text:
    STATE of Louisiana ex rel., Clifton BUTLER v. Ross MAGGIO, Jr., Warden Louisiana State Penitentiary.
    No. 83-KH-0847.
    Supreme Court of Louisiana.
    Jan. 27, 1984.
   In re Clifton Butler, applying for writ of review and supervisory, Parish of Vernon, Nos. 33787 and 35852.

Denied.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Louisiana ex rel., Robert L. HEWITT v. STATE of Louisiana.
    No. 83-KH-0887.
    Supreme Court of Louisiana.
    Jan. 27, 1984.
   In re Robert L. Hewitt, applying for remedial writs, Parish of DeSoto, No. 35275.

Denied.


text:
    STATE of Louisiana, ex rel., Rene DAIRIES v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 83-KH-0899.
    Supreme Court of Louisiana.
    Jan. 27, 1984.
   In re Rene Dairies, applying for writs of habeas corpus, certiorari, prohibition and mandamus, Orleans Parish Criminal District Court, No. 251-456.

Denied.


text:
    STATE of Louisiana, ex rel. Mack Lee PAYNE v. Donald R. GUILLORY, Warden.
    No. 83-KH-0906.
    Supreme Court of Louisiana.
    Jan. 27, 1984.
   In re Mack Lee Payne, applying for writ of review, Parish of Iberia, No. 32731.

Denied.


text:
    STATE ex rel. Otis F. HENRY v. CLERK OF COURT, 22ND JUDICIAL DISTRICT COURT.
    No. 83-KH-1418.
    Supreme Court of Louisiana.
    Jan. 27, 1984.
   In re Otis F. Henry, applying for remedial writ, Parish of Washington, 22nd Judicial District Court, No. 34126.

Denied. The transcript of the Boykin hearing cannot be found in the district court, nor can the reporter’s notes.


text:
    STATE of Louisiana v. Jerrell BYRD.
    No. 83-KK-1523.
    Supreme Court of Louisiana.
    Jan. 27, 1984.
   In re Jerrell Byrd, applying for writs of certiorari, prohibition and mandamus, to the Thirtieth Judicial District Court, No. 37359; Parish of Vernon, Third Circuit Court of Appeal, No. K83-384.

Denied.


text:
    STATE of Louisiana ex rel., Salvadore BROCATO v. Hon. Louis DESONIER, Jr., Judge and Clerk of Court, et al. 24th JDC.
    No. 83-KH-2432.
    Supreme Court of Louisiana.
    Jan. 27, 1984.
   In re Salvadore Brocato, applying for writ of mandamus from the Twenty-fourth Judicial District Court, Parish of Jefferson, No. 80-2301.

Denied. Moot.


text:
    STATE of Louisiana v. Winston L. KALTENBACH.
    No. 83-KD-2568.
    Supreme Court of Louisiana.
    Jan. 27, 1984.
   In re Winston L. Kaltenbach, applying for writ of certiorari, prohibition, mandamus, and stay order, City Court of Lafayette, No. CT-83-20915.

Denied.


text:
    STATE of Louisiana ex rel. Ronald BONNETT v. 19TH JUDICIAL DISTRICT COURT EAST BATON ROUGE PARISH.
    No. 83-KH-2581.
    Supreme Court of Louisiana.
    Jan. 27, 1984.
   In re Ronald Bonnett, applying for writ of mandamus from the Nineteenth Judicial District Court, Parish of East Baton Rouge.

Denied. The commissioner has scheduled a hearing for February 1, 1984.


text:
    STATE ex rel. Jack Ramsey TURNER v. Mike CANNON, Clerk of Court East Baton Rouge, 19th JDC.
    No. 83-KH-2582.
    Supreme Court of Louisiana.
    Jan. 27, 1984.
   In re Jack Ramsey Turner, applying for writ of mandamus, from the 19th Judicial District Court, Parish of East Baton Rouge.

Denied. The district court has no record of relator’s having filed his habeas petition there. Relator should forward his petition to the district court again, in order to have it considered there.


text:
    STATE of Louisiana ex rel. Carl Edward POOLE v. TWENTIETH JUDICIAL DISTRICT COURT, PARISH OF WEST FELICIANA.
    No. 83-KH-2590.
    Supreme Court of Louisiana.
    Jan. 27, 1984.
   In re Carl Edward Poole, applying for writ of mandamus, from the Twentieth Judicial District Court, Parish of West Felici-ana, Nos. 11004-A, 73-5-219, 75-4-219, 75-4-207, and 75-4-208.

Denied. Moot.


text:
    STATE of Louisiana ex rel., Aubrey THOMPSON v. Judge Thomas J. MALIK.
    No. 83-KH-2600.
    Supreme Court of Louisiana.
    Jan. 27, 1984.
   In re Aubrey Thompson, applying for writ of mandamus or prohibition from the Twenty-ninth Judicial District Court, Parish of St. John the Baptist, No. 136-80.

Denied. Relator’s complaints about the appointed lawyer are properly addressed to the trial judge’s supervision.


text:
    In re the Civil Service Appeal of Audrey C. KENNEDY (DHHR, Office Charity Hospital of Louisiana at New Orleans).
    No. 83-C-2601.
    Supreme Court of Louisiana.
    Jan. 27, 1984.
   In re Audrey C. Kennedy, applying for writ of certiorari from the First Circuit Court of Appeal, No. 83 CA 1020, and 83 CA 0121, Civil Service Commission Nos. 2649, 2685.

Denied.


text:
    FRED H. MORAN CONSTRUCTION CORPORATION v. Hameed A. ELNAGGER and Kathleen Jordan Elnaggar.
    No. 83-C-2617.
    Supreme Court of Louisiana.
    Jan. 27, 1984.
   In re Fred H. Moran, applying for writ of review, from the First Circuit Court of Appeal, No. 83 CA 0000, Parish of East Baton Rouge, to the Nineteenth Judicial District Court, No. 259254.

Denied.


text:
    STATE of Louisiana, ex rel., Willie Louis VEAL v. CLERK OF COURT, 9TH JDC PARISH OF RAPIDES, ALEXANDRIA, LA.
    No. 83-KH-2637.
    Supreme Court of Louisiana.
    Jan. 27, 1984.
   In re Willie Louis Veal, applying for remedial writs, Parish of Rapides, No. 159,-393, 9th Judicial District Court.

Denied.


text:
    STATE of Louisiana ex rel. Walter W. WEST v. Wayne McELVEEN, Criminal Sheriff Parish of Calcasieu, Lake Charles Louisiana.
    No. 83-KH-2662.
    Supreme Court of Louisiana.
    Jan. 27, 1984.
   In re Walter W. West, applying for writ of mandamus from the Fourteenth Judicial District Court, Parish of Calcasieu, No. 2977-79.

Denied.


text:
    STATE of Louisiana ex rel., Albert DAWSON v. CLERK OF COURT, 13TH JDC.
    No. 84-KH-0015.
    Supreme Court of Louisiana.
    Jan. 27, 1984.
   In re Albert Dawson, applying for remedial writs from the Thirteenth Judicial District Court, Parish of Evangeline, No. 14106.

Denied.


text:
    STATE of Louisiana, ex rel. Melvin CROCHET v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 84-KH-0052.
    Supreme Court of Louisiana.
    Jan. 27, 1984.
   In re Melvin Crochet, applying for Supervisory Writs, 17th Judicial District Court, Lafourche Parish.

Denied.


text:
    STATE of Louisiana ex rel., Jerome Ike JEFFERSON v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 84-KH-0059.
    Supreme Court of Louisiana.
    Jan. 27, 1984.
   In re Jerome Ike Jefferson, applying for writ of mandamus, from the Criminal District Court, Parish of Orleans, No. 228-680.

Denied.


text:
    STATE of Louisiana ex rel. Milton STEVENS v. Charles E. FOTI, Jr., Sheriff.
    No. 84-KH-0062.
    Supreme Court of Louisiana.
    Jan. 27, 1984.
   In re Milton Stevens, applying for remedial writ from the Criminal District Court, Division I, No. 277-793, Parish of Orleans.

Denied. Appeal pending.


text:
    STATE of Louisiana ex rel. Matthew L. EDMONSON v. 26TH JUDICIAL DISTRICT COURT & Bossier Parish District Attorney Henry Brown.
    No. 84-KH-0112.
    Supreme Court of Louisiana.
    Jan. 27, 1984.
   In re Matthew L. Edmonson, applying for remedial writ from the Twenty Sixth Judicial District Court, No. 16163-KH, Parish of Bossier.

Denied.


text:
    Raymond J. LIGHTELL v. STATE FARM INSURANCE CO., Charles Overson and Liberty Mutual Insurance Company.
    No. 84-CC-0151.
    Supreme Court of Louisiana.
    Jan. 27, 1984.
   In re Raymond J. Lighted, applying for writs of certiorari, prohibition and mandamus to the Civil District Court, No. 83-10615, Division C; Fourth Circuit Court of Appeal, Parish of Orleans, No. C-1588.

Denied.


text:
    STATE of Louisiana ex rel. William Dewey THURMAN v. Ross MAGGIO, Jr., Warden Louisiana State Penitentiary.
    No. 83-KH-2519.
    Supreme Court of Louisiana.
    Jan. 27, 1984.
   In re William Dewey Thurman, applying for reconsideration of denied writ of January 6, 1984, 443 So.2d 1117, from the Parish of East Baton Rouge, 19th Judicial District Court, Number 6-78-271.

Reconsideration denied. Petitioner’s 4V2 year sentence and his 6 year sentence are for two different offenses. The sentence for the first offense is not vacated when one is sentenced as a multiple offender for a second offense.


text:
    STATE of Louisiana v. Ernest EDWARDS, Jr.
    No. 84-KK-0195.
    Supreme Court of Louisiana.
    Jan. 27, 1984.
   In re Ernest Edwards, Jr., applying for writs of certiorari, prohibition, mandamus and for stay order, to the Second Judicial District Court, Parish of Jackson, Nos. 22223 and 22224, from the Second Circuit Court of Appeal, No. 16239-KW.

Denied.


text:
    STATE of Louisiana v. Ronald E. QUETANT.
    No. 84-KK-0235.
    Supreme Court of Louisiana.
    Feb. 1, 1984.
   In re Ronald E. Quetant, applying for a supervisory writ to the Twenty-Fourth Judicial District Court, Parish of Jefferson No. 83-3277, from the Fifth Circuit Court of Appeal, No. 84-K-52.

Proceedings stayed until 10:30 AM Thursday, February 2 and until this Court acts on relator’s writ application.

MARCUS and WATSON, JJ., dissent from the stay.


text:
    Arthur W. STURGEON Aetna Casualty and Surety Company v. STRACHAN SHIPPING COMPANY v. BANKERS AND SHIPPERS INSURANCE COMPANY OF NEW YORK.
    No. 84-CQ-0030.
    Supreme Court of Louisiana.
    Feb. 3, 1984.
   In re Certification from the United States Court of Appeals Fifth Circuit No. 82-3229, 721 F.2d 144 (1983).

