the procedure for contesting an election is an extraordinary measure, requiring the challenger to file a “motion for judgment” which must be published in a general newspaper within certain time periods, etc. The statute also contains special notice and service requirements. The plaintiffs in Lege filed a suit via ordinaria which failed to conform to any of the statutory specifications and plaintiffs’ supplemental petition, attempting to conform to the statutory provisions, was held untimely.

The procedure to review a BZA decision is not substantially different from the procedure for review of many other administrative rulings.

We agree with the trial court that plaintiffs original petition complies with R.S. 33:4727. The petition was filed within 30 days of the BZA decision; it was “duly verified” by the plaintiff and properly notarized; it set forth the alleged “grounds of the illegality”, i.e., the failure to provide proper notice and the incompatibility of the use with B-l zoning. The petition sought an injunction against additional construction on the premises and requested that the district court “overturn the variance granted by the BZA.”

The statute does not require that a petition for review of a BZA decision be captioned “Petition for Writ of Certiorari”, nor does the statute require that the petition specifically request such a writ. Rather, the statute provides that, “Upon the presentation of such petition, [i.e., the verified petition complaining of a board decision] the court may allow a writ of certio-rari directed to the Board of Adjustment to review the decision_” (our emphasis). Issuance of the writ is merely the vehicle by which the district court initiates review in response to a petition alleging error or illegality which may be meritorious. LSA-C.C.P. Art. 854 provides: “No technical pleadings are required.” The courts are directed to construe all pleadings to do substantial justice and, under Art. 862, “shall grant the relief to which the party ... is entitled, ... even if the party has not demanded such relief in his pleadings....”

The City attempts to classify plaintiffs original petition as a “collateral attack” on the BZA decision, as opposed to a request for appellate review. A collateral attack, however, is an attempt to defeat a judgment “in some incidental proceeding not provided by law for the express purpose of attacking it.” See Black’s Law Dictionary, citing May v. Casker, 188 Okl. 448, 110 P.2d 287, 289. A collateral attack is initiated in a separate lawsuit filed in a trial court, not in the appellate court. Here, the district court functions as the first court of appellate review. Plaintiffs original petition specifically sought reversal of the BZA’s decision. Thus, it was not a collateral attack, but rather a petition for appellate relief. The only difference between plaintiffs original petition and his supplemental and amending petition is that the latter changed the caption of the pleading to read, “Application for Writ” and requested the District Court to grant a writ and overturn the BZA decision for the reasons set forth in the original petition. Both the cause of action and the relief sought were properly set forth in the original petition.

We find no error in the denial of the City’s exception of prescription.

WRITS DENIED.

      . See La. Const. Art. 6, Section 35(A) 1974.

      . See LSA-R.S. 39:513.

      . LSA-R.S. 33:4727 provides in part:
      Any person or persons jointly or severally aggrieved by any decision of the board of adjustment, or any officer, department, board, or bureau of municipality, may present to the district court of the parish or city in which the property affected is located a petition, duly verified, setting forth that the decision is illegal, in whole or in part, specifying the grounds of the illegality. The petition shall be presented to the court within thirty days after the filing of the decision in the office of the board. Upon the presentation of such petition the court may allow a writ of certiorari directed to the board of adjustment to review the decision of the board of adjustment and shall prescribe therein the time within which a return may be made and served upon the relator’s attorney, which shall be not less than ten days but which may be extended by the court. The allowance of the writ shall not stay proceedings upon the decision appealed from but the court may, on application, on notice to the board and on due cause shown, grant a restraining order. The board of adjustment shall not be required to return the original papers acted upon by it, but may return certified or sworn copies thereof or such portions thereof as may be called for by the writ. The return shall concisely set forth such other facts as may be pertinent and material to show the grounds of the decision appealed from and shall be verified. If, upon the hearing, it shall appear to the court that testimony is necessary for the proper disposition of the matter, it may take additional evidence or appoint a referee to take such evidence as it may direct and report the same to the court with his findings of fact and conclusions of law, which shall constitute a part of the proceedings upon which the determination of the court shall be made. The court may reverse or affirm, wholly or in part, or may modify the decision brought up for review. Costs shall not be allowed against the board unless it appears to the court that it acted with gross negligence, or in bad faith, or with malice in making the decision appealed from. All issues in any proceedings under this Section shall have preference over all other civil actions and proceedings.
      Article 15, Section 2.4.5 of the Comprehensive Zoning Ordinance provides in part:

        Appeals to the Court. Any person or persons, or any officer, department, commission, board, bureau, or any other agency of the City of New Orleans jointly or singularly aggrieved by any decision of the Board of Zoning Adjustments may present to the Civil District Court of the Parish of Orleans, within thirty (30) days after filing of the decision in the office of the Board, a writ of certiorari asking for such relief and under such rules and regulations as are provided for such matters in appropriate legislation of the State of Louisiana.


text:
    STATE of Louisiana v. Shauna L. TOWNES, et al.
    No. K-1677.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 5, 1984.

      Harry F. Connick, Dist. Atty., Paul G. Mayoral, Asst. Dist. Atty., New Orleans, for relator.
    Clyde D. Merritt, New Orleans, for respondent.
    Before BARRY, KLEES and BYRNES, JJ.
   BARRY, Judge.

The defendant, Shauna L. Townes, was arrested for prostitution and posted a $2,500.00 commercial surety bond. She pled guilty and was sentenced to thirty days in Parish Prison, suspended, and placed on one year inactive probation with the condition that she pay a $250.00 fine by August 10, 1983. Townes failed to pay the fine, a capias was issued for her arrest, and her bond was forfeited.

A motion to set aside the bond forfeiture was granted and the State filed this writ.

Code of Criminal Procedure Art. 331 defines bail as “the security given by a person to assure his appearance before the proper court whenever required.” Art. 330 provides in part:

The condition of the bail undertaking shall be that the defendant will appear at all stages of the proceedings to answer the charge before the court in which he may be prosecuted, will submit himself to the orders and process of the court, and will not leave the state without written permission of the court.

The Code recognizes bail to insure appearance before trial (Arts. 312 and 313) and after conviction (Art. 314). Art. 314 addresses the situation after conviction but before sentence and after sentence pending “final judgment”, i.e. appeal. The Code does not cover the circumstances here, where the defendant was sentenced and placed on probation, took no appeal, but failed to fulfill a condition of probation. Cases cited by relator deal with situations where the defendant has not been tried or where an appeal is pending and the appeal bond is in question.

The language of this surety bond and the one in State v. Kaercher, 394 So.2d 1172 (La.1980) is almost identical (Kaercher involved an appeal and the surety’s agent’s authority). The Kaercher court said the bonding company had the option of continuing the bond after sentencing — here, the surety never extended its obligation beyond sentencing.

No appeal was taken and the judgment is final. The surety’s obligation on the bond ended with the “final judgment” and its obligation extinguished. The writ is DENIED.


author: WILLIAMS, Judge.

text:
    Anthony VICTOR v. Thomas SAPORITO and the City of New Orleans.
    No. CA-0345.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 5, 1984.

      Gilbert R. Buras, Jr., Deputy City Atty., Salvador Anzelmo, City Atty., New Orleans, for defendants-appellees.
    Carl J. Barbier, New Orleans, for plaintiff-appellant.
    Before AUGUSTINE, WARD and WILLIAMS, JJ.
   WILLIAMS, Judge.

This is an appeal from a judgment of the trial court finding that the City of New Orleans is not liable for the injuries sustained by the plaintiff in an automobile accident.

Plaintiff was injured in an automobile accident. After settling the law suit against the driver of the other automobile, he went to trial against the City of New Orleans [“City”], alleging that a missing stop sign caused the accident. The trial court found that although the City was strictly liable for the stop sign under Civil Code art. 2317, the damages sustained by the plaintiff did not result from that vice or defect.