Certification denied.

DIXON, C.J., would grant and answer both questions with “No.”


text:
    Thelma E. FOGLEMAN and Perry H. Fogleman v. ROY O. MARTIN INDUSTRIES, INC. and Louisiana Pacific Corporation.
    No. 83-C-2657
    Supreme Court of Louisiana.
    Feb. 3, 1984.
   In re Perry H. Fogleman, applying for writ of certiorari or review, to the Court of Appeal, Third Circuit, No. 83-149; Parish of St. Landry, Twenty-Seventh Judicial District Court, No. 82634-2.

Case below: 432 So.2d 1197, 440 So.2d 954.

Denied.

MARCUS, J., would grant the writ.


text:
    AGUILLARD’S ENTERPRISES, INC. v. David SMITH, et als.
    No. 83-C-2598.
    Supreme Court of Louisiana.
    Feb. 3, 1984.
   In re David Smith, et als., applying for reconsideration of denied writ of January 27, 1984, 444 So.2d 1224, to the Fourth Circuit Court of Appeal, No. CA-0684; Civil District Court, No. 82-10721, Parish of Orleans.

Case below: 439 So.2d 1158.

Not considered. Judgment is definitive.


text:
    STATE of Louisiana v. Mark Damon BURNS.
    No. 84-K-0009.
    Supreme Court of Louisiana.
    Feb. 3, 1984.
   In re Mark Damon Burns, applying for a writ of certiorari to the Second Circuit Court of Appeals Nos. 15600-KA and 15601-KA, from the Eleventh Judicial District Court, Parish of DeSoto Nos. 47707 and 48634.

Case below: 442 So.2d 1195, 442 So.2d 1197.

Denied.


text:
    Thelma E. FOGLEMAN and Perry H. Fogleman v. ROY O. INDUSTRIES, INC. and Louisiana Pacific Corporation.
    No. 84-C-0024.
    Supreme Court of Louisiana.
    Feb. 3, 1984.
   In re Roy 0. Martin Industries, Inc. and Louisiana Pacific Corporation, applying for writ of certiorari, or writ of Review, to the Court of Appeal, Third Circuit, Number 83-149; to the Parish of St. Landry, 27th Judicial District Court, No. 82634-2.

Case below: 432 So.2d 1197, 440 So.2d 954.

Denied.


text:
    STATE of Louisiana ex rel. Darrell TAYLOR v. Ross MAGGIO, Jr., Warden Louisiana State Penitentiary.
    No. 84-KH-0164.
    Supreme Court of Louisiana.
    Feb. 3, 1984.
   In re Darrell Taylor, applying for writ of habeas corpus from the Criminal District Court, Section “F”, No. 241-109, Parish of Orleans.

Denied.


text:
    STATE of Louisiana ex rel. Charles E. MARSHALL, v. Arthur J. PLANCHARD, District Court Judge.
    No. 84-KH-0170.
    Supreme Court of Louisiana.
    Feb. 3, 1984.
   In re Charles E. Marshall, applying for writ of mandamus to the Fourteenth Judicial District Court, Parish of Calcasieu, No. 1914-80.

Denied.


text:
    STATE of Louisiana v. Samuel Lee HAMILTON.
    No. 84-KH-0196.
    Supreme Court of Louisiana.
    Feb. 3, 1984.
   In re Samuel Lee Hamilton, applying for remedial writ, to the 19th Judicial District Court, Parish of East Baton Rouge.

Denied.


text:
    STATE of Louisiana ex rel. Johnny TAYLOR, Jr. v. Ross MAGGIO, et al.
    No. 84-KP-0221.
    Supreme Court of Louisiana.
    Feb. 3, 1984.
   In re Johnny Taylor, Jr., applying for writ of certiorari, prohibition, mandamus, stay order and stay of execution, to the 24th Judicial District Court, Parish of Jefferson, No. 80-2388.

Denied.

See also, 446 So.2d 741.


text:
    Michael Denman MUIRHEAD v. TRANSWORLD DRILLING COMPANY, et al.
    No. 84-CC-0032.
    Supreme Court of Louisiana.
    Feb. 3, 1984.
   In re Michael Denman Muirhead, applying for supervisory writ, and stay order to the Thirty-Eighth Judicial District Court, Parish of Cameron, No. 7745, from the Third Circuit Court of Appeal, No. 83-1023.

Denied. Relator is given 10 days in which to elect between a remittitur and a new trial.

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


text:
    STATE of Louisiana ex rel. Rudolph MARTIN v. Edwin A. LOMBARD, Clerk Criminal District Court Parish of Orleans John M. Lawrence Attorney at Law Indigent Defender Board.
    No. 84-KH-0072.
    Supreme Court of Louisiana.
    Feb. 3, 1984.
   In re Rudolph Martin, applying for remedial writ to the Fourth Circuit Court of Appeal, No. K-1550, from Criminal District Court, Parish of Orleans, No. 273-941.

Denied.


text:
    STATE of Louisiana ex rel. Earl TRUVIA v. CRIMINAL DISTRICT COURT PARISH OF ORLEANS.
    No. 84-KH-0079.
    Supreme Court of Louisiana.
    Feb. 3, 1984.
   In re Earl Truvia, applying for writ of mandamus, to the Criminal District Court, Parish of Orleans, No. 252-514.

Denied.


text:
    STATE of Louisiana ex rel. Joseph THOMPSON v. Hon. Frank J. SHEA, Judge.
    No. 84-KH-0105.
    Supreme Court of Louisiana.
    Feb. 3, 1984.
   In re Joseph Thompson, applying for writ of mandamus from the Criminal District Court, No. 268-238, Parish of Orleans.

Denied.


text:
    STATE of Louisiana ex rel., Ray T. WOODALL, Jr. v. Hon. Jim McKAY, Jr., Judge, Criminal District Court, Parish of Orleans.
    No. 84-KH-0115.
    Supreme Court of Louisiana.
    Feb. 3, 1984.
   In re Ray T. Woodall, Jr., applying for remedial writs, from the Criminal District Court, Parish of Orleans, No. 259-043.

Denied.


text:
    Glenn FAUCHEUX v. HOOKER CHEMICAL CORPORATION.
    No. 84-C-0132.
    Supreme Court of Louisiana.
    Feb. 3, 1984.
   In re Glenn Faucheux, applying for cer-tiorari, or writ of review, to the Court of Appeal, Fifth Circuit, No. 83-CA-466; 29th Judicial District Court, Parish of St. Charles, No. 22098.

Case below: 440 So.2d 1377.

Denied.


text:
    STATE of Louisiana ex rel. Reginald AMBROSE—DOC # 86862 v. Mr. Ross MAGGIO, Jr., Warden Louisiana State Penitentiary.
    No. 84-KH-0162.
    Supreme Court of Louisiana.
    Feb. 3, 1984.
   In re Reginald Ambrose, applying for remedial writs from the Criminal District Court, No. 257-866; Parish of Orleans, Section “E”.

Denied.


text:
    Earl BROOKS and Jessie Brooks v. STATE of Louisiana, Through DEPARTMENT OF CORRECTIONS, John King, Archie Parker, Ross Maggio, H.D. Byargeon, Landry Mayeaux, Thomas Joseph, Lamar Johnson, Ricky Fabre, John B. Joseph, and John Does, Nos. 1-4.
    No. 84-CC-0002.
    Supreme Court of Louisiana.
    Feb. 3, 1984.
   In re State of Louisiana, Through Department of Corrections, et al., applying for supervisory writs, 19th Judicial District Court, Parish of East Baton Rouge, No. 262151; Court of Appeal, First Circuit, No. CW-83-1299.

Denied.

MARCUS, J., would grant the writ.


text:
    STATE of Louisiana v. James Russell STANFORD.
    No. 84-K-0004.
    Supreme Court of Louisiana.
    Feb. 3, 1984.
   In re James Russell Stanford, applying for writs of certiorari and review to the Second Circuit Court of Appeal, No. 15602-KA, from the Thirty-Ninth Judicial District Court Parish of Red River.

Denied.


text:
    Wanda L. DARNELL v. THOMAS, THOMAS AND THOMAS, A Partnership Consisting of Louis E. Thomas, Warren L. Thomas & Julia Thomas Spalding, & Quality Capri, Inc.
    No. 84-CC-0007.
    Supreme Court of Louisiana.
    Feb. 3, 1984.
   In re Wanda L. Darnell, applying for remedial writ to the Civil District Court, Parish of Orleans, No. 72-18370, Division “B”; Fourth Circuit Court of Appeal, No. C-1571.

Denied.

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


text:
    STATE of Louisiana v. Jack MAYWEATHER.
    No. 84-K-0008.
    Supreme Court of Louisiana.
    Feb. 3, 1984.
   In re Jack May weather, applying for cer-tiorari, or writ of review, to the Court of Appeal, Second Circuit, No. 15610-KA; 11th Judicial District Court, Parish of De-Soto, No. 48617.

Case below: 441 So.2d 434.

Denied.


text:
    Ann L. SOUTHERN v. Iris SARTAIN.
    No. 84-C-0010.
    Supreme Court of Louisiana.
    Feb. 3, 1984.
   In re Ann L. Southern, applying for writ of certiorari, or writ of review, to the Court of Appeal, Second Circuit, No. 15894-CA; Parish of Caddo, 1st Judicial District Court, No. 297-622.

Denied.


text:
    Sam L. SMART, et al. v. Homer WOODARD, et al.
    No. 84-C-0012.
    Supreme Court of Louisiana.
    Feb. 3, 1984.
   In re Sam L. Smart, et al., applying for writ of certiorari, or review to the Second Circuit Court of Appeal, No. 15813-CA, from the Second Judicial District Court, Parish of Bienville, No. 26968.

Case below: 441 So.2d 460.

Denied.

DIXON, C.J., would grant the writ.


author: LEMMON, J.,

text:
    Walter HARRIS v. Louella Ross JACKSON, et al.
    No. 84-0C-0020.
    Supreme Court of Louisiana.
    Feb. 3, 1984.
   In re Louella Ross Jackson, et al., applying for writ of certiorari and/or review to the First Circuit Court of Appeal, Nos. 83-CM-0656 and 83-CA-0853; 21st Judicial District Court, Parish of Tangipahoa, No. 60374, Division “E”.

Case below: 439 So.2d 1120.

Denied.

LEMMON, J.,

concurs, disagreeing that notice of the denial of new trial was not required. However, notice was provided to relator’s attorney of record.


text:
    STATE of Louisiana v. Gerald JOHNSON.
    No. 83-K-2656.
    Supreme Court of Louisiana.
    Feb. 3, 1984.
    Reconsideration Denied March 9, 1984.
   In re Gerald Johnson, applying for writ of certiorari from the Third Circuit Court of Appeal, No. CR 83-175, Parish of Avo-yelles, . to the Twelfth Judicial District Court, No. 49913.

Case below: 440 So.2d 197.

Denied.


text:
    MISSISSIPPI RIVER TRANSMISSION CORPORATION v. George B. SIMONTON, Sheriff and Ex-Officio Tax Collector, Lincoln Parish, Louisiana.
    No. 83-C-2659.
    Supreme Court of Louisiana.
    Feb. 3, 1984.
   In re Mississippi River Transmission Corporation, applying for writ of certiorari or review, to the Second Circuit Court of Appeal, No. 15788-CA; Third Judicial District Court, Parish of Lincoln, No. 28347.

Case below: 442 So.2d 764.

Denied.

DIXON, C.J., and MARCUS, J., would grant the writ.


text:
    STATE of Louisiana v. Wallace ANDERSON.
    No. 83-K-2660.
    Supreme Court of Louisiana.
    Feb. 3, 1984.
   In re Wallace Anderson, applying for writ of review, certiorari, prohibition, and mandamus, to the Third Circuit Court of Appeal, No. 82-821; Fourteenth Judicial District Court, Parish of Calcasieu, No. 2038-82.

Case below: 440 So.2d 205.

Denied.


text:
    STATE of Louisiana v. Theron Emory MAGERS.
    No. 84-KK-0001.
    Supreme Court of Louisiana.
    Feb. 3, 1984.
   In re Theron Emory Magers, applying for writ of certiorari to the Tenth Judicial District Court, Parish of Natchitoches, No. 78569, from the Third Circuit Court of Appeal, No. K-83-916.

Denied.

DENNIS, J., concurs in the denial because the application was untimely filed.


text:
    STATE of Louisiana v. Fred FRANKLIN and Rose C. Franklin.
    No. 83-K-2639.
    Supreme Court of Louisiana.
    Feb. 3, 1984.
   In re Fred and Rose C. Franklin, applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, No. CR-82-658; 30th Judicial District Court, Parish of Vernon, No. 33809.

Case below: 440 So.2d 223.

Denied.


text:
    Thomas L. McREYNOLDS v. Susan A. KRUSE, et al.
    No. 83-C-2641.
    Supreme Court of Louisiana.
    Feb. 3, 1984.
   In re Thomas L. McReynolds, applying for writ of review to the First Circuit Court of Appeal, No. 83-CA-0002, from the Nineteenth Judicial District Court, Parish of East Baton Rouge, No. 254004, Division H.

Case below: 440 So.2d 791.

Denied.


text:
    Debra A. FROMENTHAL, Individually and as Tutrix of the Estate of Her Minor Son, Thaddus Fromenthal v. Steve CLARK, Individually and as Administrator of the Estate of His Minor Child Shawn Clark, et al.
    No. 83-C-2650.
    Supreme Court of Louisiana.
    Feb. 3, 1984.
   In re Debra S. Fromenthal, et al., applying for writ of certiorari, or writ of review, to the Court of Appeal, First Circuit, No. 83-CA-0148; Parish of St. Mary, 16th Judicial District Court, No. 65338.

Case below: 442 So.2d 608.

Denied.


text:
    STATE of Louisiana v. Leslie BURNS.
    No. 83-K-2626.
    Supreme Court of Louisiana.
    Feb. 3, 1984.
   In re Leslie Burns, applying for writ of certiorari, from the First Circuit Court of Appeal, No. 83 KA 0344, Parish of East Baton Rouge, to the 19th Judicial District Court, No. 582387.

Case below: 441 So.2d 1294.

Denied.


text:
    Henry E. JOHNSON, Jr. v. Earle E. BLANCHARD.
    No. 83-C-2629.
    Supreme Court of Louisiana.
    Feb. 3, 1984.
   In re Earle E. Blanchard, applying for writ of review or certiorari, to the First Circuit Court of Appeal, No. 83 CA 0129; Parish of Iberville, Eighteenth Judicial District Court, No. 28305.

Denied.

CALOGERO, J., would grant the writ.


text:
    Bennett RAYFORD and Rosalee Rayford v. SAIA MOTOR FREIGHT LINES, INC., et al.
    No. 83-C-2630.
    Supreme Court of Louisiana.
    Feb. 3, 1984.
   In re Bennett Rayford and Rosalee Ray-ford, applying for writ of certiorari or review to the First Circuit Court of Appeal, No. 83-CA-0091; Twentieth Judicial District Court, Parish of West Feliciana, No. 7728.

Case below: 442 So.2d 548.

Denied.


text:
    STATE of Louisiana v. Gilbert BANKS.
    No. 84-K-0005.
    Supreme Court of Louisiana.
    Feb. 3, 1984.
   In re Gilbert Banks, applying for writ of review to the First Circuit Court of Appeal, No. 83-KA-0952; 17th Judicial District Court, Parish of Lafourche, No. 134773.

Granted in part. Although the Court of Appeal correctly ruled that defendant did not have the right of appeal under the circumstances, the Court should have treated defendant’s timely appeal as an application for a writ of review and allowed defendant an appropriate period of time to file a brief in support of the application. Accordingly, the case is remanded to the Court of Appeal with instructions to review the conviction under La.C.Cr.P. art. 912.-1(C). Otherwise, the application is denied.


text:
    Joe John NICOLOSI, Administrator of the Estate of Patricia Ann Nicolosi v. LIVINGSTON PARISH SCHOOL BOARD, et al.
    No. 83-C-2632.
    Supreme Court of Louisiana.
    Feb. 3, 1984.
   In re Joe John Nicolosi, applying for writ of certiorari, to the First Circuit Court of Appeal, No. 83-CA-0200; Twenty-First Judicial District Court, Parish of Livingston, No. 32077.

Case below: 441 So.2d 1261.

Denied.


text:
    BRUMFIELD WRECKER SERVICE, INC. d/b/a Tiger Towing Company: Marvin L. Mobley d/b/a Thornhill Wrecker Service and Insurance Storage Pool, Inc. v. CITY OF BATON ROUGE, Parish of East Baton Rouge, Patrick Screen, In His Capacity as Mayor-President: Jimmy Kilshaw, In His Capacity as Purchasing Agent.
    No. 83-C-2633.
    Supreme Court of Louisiana.
    Feb. 3, 1984.
   In re Brumfield Wrecker Service, Inc. d/b/a Tiger Towing Company: Marvin L. Mobley d/b/a Thornhill Wrecker Service and Insurance Storage Pool, Inc., applying for writ of certiorari, to the First Circuit Court of Appeal, No. 83-CA-0146, from the Nineteenth Judicial District Court, Parish of East Baton Rouge, No. 261454.

Case below: 442 So.2d 603.

Denied.


text:
    STATE of Louisiana v. Simon SMITH, Jr.
    No. 83-KH-2635.
    Supreme Court of Louisiana.
    Feb. 3, 1984.
   In re Simon Smith, Jr., applying for writ of mandamus to the Seventh Judicial District Court Parish of Concordia, No. 79-0689.

Denied. Moot.


text:
    CHEVRON, U.S.A. v. Lorraine LORIO, et al.
    No. 83-C-2605.
    Supreme Court of Louisiana.
    Feb. 3, 1984.
   In re Lorraine Lorio, and the State of Louisiana, applying for writ of certiorari to the First Circuit Court of Appeal, No. 82 CA 1068; Parish of East Baton Rouge, Nineteenth Judicial District Court, No. 15525.

Case below: 442 So.2d 1157.

Denied.

WATSON, J., would grant the writ.


text:
    Patricia Ford O’BRIEN, et al. v. DELTA GAS, INC., et al.
    No. 83-CC-2610.
    Supreme Court of Louisiana.
    Feb. 3, 1984.
   In re Patricia Ford O’Brien, et al., applying for writ of certiorari and review, to the Court of Appeal, Fourth Circuit, No. C-1486; Civil District Court, Parish of Orleans, No. 80-5067.

Case below: 441 So.2d 802.

Denied.

CALOGERO, DENNIS and LEMMON, JJ., would grant the writ.


text:
    STATE of Louisiana v. Jessie BELL.
    No. 83-K-2623.
    Supreme Court of Louisiana.
    Feb. 3, 1984.
   In re Jessie Bell, applying for writs of certiorari, prohibition, mandamus and review, to the Court of Appeal, First Circuit, No. 83 KA 0432; Parish of East Baton Rouge, Nineteenth Judicial District Court, No. 10-80-36.

Case below: 442 So.2d 715.

Denied.

CALOGERO, J., would grant the writ.


text:
    Morris BANKS v. CARL OTT POLES AND PILING, INC. and Georgia Casualty and Surety Company.
    No. 83-C-2624.
    Supreme Court of Louisiana.
    Feb. 3, 1984.
   In re Carl Ott Poles and Piling, Inc., et al., applying for writ of certiorari or review, to the First Circuit Court of Appeal, No. 83 CA 0021; Parish of East Baton Rouge, Nineteenth Judicial District Court, No. 65686-B.

Case below: 440 So.2d 803.

Denied.


text:
    STATE of Louisiana v. Rubin WADE.
    No. 83-K-2625.
    Supreme Court of Louisiana.
    Feb. 3, 1984.
   In re Rubin Wade, applying for writ of certiorari or review, to the First Circuit Court of Appeal, No. 83-KA-0206; Nineteenth Judicial District Court, Parish of East Baton Rouge, No. 11-81-270.

Case below: 442 So.2d 681.

Denied.


text:
    J.R. HAGBERG, d/b/a, Jim Jackson Contractor v. JOHN BAILEY CONTRACTOR, and R.L. Abshire Construction, Inc. (A Joint Venture) and Trinity Universal Insurance Company.
    No. 83-C-1957.
    Supreme Court of Louisiana.
    Feb. 3, 1984.
   In re J.R. Hagberg, d/b/a, Jim Jackson Contractor, applying for writ of certiorari and/or review to the Third Circuit Court of Appeal, No. 82-753; Parish of Calcasieu, 14th Judicial District Court, No. 81-3504.

Case below: 435 So.2d 580.

Denied.


text:
    J.R. HAGBERG, d/b/a Jim Jackson Contractor v. JOHN BAILEY CONTRACTOR and R.L. Abshire Construction Inc., A Joint Venture, Trinity Universal Insurance Company.
    No. 83-C-1972.
    Supreme Court of Louisiana.
    Feb. 3, 1984.
   In re John Bailey Contractor and R.L. Abshire Construction Inc., A Joint Venture, Trinity Universal Insurance Company, applying for writ of certiorari and/or review to the Third Circuit Court of Appeal, No. 82-753, Parish of Calcasieu; 14th Judicial District Court, No. 81-3504.

Case below: 435 So.2d 580.

Denied.


text:
    STATE of Louisiana ex rel. Paul J. LaCOSTE v. Ross MAGGIO, Warden.
    No. 83-KH-2115.
    Supreme Court of Louisiana.
    Feb. 3, 1984.
   In re Paul J. LaCoste, applying for writ of habeas corpus, to the Criminal District Court, Parish of Orleans, No. 200-274.