The facts of this case are simple. Plaintiff was travelling down a one way street, east bound, at approximately 25 miles per hour. The driver of the other car, Thomas Saporito, was travelling north bound on a one way street at approximately 20 miles per hour. The plaintiff was familiar with the street on which he was driving having driven on that street almost every day. Saporito had moved to the City three weeks before and was unfamiliar with the street upon which he was travelling. The street on which Saporito was driving normally was the controlled street at the intersection. The stop sign, however, was missing. The pole on which it was normally placed had been broken off near the ground. The sign had been wired to a tree on the left side of the street, but was facing so that it was not clearly visible to traffic travelling on the controlled street. As he proceeded through the intersection, Saporito’s car struck plaintiffs car.

The plaintiff argued that the City was liable for his and his infant daughter’s injuries on the basis of two theories of liability: (1) the City is strictly liable under art. 2317 of the Civil Code, or (2) it is liable under the theory of simple negligence. Because we find that the City was strictly liable for the injuries suffered by the plaintiff, there is no need to determine whether it was simply negligent.

Defendant argues that it is not liable on the basis of Pepitone v. State Farm Mutual Auto Insurance Co., 369 So.2d 267 (La. App. 4th Cir.), writ den. 371 So.2d 1343 (La.1979). Pepitone imposes a duty upon motorists to consider every intersection that they approach uncontrolled until they are able to ascertain otherwise. Unless a trap has been created by a missing stop sign, the municipal, parochial, or state eritity responsible for the care of streets and highways is not liable for any accident that may occur at the intersection. Morgan v. Allstate Ins. Co., 393 So.2d 324 (La.App. 1st Cir.1980); see also Wall v. American Employers Ins. Co., 317 So.2d 369 (La. App. 2d Cir.1979), aff'd 386 So.2d 79 (La.1980).

We, however, find Pepitone to be distinguishable from this case. In Morgan, supra, the court discussed the law that has evolved in situations such as is presented here:

“[A]n examination of the applicable cases reveal two basic situations that arise frequently in the missing stop sign cases. On the one hand there is the situation where the plaintiff is traveling on the road normally controlled by the stop sign. The plaintiff is involved in an in-tersectional collision and sues the public entity for his damages. The courts have refused to allow recovery in this situation, reasoning that plaintiffs breach of his duty in failing to approach the intersection with due care is the sole proximate cause of the accident. Although the public entity’s negligence may well be a cause in fact the courts obviously feel it inequitable to allow a negligent plaintiff to recover in this situation, (citing Pepitone).
“On the other hand, there are situations where the plaintiff is traveling on the superior road and rightfully has the right of way. The defendant is traveling on the inferior road with the missing stop sign and proceeds through the intersection without stopping. As to the innocent plaintiff, courts have been willing to find solidary liability on the part of the negligent driver and the public entity [citation omitted]. The courts reason that if the stop sign had been in its proper place, the driver would have heeded it.

See Wall v. American Employers Ins. Co., supra.

In the present case, plaintiff was traveling on a superior road and would have had the right of way had not the City been negligent. The City, therefore, is liable to plaintiff for damages he suffered as a result of the collision .

Because we find that the City is liable for the damages suffered by plaintiff, we, therefore, must now award those damages. After the accident, plaintiff and his daughter were treated at the emergency room of Charity Hospital. Plaintiff testified that he hurt his back and that he had a cut on his head. He also testified that his daughter’s head was injured.

Plaintiff was under the treatment of Dr. Renaldo Reyes for a period of several months. He testified that he had lower back pain, dizzy spells, headaches and also trouble with his knee as a result of a blow he received to it during the accident. He testified that at the time of the accident he was earning approximately $250.00 a week and was unable to work for about three or four months following the incident.

Plaintiff’s physician testified and his findings supported the statements given by plaintiff.