Denied.


text:
    STATE of Louisiana, ex rel., Albert SOUBLET v. Frank J. SHEA, Judge.
    No. 83-KH-2300.
    Supreme Court of Louisiana.
    Feb. 3, 1984.
   In re Albert Soublet, applying for writ of mandamus, Parish of Orleans, No. 268-481.

Denied.


text:
    John SHOWERS a/k/a John Shavers v. STATE of Louisiana, CRIMINAL DISTRICT COURT, PARISH OF ORLEANS.
    No. 83-KH-2404.
    Supreme Court of Louisiana.
    Feb. 3, 1984.
   In re John Showers, applying for writ of mandamus from the Criminal District Court, Parish of Orleans, No. 293-236.

Denied. The district court has no record of having received relator’s motion. Relator should refile his motion in the district court.


text:
    STATE of Louisiana ex rel., Romaliee C. McGHEE, Sr. v. Charles C. FOTI, Jr. Sheriff, et al.
    No. 83-KH-2539.
    Supreme Court of Louisiana.
    Feb. 3, 1984.
   In re Romaliee C. McGhee, Sr., applying for writ of mandamus to the Criminal District Court, Parish of Orleans, No. 273-277.

Denied.


text:
    SAFECO INSURANCE COMPANY OF AMERICA v. Lesley PALERMO.
    No. 83-CC-2564.
    Supreme Court of Louisiana.
    Feb. 3, 1984.
   In re Lesley Palermo, applying for supervisory writ to' the First Circuit Court of Appeal, No. CW/83/1291; Twenty-First Judicial District Court, Parish of Pointe Cou-pee, No. 17319.

Denied.

MARCUS, DENNIS and BLANCHE, JJ., would grant the writ.


text:
    STATE of Louisiana, Through the DEPARTMENT OF HIGHWAYS v. LULING INDUSTRIAL PARK, INC. and St. Charles Holding, Inc.
    No. 83-C-2573.
    Supreme Court of Louisiana.
    Feb. 3, 1984.
   In re State of Louisiana, Through the Department of Highways, applying for writ of certiorari or review to the Fifth Circuit Court of Appeal, Nos. 5-61 and 5-180, from the Twenty-Ninth Judicial District Court, Parish of St. Charles No. 14633.

Case bélow: 443 So.2d 672.

Denied.

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


text:
    STATE of Louisiana, ex rel. Lawrence ADAMS, Jr. v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 83-KH-1159.
    Supreme Court of Louisiana.
    Feb. 3, 1984.
   In re Lawrence Adams, Jr., applying for remedial writs, Orleans Parish Criminal District Court, No. 251-468.

Denied.


text:
    STATE of Louisiana ex rel., John ROBINSON v. N. Burl CAIN/Warden Alvin V. Oser/Judge Criminal District Court Parish of Orleans.
    No. 83-KH-0928.
    Supreme Court of Louisiana.
    Feb. 3, 1984.
   In re John Robinson, applying for writ of mandamus, Parish of Orleans, No. 292-210.

Denied. Moot.


text:
    STATE of Louisiana ex rel., Janet L. BRACY v. Hon. Ted R. BROYLES, Judge, 30th Judicial District Court, Division “B”, Parish of Vernon.
    No. 83-KH-0924.
    Supreme Court of Louisiana.
    Feb. 3, 1984.
   In re Janet L. Bracy, applying for writ of certiorari and review, 30th Judicial District Court, Parish of Vernon, No. 35725-A.

Denied.


text:
    STATE of Louisiana, ex rel. Thomas Ray JACKSON v. John McGOUGAN, Warden.
    No. 83-KH-0907.
    Supreme Court of Louisiana.
    Feb. 3, 1984.
   In re Thomas Ray Jackson applying for writ of habeas corpus, Parish of Ouachita, 4th Judicial District Court, No. 40275.

Denied.


text:
    STATE of Louisiana, ex rel. Ernest L. DANIELS v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 83-KH-0900.
    Supreme Court of Louisiana.
    Feb. 3, 1984.
   In re Ernest L. Daniels, applying for remedial writs, Orleans Parish, Criminal District Court, No. 247-362.

Denied.


text:
    STATE of Louisiana, ex rel. Allen CROSBY v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 83-KH-0893.
    Supreme Court of Louisiana.
    Feb. 3, 1984.
   In re Allen Crosby, applying for writ of habeas corpus, Orleans Parish, Criminal District Court, No. 271-972.

Denied.


text:
    STATE of Louisiana ex rel. Darrell JACKSON v. Warren E. HOOD, Judge 14th JDC.
    No. 84-KH-0088.
    Supreme Court of Louisiana.
    Feb. 3, 1984.
   In re Darrell Jackson, applying for writ of mandamus, to the Fourteenth Judicial District Court, Parish of Calcasieu, Nos. 10736-79 and 4697-82.

Granted in part and denied in part. The trial court is ordered to furnish relator with a copy of his Boykin transcript. Relator’s application for an out of time appeal is denied.


text:
    STATE of Louisiana v. Lawrence J. MILLER, Jr.
    No. 84-KK-0011.
    Supreme Court of Louisiana.
    Feb. 3, 1984.
   In re Lawrence J. Miller, Jr., applying for writ of certiorari to the First Circuit Court of Appeal, No. KW/83/1303; Parish of Iberville, 18th Judicial District Court, No. 1905-83.

Not considered; not timely filed.


text:
    STATE of Louisiana v. William L. LALANNE.
    No. 84-KH-0128.
    Supreme Court of Louisiana.
    Feb. 3, 1984.
   In re William L. Lalanne, applying for writs of certiorari, prohibition, or mandamus, from the Fourteenth Judicial District Court, Parish of Calcasieu, No. RC2-84.

Granted. Transferred to Third Circuit Court of Appeal for review of the district court’s action of January 10, 1984.


text:
    STATE of Louisiana v. Frank HORTON.
    No. 84-KK-0207.
    Supreme Court of Louisiana.
    Feb. 3, 1984.
   In re Frank Horton, applying for writ of certiorari, mandamus, and prohibition to the Criminal District Court, Parish of Orleans, No. 285-818, from the Fourth Circuit Court of Appeal, No. K-1824.

Granted.


text:
    STATE of Louisiana, ex rel. Darrell ZENO v. CLERK OF COURT, 31ST JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON DAVIS.
    No. 84-KH-0050.
    Supreme Court of Louisiana.
    Feb. 3, 1984.
   In re Darrell Zeno, applying for writ of mandamus from the Thirty-First Judicial District Court, No. CR 3403-83, Parish of Jefferson Davis.

Granted. Trial judge ordered to act on relator’s application by February 23, 1984.


text:
    AMOCO PRODUCTION COMPANY, Atlantic Richfield Company, Chevron U.S.A., Inc., Cities Service Company, Conoco Inc., Getty Oil Company, Gulf Oil Corporation, Placid Oil Co., Shell Oil Company, the Superior Oil Company, Tenneco Oil Company and Texaco Inc. v. TENNESSEE GAS PIPELINE COMPANY, A DIVISION OF TENNECO INC.
    No. 83-CC-2652.
    Supreme Court of Louisiana.
    Feb. 3, 1984.
   In re Amoco Production Company, et al., applying for writ of review to the Civil District Court, No. 83-6771; Parish of Orleans, Fourth Circuit Court of Appeal, No. C-1592.

Writ granted. The ruling of the trial court is reversed; exception of lis pendens is overruled. The Texas litigation is not “on the same cause of action, between the same parties in the same capacities, and having the same object,” Art. 532, La.C. C.P. Case remanded to the district court for further proceedings.


text:
    Salvador FICARRA and Anthony Ficarra v. Mr. & Mrs. Paul R. BRACKLEY and Their Insurer, the ABC Insurance Company.
    No. 83-CC-2648.
    Supreme Court of Louisiana.
    Feb. 3, 1984.
   In re Salvador Ficarra and Anthony Fi-carra, applying for writ of prohibition and certiorari or review, to the Fourth Circuit Court of Appeal, No. C-1412; to the Civil District Court, Parish of Orleans, No. 82-3930.

Granted. The ruling of the trial court is set aside, and the order granting a jury trial is reinstated.


text:
    Thomas K. KIRKPATRICK and Gary Keyser v. Forman YOUNG, Lorena Rambin, Bessie Mae Henderson, Shannon Dunn Benis, Kevin Dunn and Kelly Dunn.
    No. 83-CC-2627.
    Supreme Court of Louisiana.
    Feb. 3, 1984.
   In re Shannon Dunn, Kevin Dunn and Kelly Dunn, applying for writs of certiora-ri, prohibition and mandamus, from the Sixth Judicial District Court, No. 15382; Parish of Tensas, Second Circuit Court of Appeal, No. 16151-CW.

Granted.


text:
    Mary McCASTLE, et al. v. ROLLINS ENVIRONMENTAL SERVICES OF LOUISIANA et al.
    No. 83-C-2621.
    Supreme Court of Louisiana.
    Feb. 3, 1984.
   In re Mary McCastle, applying for supervisory writs, from the First Circuit Court, No. 83 CA 0027, Parish of East Baton Rouge, to the Nineteenth Judicial District Court, No. 244,253.

Case below: 440 So.2d 812.

Granted.


text:
    Glenn FAUCHEUX v. HOOKER CHEMICAL CORPORATION.
    No. 83-C-2488.
    Supreme Court of Louisiana.
    Feb. 3, 1984.
   In re Hooker Chemical Corporation, applying for writ of certiorari or review, to the Fifth Circuit Court of Appeal, No. 83-CA-466; Parish of St. Charles, Twenty-Ninth Judicial District Court, No. 22098. Case below: 440 So.2d 1377.

Granted.


text:
    2L BOATS, INC. v. Fred SETTOON. WILTZ CORPORATION, INC. v. Fred SETTOON.
    No. 83-C-2658.
    Supreme Court of Louisiana.
    Feb. 3, 1984.
   In re 2L Boats, applying for writs of certiorari and review, from the First Circuit Court of Appeal, Nos. 83 CA 0003 and 83 CA 0004, Parish of Assumption, to the Twenty-Third Judicial District Court, Nos. 14200 and 14201.

Case below: 440 So.2d 793, 440 So.2d 796.

Denied.


author: EDWARDS, Judge. WATKINS, Judge SHORTESS, Judge

text:
    Randall Albert LeRAY v. ST. PAUL FIRE AND MARINE INSURANCE COMPANY, et al.
    No. 82-CA-0843.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 22, 1983.
    Opinion Concurring in Part, Dissenting in Part Nov. 30, 1983.
    Concurring Opinion Dec. 1, 1983.
    Rehearing Denied Feb. 14, 1984.
    Writ Granted April 13, 1984.

      Paul H. Due and Charles F. Duchein, III, Baton Rouge, for plaintiff-appellee.
    Donald T.W. Phelps, Baton Rouge, and Lloyd W. Hayes, New Orleans, for defendants-appellees St. Paul Fire and Marine Ins. Co., Dr. B. Eugene Berry, Drs. Aeree, Davis and Berry (A Professional Medical Corp.).
    Roger M. Fritchie, H. Evans Scobee, Baton Rouge, Robert E. Leake, Jr., New Orleans, for defendant-appellant American Hosp. Supply Corp. (Edwards Laboratories Div.).
    Before EDWARDS, WATKINS and SHORTESS, JJ.
   EDWARDS, Judge.

Plaintiff obtained a $3,640,000.00 damage judgment against defendant American Hospital Supply Corporation, Edwards Laboratories Division. Edwards Labs appeals. We affirm.

BACKGROUND FACTS

On August 20, 1976, plaintiff was admitted to the Baton Rouge General Hospital, suffering from multiple pulmonary emboli. This is a condition when blood clots (embo-li) migrate from the lower extremities and lodge in the lungs, causing decreased respiration, lung damage, and in some instances, death.

On the following day, Dr. B. Eugene Berry, a thoracic and cardiovascular surgeon, was consulted by the admitting physician. Dr. Berry recommended the insertion of a 28 mm Mobin-Uddin umbrella filter in plaintiffs inferior vena cava. This filtering device, manufactured by Edwards Labs, would block the migration of blood clots to plaintiffs lungs.

The 28 mm filter was implanted without complication on August 21, 1976. However, several days later, it was discovered that the filter had unseated from the vena cava and migrated to the right lung, lodging in plaintiffs right pulmonary artery. Dr. Berry allowed plaintiffs condition to stabilize for a few hours and then proceeded to surgically remove the filter. However, during this operation, plaintiff suffered an extended period of hypotension or low blood pressure, causing oxygen deprivation of the brain. As a result, plaintiff incurred permanent brain damage.

Suit was subsequently brought against Dr. Berry and his insurer, St. Paul, and Edwards Labs Division of American Hospital Supply Corporation. Plaintiff alleged negligence on the part of Dr. Berry and defective design (strict liability) by Edwards Labs. A few days before trial, plaintiff settled with Dr. Berry and St. Paul for $750,000.00. After trial, the jury returned a verdict holding Edwards Labs liable to plaintiff and finding no negligence by Dr. Berry.

In this appeal, Edwards Labs, defendant, alleges numerous errors, which we will now consider.

MOTION FOR DIRECTED VERDICT

As plaintiffs suit against defendant was grounded in strict design products liability, his burden was to establish a defect in defendant’s filter which caused his injuries. Defendant, however, alleges that plaintiff failed to meet this burden and, therefore, its motion for a directed verdict should have been granted. The trial judge denied the motion, stating that he felt “that there is sufficient evidence upon which reasonable minds could differ and that being the test, [the] motion is overruled.” Our review of the record demonstrates that the judge’s ruling was correct.

JURY INSTRUCTIONS

At the close of the trial, the jury was instructed by the judge on the standard of liability to be applied to defendant. As for the instruction regarding the definition of a “defect”, the judge stated to the jury that:

“A product is defective or unreasonably dangerous when a reasonable seller would not sell the product if he knew the risk involved or if the risks are greater than a reasonable buyer would expect.” (Trial p. 1367)

The jury was then instructed to assess defendant’s liability under this standard. Defendant contends that this definition is improper and resulted in an erroneous verdict.

Defendant submits that the determination of a design defect involves the consideration of the product’s benefits, risks, and purpose. Hunt v. City Stores, 387 So.2d 585 (La.1980). Defendant asserts that such a “balancing test” instruction to the jury would have resulted in a verdict of dismissal.

However, our examination of the jurisprudence indicates that the judge’s definition of “defect” is accurate. The Supreme Court in DeBattista v. Argonaut-Southwest Ins. Co., 403 So.2d 26 (La.1981) and Hebert v. Brazzel, 403 So.2d 1242 (La.1981), defines a defective or unreasonably dangerous product as one that is dangerous to an extent beyond that which would be contemplated by an ordinary consumer. This shift to a consumer expectation approach for determining defectiveness impliedly rejects the prior balancing test of Hunt, supra, and supports the instruction given the jury.

VERDICT UNSUPPORTED BY EVIDENCE

David Chonette, president of Edwards Labs, testified that they were aware of the migration problems of the 28 mm filter by 1974. Attempts were then made to incorporate hooks on the filter to improve seating and eliminate migration, but these were abandoned. Chonette further stated that the hooks would probably not prevent migration anyway, as he felt the filter’s inability to expand past 28 mm was the true cause of the migration problem.

The hook idea came from a competitor’s filtering device, known as the Kimray-Greenfield (KG) filter, which has small re-curved hooks for engaging the walls of the vena cava. Additionally, the design of the KG filter permits it to expand with the vena cava up to approximately 40 mm. Unlike defendant’s filter, the KG filter had no reported instances of migrating to the upper body.

Although fully aware of the risks (i.e., lung damage, impaired respiration, death) that migration posed, defendant continued to market and sell its filter. These risks, of which plaintiff was not informed, are certainly greater than a reasonable consumer would expect, especially in the present situation where defendant should have made further attempts to improve or redesign its product in light of its known deficiencies and the existing technology.

The record contains sufficient evidence to furnish a reasonable basis for the determination that defendant’s filter was defective, and therefore, the jury verdict of liability is not manifestly erroneous. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

NEGLIGENCE OF DR. BERRY

Defendant asserts that the jury erred in finding Dr. Berry not negligent in his treatment of plaintiff. Specifically, defendant points to testimony alleging that Dr. Berry implanted the filter at an improper angle; that heparin therapy or ligation of the vena cava was preferable to filter implantation; that plaintiff’s consent to the filter insertion was made without adequate disclosure of the risks involved; and that the subsequent operation to remove the filter was negligently performed by Dr. Berry.

However, the record also contains equally strong testimony refuting all of the above alleged facts. Rather than delineate the testimony of the six expert witnesses (five medical doctors and one biomedical engineer), it suffices to say that there is sufficient evidence in the record to supply a reasonable factual basis for the jury verdict absolving Dr. Berry of negligence. Arceneaux, supra.

SETTLEMENT WITH DR. BERRY AND ST. PAUL

As a part of the settlement agreement between plaintiff and Dr. Berry, St. Paul retained a contingent interest in the litigation. A pretrial stipulation between counsel established that only the fact of settlement would be revealed to the jury. However, at trial, defendant attempted to introduce evidence to the jury regarding St. Paul and Dr. Berry’s interest in the suit because of the settlement.

However, we feel that the defendant is bound by the pretrial stipulation which it freely entered into. This agreement allowed only the fact of settlement to be revealed to the jury. The trial judge’s denial of defendant’s efforts to inform the jury of St. Paul and Dr. Berry’s interest in the suit was proper.

Defendant further asserts that since St. Paul was assigned an interest in plaintiff’s suit, it should have been made a party plaintiff under La.C.C.P. art. 698. Defendant argues the present judgment allows plaintiff to recover St. Paul’s $750,-000.00 settlement without them being named as a co-plaintiff. Defendant therefore urges that the judgment be reduced by this amount.

However, by the terms of the agreement, plaintiff retained full discretion to settle with defendant or proceed to trial. Therefore, it was obvious that no true “assignment” was intended between the parties, since St. Paul could not independently litigate its interest. The trial judge was correct in overruling defendant’s objection, as there was no necessity for joining St. Paul as a co-plaintiff.

ADMISSION OF MEDICAL ARTICLES

During the trial, plaintiff referred to several articles in examining the expert witnesses. Some of these articles were written by Dr. Kazi Mobin-Uddin, the inventor of defendant’s filter. The other articles were authored by medical doctors who reported the results of research in the area of vena cava filtering devices.

Defendant objected to the use of these articles by plaintiff as hearsay evidence. However, the trial judge ruled that the articles written by Dr. Mobin-Uddin were admissible under the declaration against interest exception to the hearsay rule. These articles showed that Dr. Mo-bin-Uddin and defendant were aware that the hooks on the KG filter prevented migration, and that similar hooks would or could be placed upon defendant’s filter. The judge ruled that Dr. Mobin-Uddin, as the inventor and continuing paid consultant to Edwards Labs, stood in the shoes of defendant and that his statements would be considered admissions or declarations against interest on the part of defendant. We agree with the trial court’s ruling. The mutual interest of Dr. Mobin-Uddin and defendant safeguards the. reliability of this evidence. Campbell v. American Home Assurance Company, 260 La. 1047, 258 So.2d 81 (1972). -

Defendant further argues that even if the articles by Dr. Mobin-Uddin are exempt from the hearsay rule, they should still be excluded because there was no showing that the conclusions therein were reached prior to plaintiff’s injuries in 1976. As mentioned above, these articles showed that the defendant was aware of the migration-preventing hook configuration of the KG filter and that similar hooks would or could be placed on defendant’s filter.

However, the testimony of David Cho-nette indicates that as early as 1974 or 1975 the defendant was considering the addition of hooks to its own filters in light of the superior migration record of the KG filter. Thus, defendant’s argument is without merit.

As for the use of the other medical articles, portions of these were read to various expert witnesses, who then agreed with or interpreted the offered section. These portions dealt with the absence of migration found in the KG filter, the benefits and disadvantages of the hooks on the KG filter, and its ability to expand.

The trial judge ruled that these portions were admissible under the learned treatise exception to the hearsay rule. We agree. The articles were all written by competent physicians who are experts in the field. The limited use of these articles to illustrate alternative filter designs was proper. Moreover, the points covered by these articles were corroborated by the testimony of David Chonette, president of Edwards Labs.

EVIDENCE OF DEFENDANT’S SALES

During the cross-examination of David Chonette, plaintiff inquired as to defendant’s annual sales level. Defendant promptly objected that defendant’s sales level was irrelevant. In response, plaintiff rephrased his line of questioning to determine whether defendant had any spending limits on a product’s research and development. After several evasive answers, the trial judge suggested that plaintiff directly ask Chonette how big -the company was. Plaintiff proceeded to do so, without objection by defendant, and learned that defendant’s 1981 sales were approximately 2.9 billion dollars.

Defendant argues that this sales evidence was improperly admitted over its objection. However, defendant cannot now complain that the evidence was improperly admitted, as no objection was made to plaintiff’s second question concerning defendant’s sales. Defendant’s sole objection did not continue to plaintiff’s subsequent questions.

PLAINTIFF’S JURY ARGUMENT

During plaintiff’s closing argument to the jury, counsel made references to the medical articles and sales evidence discussed above. Defendant contends that these remarks are prejudicial and inflammatory, resulting in an erroneous award.