The total medical expenses as testified to at trial were $971.50. Assuming that plaintiff should be compensated for the three and one-half months which he was unable to work following the accident, his lost wages should be $3,500.00. Based on the testimony contained in the record, we find that a $3,000.00 award for pain and suffering is fair. Plaintiff’s daughter, Lashaun Victor, had to be treated later at Ochsner Hospital. She saw the doctor one time. No other testimony was given as to any pain or disability that she may have suffered. Although the child did not testify at trial and was unable to tell anyone about any pain she might be suffering, it is obvious from the circumstances of the accident that she did suffer some pain. We, therefore, find that an award of $250.00 is sufficient.

For the foregoing reasons, the decision of the trial court dismissing the City of New Orleans is reversed. The City is liable to the plaintiff in the amount of $7,721.50.

REVERSED AND RENDERED.

      . Although the other solidary obligee, Saporito, settled, plaintiff's right to proceed against the City was reserved.


author: BOUTALL, Judge.

text:
    Hilda Cecile Keller, wife of Wilbert Raymond TREGRE v. Wilbert Raymond TREGRE.
    No. 83-CA-532.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 10, 1984.
    Jack Crais, Crais & Wilson, Ltd., Hahn-ville, for Hilda Cecile Keller, wife of Wilbert Raymond Tregre, plaintiff-appellee.
    Leon C. Vial, III, Hahnville, for Wilbert Raymond Tregre, defendant-appellant.
    Before BOUTALL, CURRAULT and GAUDIN, JJ.
   BOUTALL, Judge.

Husband, Wilbert R. Tregre, appeals the trial court’s denial of his motion for new trial on a rule for alimony pendente lite wherein the trial court awarded wife-appel-lee $750.00 per month alimony pendente lite. We affirm.

At the outset, we note that the denial of a motion for new trial is not appeala-ble absent a showing of irreparable injury. La.C.C.P. art. 2083; Taylor v. Taylor, 380 So.2d 176 (La.App. 1st Cir.1979). We find that no showing of irreparable injury has been made.

Nevertheless appellant argues to us that the trial court’s denial of his motion for new trial is decisive of the grounds urged therein, in other words, although appellant has discovered that his estranged wife will allegedly receive additional funds from other sources, the denial of the new trial will bar him from raising this additional evidence.

On the contrary, upon a showing of changed circumstances, appellant has available to him the remedy of moving for a reduction in the alimony pendente lite. Williams v. Williams, 331 So.2d 438 (La. 1976).

Assuming that appellant wished also to appeal the merits of the judgment on the rule, we have reviewed the record and find no abuse of discretion in the trial court’s award to the wife. Appellant’s testimony revealed that he manages the family business and pays himself a gross salary of $3,000.00 per month, plus a bonus of approximately $10,000.00 per year. Appellant has also retained the family home, which is not mortgaged. Mrs. Tregre does not work and at the time of this proceeding lived in a rented apartment. Her monthly expenses, as appear on the expense sheet stipulated into evidence, total $1,089. While Mrs. Tregre has some community funds at her disposal, as well as possibly some separate property, the nature and amounts of those funds do not concern us here. On the evidence presented at the rule the amount awarded to the wife as alimony pendente lite was well within the trial judge’s discretion under La.C.C. art. 148.

Considering the above, the judgment appealed from is affirmed, and appellant is cast for all costs incurred on appeal.

AFFIRMED.


author: BOUTALL, Chief Judge.

text:
    Randolph BUTLER, Sr. v. OVERNITE TRANSPORTATION CO., INC., et al.
    No. 83-CA-602.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 10, 1984.

      Rodney A. Brignac and Robert R. Fau-cheux, Jr., Reserve, for Randolph Butler, Sr., plaintiff-appellee,
    James L. Donovan, Donovan & Lawler, Metairie, for Overnite Transp. Co., Inc., et al., plaintiffs-appellants.
    Before BOUTALL, C.J., and CUR-RAULT and GAUDIN, JJ.
   BOUTALL, Chief Judge.