However, as these items of evidence were properly admitted into the record, it follows that references thereto by plaintiff cannot be prejudicial. Moreover, defendant failed to timely object during plaintiff’s argument, and therefore cannot be heard to complain now on appeal. Temple v. Liberty Mutual Ins. Co., 330 So.2d 891 (La.1976).

EXAMINATION OF EVIDENCE BY JURY

After some deliberation, the jury returned and requested to see all the exhibits introduced into the record. The judge informed the jury that they could not examine written or documentary evidence, and then determined which exhibits were permissible for examination.

The items submitted to the jury were excerpts from plaintiff’s high school year book, high school and college transcripts, diagrams of the KG and defendant’s filter, pre-injury photograph of plaintiff, photographs of plaintiff’s paintings, a poster advertising a benefit show for plaintiff, and a chart depicting plaintiff’s past and future wage loss. Defendant objects that these exhibits should not have been examined by the jury.

All of these items, with the possible exception of the wage loss chart, are representative of an “object or document received in evidence which requires a physical examination to enable them to arrive at a just conclusion,” (La.C.C.P. art. 1974), and were properly sent to the jury by the trial judge.

As for the wage loss chart, defendant particularly objects that it was error for the jury to have this during the deliberations. This type of chart could unduly influence a jury. However, the ehart in question was nothing more than a recapitulation of the testimony of Dr. Randolph Rice, plaintiff’s economic expert, concerning the plaintiff’s wage loss. In this situation, we find no error by the trial judge in submitting the chart to the jury.

EXCESSIVE DAMAGES

The jury awarded plaintiff the following damages:

(A) Damages for personal injuries, including permanent disability, past and future pain and suffering, past and future mental anguish and distress and future attendant care - $2,500,000.00
(B) Loss of income, past and future - 1,040,000.00
(C) Medical expenses, past and future - 100,000.00
$3,640,000.00

Defendant contends that all three award categories are excessive, and urges their reduction.

In awarding damages for areas such as personal injuries, pain and suffering and mental anguish, a jury is granted great discretion. In such cases, our review is limited to determining whether the jury has abused this descretion, given the circumstances of the case. Reck v. Stevens, 373 So.2d 498 (La.1979). As recently stated by this court in Cage v. Shainberg’s Stores of La., 413 So.2d 564, 566 (La.App. 1st Cir. 1982):

“A jury is granted great discretion in fixing an award for general damages which cannot be fixed with any degree of certainty, such as pain and suffering. In such cases, our review must be limited to a determination of whether the jury has abused its discretion, based on the circumstances of the case. Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1977); Rheams v. McCray, 346 So.2d 834 (La.App. 1st Cir.1977); Averett v. Alexander, 336 So.2d 227 (La.App. 1st Cir.1976). And, since the jury does have much discretion in fixing damages, the appropriate procedure for testing whether the jury abused its discretion is to determine whether the award can be supported under the interpretation of the evidence most favorable to the plaintiff which reasonably could have been made by the jury. Schexnayder et ux. v. Carpenter et al., 346 So.2d 196 (La.1977); Bevil v. Heath Timber Company, Inc., 347 So.2d 889 (La.App. 3rd Cir.1977).

The record demonstrates that plaintiff was indeed severely injured. Following surgery to remove the filter, plaintiff was in a deep coma for about ten days, and semi-comotose for two months thereafter. Upon regaining consciousness, plaintiff could only speak single words but not complete sentences. Plaintiffs condition was similar to that of a newborn baby in that he had to be completely re-educated in how to talk. It was subsequently determined that he had suffered moderate brain damage.

In November, 1976, plaintiff was sent to the Texas Institute of Rehabilitation and Research in Houston, Texas, for therapy and treatment. When plaintiff returned in 1977, he could converse but his speech was still slurred. His movements were uncoordinated and spastic, and he lacked fine motor skills. His wife Linda, desiring a new life, remained in Houston and subsequently obtained a divorce and remarried. Since then, plaintiff has had no social life regarding women.

Although plaintiff has improved since returning from Houston, his movements are still slow, uncoordinated and spastic. He must depend on others to a great extent for day-to-day activities and will never be an independent individual. Presently, plaintiff spends his days at the YMCA for physical therapy and the Adult Continuing Education Center for learning rehabilitation. His father, who is retired, chauffeurs plaintiff around because driving by him is inadvisable due to his spasticity and a tendency to get lost. Moreover, it is doubtful plaintiff could ever obtain a valid driver’s license. His mother cooks his meals and cleans his clothes. In short, plaintiff relies on his parents for most daily activities.

However, both parents are elderly and in ill health, his father suffering from terminal cancer and his mother from heart disease and high blood pressure. Plaintiff, 33 years old, will certainly be in need of future attendant care during the estimated 40 remaining years of his life. He is presently unable to care for himself to even a minimum degree, and it is uncertain whether he could be trained to do so. The cost of such future attendant care over 40 years has been estimated by plaintiffs economic expert, Dr. Randolph Rice, to be approximately $800,000.00 (present value) for 16 hours of care daily, using a minimum wage pay scale.

Psychologically, plaintiff has been characterized as having a slow thinking process. Unfortunately, he is aware of his mental and physical handicaps, and this has generated frustration, depression, anger and anxiety within plaintiff. The gains he has made since 1976 have encouraged him to hope unrealistically for almost total recovery. Plaintiff has avoided dealing with the grief over the loss of his former self. Dr. Darlene Nemeth, neuropsychologist, stated that further long-term supportive psychotherapy would be necessary to counsel plaintiff on the reality of his condition.

Based on the above evidence, the jury awarded plaintiff $2,500,000.00 damages for personal injuries, permanent disability, past/future pain and suffering, past/future mental anguish and distress and, additionally, future attendant care.

Although unitemized, a reasonable figure that is supported by the record for the award of future attendant care would be approximately $800,000.00, as discussed above. The remaining $1,700,000.00 would represent the award for general damages. Our examination of the record, as illustrated above, convinces us of the devastating loss incurred by plaintiff from his tragic' injury. We feel the award for general damages, as well as the award for attendant care, to be amply justified and supported by the record. No abuse of the jury’s great discretion has been shown.

As for the award for lost wages, it is clear from the record that the jury’s award of $1,040,000.00 is supportable. Curtis Charrier, occupational consultant, testified that plaintiff could not engage in any gainful employment. Dr. Randolph Rice, plaintiff’s economic expert, submitted a figure of $1,039,408.00 to compensate plaintiff for past/future lost wages, based on plaintiff’s probable earnings over his thirty years of work-life expectancy had he not been injured. We find no abuse of discretion in the jury’s award.

Turning now to the award of $100,-000.00 for past and future medical expenses, we find that the record shows approximately $20,000.00 was incurred in past medical expenses. The remaining $80,000.00 of the award is justified in light of the future rehabilitation and psychotherapy efforts facing plaintiff. We likewise find no abuse of discretion in this award.

DECREE

Accordingly, for the above-expressed reasons, we affirm the decision of the trial court at appellant’s cost.

AFFIRMED.

WATKINS, J., concurs and assigns reasons.

SHORTESS, J., concurs in part and dissents in part and assigns reasons.

WATKINS, Judge

(concurring).

The learned treatise exception to the hearsay rule as it applies to direct examination permits learned treatises to be quoted in corroboration of an expert opinion as such treatises are prepared for scholars in the field, and properly form the partial bases for the formulation of the opinion of another expert in the field, the expert witness.

The defendant strenuously contends that Louisiana follows the general rule that medical books or treatises are inadmissible on direct examination as hearsay. But the implication in the majority opinion, in which I concur, that learned treatises may be read aloud on direct examination by an expert witness in court under the learned treatise exception to the hearsay rule, does find support in Louisiana jurisprudence.

In State v. Nicolosi, 228 La. 65, 81 So.2d 771 (1955), the Louisiana Supreme Court found the trial court acted correctly in a criminal narcotics case in permitting the State’s expert witness to read from a pamphlet published by the U.S. Treasury Department Bureau of Narcotics, as the pamphlet furnished in part the basis of the witness’ expert opinion, and was a scientific treatise.

It is true that in Jennings v. Allstate Insurance Company, 273 So.2d 534 (La.App. 1st Cir.1973), we affirmed the action of the trial court in refusing to permit a doctor to refer to and explain the effect of electric shock of the mother upon an unborn fetus. However, our action in affirming the trial court was not intended to constitute a repudiation of the learned treatise exception to the hearsay rule, but rather, as we stated, was prompted by the fact the doctor called to testify had no personal experience with the subject. The learned treatise was thus in effect sought to be introduced for its internal value alone, without the benefit of the opinion of the expert witness called to testify, who had no knowledge of the subject.

Thus, where a learned treatise forms a partial basis of the opinion testimony of an expert witness, it may be quoted by that witness to support his view. However, where the expert witness is incapable of forming an opinion because of his lack of experience or knowledge of the subject matter, the learned treatise may not be quoted by that witness, as in such a case the learned treatise is pure hearsay, and could be quoted as easily by one not called as an expert.

Guidry v. Grain Dealers Mutual Insurance Co., 193 So.2d 873 (La.App.3d Cir.1967), a case dealing with the inadmissibility of automobile braking distance charts did seem to indicate that learned treatises are inadmissible as hearsay. However, that case conflicts directly with Nicolosi, supra, a Supreme Court decision, and is not binding upon this circuit.

The learned treatise exception, therefore, is recognized in Louisiana, and does permit on direct examination learned treatises to be referred to in support of an expert opinion.

I respectfully concur.

SHORTESS, Judge

concurring in part, dissenting in part.

I concur in the result on the liability issue.

I dissent in part from the majority’s treatment of general damages. I find the jury’s award of $2,500,000.00 shocking. I sympathize with plaintiff because he did, indeed, sustain grievous and disabling injuries. In Naylor v. La. Dept. of Public Highways, et al., 423 So.2d 674 (La.App. 1st Cir.1982), writs denied, 429 So.2d 127, 134 (La.1983), however, the plaintiff suffered even more devastating injuries, and his award for general damages was upheld by this court which stated that “we are unable to say that the trial judge abused his much discretion in awarding plaintiff one million dollars in general damages.” 423 So.2d at 685.

I would give plaintiff the $800,000.00 for future attendant care but would reduce the award of general damages to $1,800,000.00.

Accordingly, I respectfully concur in part and dissent in part.


author:
CARTER, Judge:
      PONDER, Judge, PER CURIAM:

text:
    RIVER CITIES CONSTRUCTION COMPANY, INC., et al. v. BARNARD & BURK, INC.
    No. 83 CA 0238.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 22, 1983.
    Rehearing Denied Jan. 19, 1984.
    Writ Denied March 16, 1984.

      John S. White, Jr., and John Dardeen, Baton Rouge, for plaintiffs-appellants River Cities Construction Company, Inc. and J. King Woolf, Jr., Judicial Liquid.
    Boolus J. Boohaker, Baton Rouge, for plaintiff-appellee Louisiana National Bank of Baton Rouge.
    Ray Dawson, Baton Rouge, for defendant in reconvention-appellee Ohio Casualty Insurance Co.
    Henry J. Klein, and Gary J. Rouse, New Orleans, for defendant-appellant Barnard & Burk, Inc.
    Before PONDER, WATKINS and CARTER, JJ.
   CARTER, Judge:

This is a suit for damages arising out of the alleged breach of two construction contracts and for damages for wrongful destruction and defamation of a construction business.

FACTS

On August 27, 1976, River Cities Construction Company, Inc. (River Cities) and Barnard & Burk, Inc. (B & B) entered into a subcontract for the construction of dock facilities on the Mississippi River at the Peavy Grain Terminal in Remy, Louisiana. The ship and barge dock subcontract was to be performed for a price of $2,851,-475.00; subsequent change orders extended the completion date and increased the contract price to $2,984,975.67.

On August 31, 1977, River Cities again entered into a subcontract with B & B. This subcontract was for the construction of a barge anchorage system at the same site. The contract price was $68,607.00, and the work was to commence upon receipt of a permit from the Army Corps of Engineers and be completed 45 days from commencement. B & B obligated itself to obtain the necessary permit and to furnish a copy to River Cities.

In February, 1978, River Cities notified B & B that it was unable to complete the barge anchorage subcontract and that it no longer intended to pursue construction contracts in the open market. Thereafter, B & B terminated the barge anchorage subcontract and obtained the services of another subcontractor.

River Cities filed the present suit on June 5, 1979, seeking recovery against B & B under three separate grounds: tort, contract, and unjust enrichment. Plaintiff alleged that B & B wrongfully withheld payment of funds after completion of the ship and barge dock contract and then wrongfully attempted to cancel the second contract for the construction of the barge anchorage system. These wrongful acts allegedly caused the failure of River Cities’ business and the losses suffered by plaintiff. B & B filed a reconventional demand alleging breach of contract by River Cities.

Trial Court Findings

At the close of plaintiff’s case, B & B moved for a directed verdict as to River Cities’ defamation claim. The trial judge granted the motion, finding that two elements of a claim for defamation were not present, viz., publication and malice. This ruling by the trial judge was not appealed. The remaining portions of the case were submitted to the jury.

The jury found that River Cities was not entitled to recovery based on the fault of B & B nor was River Cities entitled to recovery for breach of contract, but the jury did find that B & B had been unjustly enriched at the expense of River Cities. As a result, the jury rendered judgment on the principal demand in favor of River Cities for $29,567.00. The jury rendered judgment in favor of B & B for $7,905.42 on the recon-ventional demand upon finding that River Cities breached its contract with B & B.

ASSIGNMENTS OF ERROR

Both River Cities and B & B appealed suspensively from the trial court judgment. River Cities alleges that it was error for the trial court to deny recovery for the wrongful destruction of its business. River Cities further assigns as error the denial of recovery to them for additional expenses under the barge anchorage subcontract and the grant of recovery to B & B for breach of the barge anchorage subcontract by River Cities. B & B contends that the trial court erred in granting a motion to strike B & B’s claim for attorney fees incurred in defense of a frivolous defamation claim.

Wrongful Destruction of Business

River Cities contends it was error for the trial court to deny recovery by River Cities against B & B for the wrongful destruction of its business. In support of this contention, River Cities reasons that B & B should have timely paid the $298,497.57 due under the ship and barge dock subcontract pursuant to Article A6 of the subcontract. The provision requires the contractor to make final payment to the subcontractor within 30 days of completion of the work as certified by the contractor and after receipt of executed release of liens. River Cities contends that Article 6, when construed in light of Article G 2.1 and G 2.2.2 of the general conditions of the subcontract, indicates that payment is due 30 days after the contract representative has inspected and accepted the work.

River Cities contends that the trial court erroneously instructed the jury as to the final payment conditions and, in the alternative, that River Cities fully complied with the final payment conditions. River Cities .Contends that B & B, by wrongfully withholding the monies due under the contract and by breaching the contract, caused the destruction of River Cities’ business.

Under the terms of the contract, B & B was to make monthly progress payments for 90% of the work performed, thereby contemplating a 10% retainage of $298,-497.57. The method whereby final payment would be made was also provided for in the contract.

In instructing the jury as to the law applicable in the case, the trial judge gave the following charge with respect to interpreting the final payment provisions under the contract.

“Article A6, Subcontract, termed FINAL PAYMENT:
‘Final payment, constituting the entire unpaid balance of the subcontract sum, shall be paid by the contractor to the subcontractor 30 days after completion .of the work as certified by the contractor and after receipt of a properly executed release of liens.’
Under the GENERAL CONDITIONS of the subcontract, which are designated Gl.2.2, is provided:
‘The subcontract documents are complementary, and what is required by one shall be as binding as if required by all. If there is any discrepancy between the provisions of the various subcontract documents, the provisions of a given subcontract document shall prevail over those of all subcontract documents named subsequent thereto in the following list:
1) Agreement, including addenda and modifications thereto.
2) Drawings.
3) Specifications.
4) Special conditions of the subcontract.
5) Supplementary GENERAL CONDITIONS of the subcontract.
6) GENERAL CONDITIONS of the subcontract. (That’s what we’re reading from.)
7) All subcontract documents other than those named in clauses Gl.2.2.1 through Gl.2.2.6 above.
And, finally, under GENERAL CONDITIONS of the subcontract, we have' G9.3.3, and it also relates to FINAL PAYMENT:
‘FINAL PAYMENT shall be made 30 days after approval of the invoice for final payment and subcontractor’s delivery to the contractor of (1) a notarized affidavit that all payroll, bills for materials and equipment, and other indebtedness connected with the work for which the contractor or owner or his property might in any way be responsible, have been paid or otherwise satisfied; (2) con- ' sent of surety, if any, to final payment; (3) releases and waivers of liens, notices of intention to lien and/or liens or claims; and (4), if required by the contractor or the owner, other data establishing payment or satisfaction of all such obligations, such as receipts, releases and waivers of liens arising out of the subcontract, to the extent and in such form as may be designated by the contractor. If any subcontractor refuses to furnish a release or waiver required by the contractor or the owner, the subcontractor may furnish bond satisfactory to the contractor and owner to indemnify them against any such lien. If any such lien remains unsatisfied after all payments are made, the subcontractor shall refund to the contractor or the owner all monies that the latter may be compelled to pay in discharging such liens, including all costs and reasonable attorneys’ fees.’
Now, those are the pertinent contract provisions in this case. The court interprets these contractual provisions consistent with the first sentence of Gl.2.2 of the GENERAL CONDITIONS of the subcontract which provides that: ‘... what is required by one shall be as binding as if required by all.’ Therefore, if there are two requirements for final payment under the agreement and four requirements 'for final payment under the GENERAL CONDITIONS, the latter provision is controlling.
As the court appreciates the word ‘discrepancy’ utilized in the second sentence of Gl.2.2, it is controlling where in the instance, and I’ll give you an example, the agreement tells the contractor or owner to do a certain act whereas the GENERAL CONDITIONS tell the contractor or owner not to perform that act. That would be a discrepancy. But where there are requirements to be performed, if one says one requirement and the other says two, or in this ease one says two requirements and the other says four requirements, it is not a discrepancy it is an additional requirement and the latter provision controls.”

The trial court properly instructed the jury as to final payment conditions; therefore, it was necessary for River Cities to provide: (1) a notarized affidavit that all indebtedness for work for which contractor could be liable had been paid; (2) consent of surety to final payment; (3) releases and waivers of liens; and (4) any other data establishing payment of obligations as required by contractor to owner.

This River Cities did not do. Although River Cities submitted a notarized affidavit to B & B, it was made with the knowledge that the statement was false. All of River Cities’ indebtedness had not been paid. The consent of the surety as to final payment had been sent to River Cities, but it was not proven that B & B even received a copy of it. Furthermore, although River Cities attempted to provide B & B with releases and waivers of liens, it never successfully did so.

Because River Cities did not comply with the final payment provisions under the contract, B & B properly withheld final payment. Therefore, B & B cannot be held liable for damages which may have resulted from the non-payment of such re-tainage.

This assignment lacks merit.

Breach of Barge Anchorage Subcontract

River Cities contends that the trial court erred in denying recovery to River Cities for additional expenses incurred in the barge anchorage subcontract and in granting recovery to B & B on the basis of River Cities’ alleged breach of the subcontract. River Cities contends that B & B breached its obligation to timely obtain the necessary permits for work to begin under the barge anchorage subcontract. River Cities reasons that B & B’s delay in obtaining the permit was unreasonable and that, as a result of this delay, it became impossible for River Cities to perform its contract obligations.

The subcontract for the barge anchorage system was executed on August 31, 1977, for a price of $68,667.00. The contract stipulated that the permit to perform the work would be obtained from the governing authority by the contractor (B & B). Although no time period was specified in the contract, the evidence established that it usually took four to six weeks to obtain the necessary permit. In September and October of 1977, River Cities, with B & B’s approval, prefabricated the components so they could immediately install the structures on the site when the permit was issued. River Cities was paid $22,139.52 for this prefabrication.

In February, 1978, River Cities received a copy of the Corps of Engineers permit for construction of the barge anchorage system at the Peavy Grain docks dated January 30, 1978. At that time, River Cities could not commence work under the contract because the permit and the contract contained certain restrictions based on the river levels. The special conditions of the subcontract specified that concrete was not to be placed if the Mean Sea Level of the Mississippi River was above 5.0 feet. The Corps of Engineers permit provided that no pile driving operations could be performed during the period when the Don-aldsonville gage exceeded 17.0 feet.

The evidence established that in February, 1978, the gage in Donaldsonville was close to 17.0 feet and that it would not have been possible to complete the contract within 45 days of receipt of the permit. On February 8, 1978, River Cities notified B & B that at that time “the river will not allow installation and will probably continue to prevent installation until sometime in May.” River Cities also suggested that B & B pay $75.00 per day for the 91 days, which elapsed from the time prefabrication was completed to the date the permit was obtained, as extra compensation. River Cities also wanted $3,000.00 for transporting and unloading the prefabricated material. River Cities contemplated that completion of these two acts would constitute fulfillment of all obligations to both parties under the barge anchorage system subcontract.

B & B then terminated the contract with River Cities and engaged the services of a new contractor. The cost of the completion of the work performed by the new contractor exceeded the original contract price by $7,987.00, and the work was not completed until one year later.

If no time for performance is specified in a contract, a reasonable time is determined by the circumstances of each case. Owens v. Robinson, 329 So.2d 766 (La.App.2d Cir.1976); Perrin v. Hellback, 296 So.2d 342 (La.App. 4th Cir.1974), writ denied, 300 So.2d 184 (La.1974).