This appeal arises from a judgment rendered in a worker’s compensation case ordering the employer-appellant to pay certain medical and hospital expenses of its employee under La.R.S. 23:1203 and awarding attorney’s fees for its arbitrary and capricious refusal to pay pursuant to La. R.S. 22:658. We remand for a retrial on competent evidence.

Plaintiff-appellee Randolph Butler allegedly suffered a back injury on June 17, 1982 in the course and scope of his employment with appellant, Overnite Transportation Co., Inc. He filed suit for compensation benefits on September 20, 1982. Appellant and its compensation carrier answered by way of general denial. No benefits were paid to appellee. As a result of a Rule to Show Cause brought by appellee some nine months later, in May of 1983, appellants Overnite Transportation and its compensation carrier were ordered to provide Randolph Butler with all necessary medical care recommended by Mr. Butler’s physician, and further appellants were cast for attorney’s fees of $300 for the bringing of the rule.

The medical care in question would entail Randolph Butler’s hospitalization for various tests and treatment.

At the outset we must address the dismissal of the appeal urged by appellee on the grounds that the judgment appealed from is interlocutory in nature and is not appealable under La.C.C.P. art. 2083 absent a showing of irreparable injury.

As to that portion of the judgment relating to the award of attorneys’ fees under La.R.S. 22:658, we adopt the rationale enunciated in Speeg v. Stewart Title Guaranty, 377 So.2d 589 (La.App. 4th Cir. 1979). Speeg dealt with the appealability of an award of attorneys’ fees and costs in conjunction with a Motion to Compel Discovery, and we find the reasoning therein equally applicable to the award of attorneys’ fees in the case presently before us, namely that:

The judgment in the present case is not a partial final judgment and is not truly an interlocutory judgment, since it does not really decide a preliminary matter in the course of the action. Rather, it is an offshoot from the principal litigation which is “too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated.” [Citation omitted]
Thus, this type of judgment does not fit precisely into the procedural articles relating to appealable judgments. In the federal system this type of judgment has been referred to as a “collateral order”, subject to rules of appealability under the courtmade collateral order doctrine. Under the doctrine this type of judgment is immediately appealable on the basis that the judgment is a final disposition of a claim which is not an ingredient of the principal cause of action, is separable from the merits of the case, and does not require consideration along with the issue relative to the merits.
In the present case there is no valid reason to defer the appeal from the money judgment until a disposition, by compromise or judgment, of the merits of the case. The claim for expenses of the motion to compel is totally unrelated to and independent of the claim asserted on the merits, and disposition of either claim will have no effect whatsoever on the other claim.

Speeg, supra, at 592. Under the rationale enunciated above, it is clear that the award of attorney’s fees in the present case should be and is appealable.

Similarly, that portion of the judgment appealed from ordering appellants to pay for appellee’s medical care is also a collateral issue to the main litigation, in that liability for medical services and care under La.R.S. 23:1203 has no bearing on employer liability in the main demand for disability benefits. The issue in this proceeding is whether the employer furnishes “necessary” medical care for the injury complained of. On the main demand the issue is liability for the occurrence of the injury, the extent of the injury and its relation to inability to work, and unpaid medical expenses for past and future. We would point out several factors which emphasize the unrelated nature of these two separate inquiries. First, the scheme of a separate proceeding relative to liability for medical care prior to trial on the merits is expressly provided for in La.R.S. 23:1314, which states in pertinent part:

1314 Necessary allegations; support for allegations
⅜ ⅜ ⅜: sfc ⅜ ⅜
[T]he question of whether or not such allegations of nonpayment or of failure to render medical attention or failure to furnish medical reports is justified under the facts shall be determined by the court before proceeding with the hearing of the other issues involved.

Secondly, this judgment of which appellants complain is final in the sense that it is determinative of the employer’s liability for medical treatment prior to final disposition of the merits of the case.

Finally, we note by way of analogy, that When an employer voluntarily furnishes medical services to the employee, La.R.S. 23:1204 specifically shields the employer from liability in the main demand by providing that this action, “shall [not] constitute an admission of liability for compensation under this Chapter.”

In accordance with the reasons given above, we hold that a judgment of employer liability under La.R.S. 23:1203 is appeal-able. Accordingly, appellee’s argument to dismiss the appeal is denied.

Turning to the merits of the appeal, appellants first argue that the trial court’s imposition of liability for medical expenses upon them pursuant to La.R.S. 23:1203 was in effect an adjudication of their liability in the main demand, and was an abuse of summary proceedings in that a Rule to Show Cause was substituted for trial of this matter.

Appellants’ argument is simply unsupportable in light of the language in La.R.S. 23:1203. La.R.S. 1203 provides:

1203. Duty to furnish medical expenses; prosthetic devices; other expenses
In every case coming under this Chapter, the employer shall furnish all necessary medical, surgical and hospital services, and medicines, or any non-medical treatment recognized by the laws of this state as legal.
The employer likewise shall furnish to the employee the necessary cost of repair to or the replacement of any prosthetic device damaged or destroyed by accident in the course and scope and arising out of such employment, including but not limited to damage or destruction of eyeglasses, artificial limbs, hearing aids, dentures, or any such prosthetic devices whatsoever.
In addition, the employer shall be liable for the actual expenses reasonable and necessarily incurred by the employee for mileage reasonable and necessarily traveled by the employee in order to obtain the services, medicines, and prosthetic devices which the employer is required to furnish under this Section. [Emphasis supplied].

Our examination of the record convinces us also that the trial judge is not laboring under the misconception that liability for medical expenses equates to liability in the main demand. The trial judge stated in reasons orally assigned:

BY THE COURT:
The Court finds the position of the defendants in this particular case untenable. It would mean that every claim of workman’s compensation would have to go to trial and prove his case before even being entitled to medical treatment.

The trial court’s reasoning is sound, and our review of the record discloses that appellants’ first assignment of error is without merit. Appellants presented no evidence at this Rule. Their position, as argued by counsel, was a general denial of the occurrence of the alleged accident and/or its work related nature, along with the argument discussed above that they could not be liable for medical expenses prior to an adjudication on the merits. Considering that appellants apparently had conducted no investigation of this claim, nor had they requested that appellee be examined by a doctor of their own choosing, their position has no basis in fact.

Appellants rely on the case of Hart-sell v. Hooker Chemical Corporation, 266 So.2d 480 (La.App. 4th Cir.1972) as the legal authority for their position. In Hart-sell, a case on closely similar facts, our brethern of the Fourth Circuit indicated their belief that the trial court must adjudge liability as a prerequisite to ordering an employer to pay for surgery under La. R.S. 23:1203. Considering both the mandatory “shall” language of La.R.S. 23:1203 and the separate proceeding for an inquiry into failure to furnish medical services authorized by La.R.S. 23:1314, as well as considering the humanitarian purposes behind the Workers Compensation Act, as expressed in Wilson v. Ebasco Services, 393 So.2d 1248 (La.1981), we decline to follow Hartsell. For an opinion more closely in accord with the views we express herein, see Kinsey v. Travelers Ins. Co., Inc., 402 So.2d 226 (La.App. 1st Cir.1981).

Appellants’ second assignment of error is that the trial court erred in allowing into evidence a report from appellee’s doctor in lieu of the testimony of that doctor. On this point we concur. The basic issue is whether the treatment is “necessary.” A doctor’s report is hearsay and cannot be used in lieu of testimony to establish the employee’s need for medical services. Jones v. Ledet, 383 So.2d 1308 (La.App. 3rd Cir.1980); Hoffpauir v. Hardware Mutual Casualty Company, 192 So.2d 588 (La.App. 3rd Cir.1966). In the absence of such evidence, plaintiff-appellee has failed to carry his burden of proof under La.R.S. 23:1314.

Accordingly we vacate the judgment appealed from and remand this matter to the trial court for rehearing consistent with the views expressed herein.

JUDGMENT SET ASIDE AND REMANDED.