In the case sub judice, we have no difficulty concluding that B & B delayed performing its obligation under the contract for an unreasonable length of time. The contract required that River Cities complete the construction and installation of an entire barge anchorage system in 45 days after the permit was issued, yet six months elapsed before the permit was obtained by B & B, and once obtained River Cities could not commence work because of the river stage.

B & B failed to offer any evidence in support of justification for the delay in obtaining the permit, failed to establish any unusual problems, and failed to show any extraordinary difficulties or unique conditions which would warrant a finding that their delay in performance was reasonable and due to extenuating circumstances beyond their control. In the absence of such proof, we conclude that B & B’s delay in obtaining the permit over this prolonged period of time was unreasonable and unjustified. The failure of B & B to deliver the permit within a reasonable time was a breach of the contract.

River Cities’ nonperformance of its contract obligation did not constitute a breach of contract. River Cities’ inaction was caused by B & B’s prior default, and River Cities could not construct the barge anchorage system until the permit was obtained and the river stages were within acceptable levels. In analogous situations, the courts have held that subcontractors are justified in refusing to continue performance of the subcontract when the contract has been breached by the contractor. Giddens v. Alpine Const. Specialties, Inc., 401 So.2d 1026 (La.App.2d Cir.1981); R.J. Ducote Contractor, Inc. v. L.H. Bossier, Inc., 192 So.2d 179 (La.App. 1st Cir.1966); Rosenberger v. Hutchinson, 143 So.2d 604 (La.App. 4th Cir.1962); Arendsen v. Edw. D. Boyle & Co., 9 La.App. 367, 119 So. 282 (1928).

Based upon our finding that B & B breached its obligation to timely obtain the permit, we find that River Cities’ failure to construct the barge anchorage system was justified. Therefore, the jury determination that River Cities breached the contract is manifestly erroneous and B & B is not entitled to damages. Accordingly, we reverse that portion of the trial court judgment which awarded $7,905.42 to B & B for River Cities’ alleged breach of contract.

Having concluded that River Cities did not breach the contract, we must address River Cities’ claim for damages for additional expenses incurred as a result of B & B’s failure to timely obtain the necessary permit. A review of the record, however, reveals that no proof of such damage is contained therein. Therefore, we affirm that portion of the trial judgment denying River Cities’ claim for additional expenses.

Attorney Fees for Frivolous Defamation Claim

B & B contends that it is entitled to attorney fees for the defense of a frivolous defamation claim pursuant to LSA-C.C. art. 2315.1 and that the trial judge erred when he granted River Cities’ motion to strike the claim for such attorney fees.

On June 5, 1979, River Cities filed suit against B & B, alleging in part a claim for defamation. By amended answer filed June 4, 1981, B & B asserted that River Cities’ defamation claim was frivolous and that B & B was entitled to attorney fees pursuant to LSA-C.C. art. 2315.1. River Cities then filed a motion to strike that portion of B & B’s amended answer. River Cities based the motion to strike on the fact that at the time the answer was filed, LSA-C.C. art. 2315.1 had been repealed. By judgment dated August 17, 1981, the trial court granted the motion to strike upon finding that the attorney fees provision of LSA-C.C. art. 2315.1 was procedural and its repeal could have retroactive application. No appeal was taken from this judgment.

The merits of the entire case were tried by jury on October 19-21, 1982. At the close of plaintiff’s case, trial court granted B & B’s motion for directed verdict as to the defamation claim. The judgment of the trial court, dated November 15, 1982, disposed of the remaining issues which had been submitted to the jury. B & B and River Cities then perfected suspensive appeals.

Generally, attorney fees are not recoverable in civil cases unless specifically authorized by law or contract. Ricard v. State, 390 So.2d 882 (La.1980); Smith v. White, 398 So.2d 178 (La.App. 3rd Cir. 1981). The Louisiana legislature enacted Act No. 217 of 1976 which created LSA-C.C. art. 2315.1 and allowed a party to recover attorney fees in defamation cases. However, Act No. 324 of 1980 repealed Article 2315.1 of the Louisiana Civil Code. Therefore, from July 29, 1976, to July 15, 1980, attorney fees were allowed in actions for defamation filed pursuant to LSA-C.C. art. 2315.1.

The issue now before us is whether Act No. 324 of 1980 which repealed LSA-C.C. art. 2315.1 is procedural and should be applied retroactively thereby barring an award of attorney fees or whether the act is substantive and should be applied prospectively only.

Clearly, if a statute merely prescribes the method of enforcing a right which previously existed or maintaining redress for invasion of rights, it is classified as procedural. However, if the act creates a new obligation where no such obligation existed before, it is substantive. Guste v. Burris, 417 So.2d 445 (La.App. 1st Cir. 1982), reversed on other grounds, 427 So.2d 1178 (La.1983).

In Frito-Lay, Inc. v. Wapco Constructors, Inc., 520 F.Supp. 186, 189-191, (M.D.La.1981), Judge Polozola, in an excellently reasoned opinion, discussed this issue as follows:

“Art. 8 of the Louisiana Civil Code sets forth the rule of statutory construction in Louisiana:
‘A law can prescribe only for the future; it can have no retrospective operation, nor can it impair the obligation of contracts.’
Generally a law is deemed to be prospective in effect unless its language clearly indicates otherwise or unless it fits within one of the exceptions to the rule which allows retroactive effect to laws which are interpretive, remedial, curative or procedural.
Procedural matters established by statute can have retroactive effect in the absence of law showing a contrary intention. However, substantive matters are presumed to be prospective in effect only, and they should not be applied retroactively unless the language used by the legislature shows a clear intent that they should be given retroactive effect.
Prior to July 29, 1976, Art. 2315 of the Louisiana Civil Code barred the award of punitive damages and attorney fees in defamation cases. After the adoption of La.C.C. Art. 2315.1, however, an individual could maintain an action in defamation and recover punitive damages and attorney fees if the statement was made with knowledge of its falsity or with reckless disregard of whether it was false or not
It is clear that the intent of the Legislature was to eliminate specific awards for punitive damages and attorney fees in defamation cases. The right to recover punitive damages and attorney fees under article 2315.1 is a ‘substantive’ law. In Manuel v. Carolina Casualty Insurance Company, 136 So.2d 275 (La. App. 3 Cir.1961), the Court defined ‘substantive law’ as follows:
‘The term “substantive law” is defined in Black’s Law Dictionary Fourth Edition, as:
“That part of law which creates, defines, and regulates rights, as opposed to ‘adjective or remedial law,’ which prescribed method of enforcing the rights or obtaining redress for their invasion. Maurizi v. Western Coal & Mining Co., 321 Mo. 378, 11 S.W.2d 268, 272; Mix v. Board of Com’rs of Nez Perce County, 18 Idaho 695, 112 P. 215, 220, 32 L.R.A., N.S., 534.”
In Matney v. Blue Ribbon, La.App. 2 Cir., 12 So.2d 249, 253 (Affirmed by Supreme Court, 202 La. 505, 12 So.2d 253), the Second Circuit Court of Appeal said:
“Black’s Law Dictionary, 3d Ed., defines ‘substantive law’ to be that part of the law which courts are established to administer as opposed to the rules according to which the substantive law itself is administered. It is that part of the law which creates, defines and regulates rights as opposed to adjective or remedial law which prescribes the method of enforcing rights or of obtaining redress of their invasion.” ’
The Court finds that Act 324 of 1980 which repealed Article 2315.1 clearly made a change in the substantive law in Louisiana insofar as the recovery of punitive damages and attorney fees in defamation cases is concerned. Clearly, a law which repeals a substantive law and in so doing extinguishes a right and cause of action, is substantive itself. For this reason Act. No. 324 of 1980 cannot have retroactive effect and must, therefore, be applied prospectively only.” (Citations omitted)

Once it is determined that LSA-C.C. art. 2315.1 and the repeal thereof are substantive, we must address the effect and ap-pealability of the judgment granting the motion to strike B & B’s claim for attorney fees.

LSA-C.C.P. art. 1841 provides that:

“A judgment is the determination of the rights of the parties in an action and may award any relief to which the parties are entitled. It may be interlocutory or final.
A judgment that does not determine the merits but only preliminary matters in the course of the action is an interlocutory judgment. ,
A judgment that determines the merits in whole or in part is a final judgment.”

The jurisprudence also makes a clear distinction between the appealability of interlocutory and final judgments. A judgment which neither disposes of issues applicable to the merits, nor finally affects the merits, nor deprives defendant of benefits to which he may be entitled at final hearing, is a non-appealable interlocutory judgment. LSA-C.C.P. art. 1841, 2083; State Dept. of Hwys. v. Alexandria Land & L. Co., Inc., 284 So.2d 153 (La.App. 3rd Cir.1973). For a judgment to achieve the character of finality, it is necessary that it decide the merits in whole or in part. Devillier v. City of Opelousas, 243 So.2d 118 (La.App. 3rd Cir.1971).

Although motions to strike are generally interlocutory judgments from which appeals are unavailable absent a showing of irreparable injury, the court in Devillier v. City of Opelousas, supra, noted that:

“ ‘An interlocutory judgment should not trench upon the merits of the cause; but the moment that it does, it acquires a character of finality which assimilates it to a final judgment and renders it appeal-able. It is not essential for a judgment to be final that it settle all the rights existing between the parties to the suit. All that is required is, that it determine issues involved on the merit of the action.’ ” Cary v. Richardson, 35 La.Ann. 505, 506 (1883).

In the present case, the trial court judgment granting the motion to strike disposes of a substantive issue on the merits; therefore, it is a final judgment.

When an appellant fails to timely take and perfect his appeal, the appellate court lacks jurisdiction to hear the appeal. Siracusa v. Kramer, 271 So.2d 546 (La. App. 1st Cir.1972), writ denied, 273 So.2d 843 (La.1973). The judgment granting the motion to strike the claim for attorney fees under LSA-C.C. art. 2315.1 was signed on August 17,1981. B & B did not appeal this judgment within the delays allowed by LSA-C.C.P. arts. 2087 and 2123. Therefore, this issue is not properly before this court.

For the above reasons, the judgment of the trial court is affirmed, insofar as it denies River Cities’ claims for damages for wrongful destruction of business and additional expenses, and is reversed, insofar as it awards damages of $7,905.42 to B & B for breach of contract. Costs of this appeal are to be assessed against defendant-appellee Barnard and Burk, Inc.

AFFIRMED in part; REVERSED in part.

PONDER, J., concurs and assigns reasons.

PONDER, Judge,

concurring:

I agree with the conclusion and with all parts of the decision except that I find it unnecessary to decide at length that the statute was substantive. The judgment was a final one disposing of the issue of attorney’s fees. It had to be appealed within the appropriate time. When we conclude, as we do, that the issue is not properly before the court, the discussion of substantive vs. procedural becomes moot and the statements become dicta.

ON APPLICATION FOR REHEARING

PER CURIAM:

It has been called to our attention in an application for rehearing that we affirmed the trial court judgment insofar as it denied River Cities’ claim for damages for wrongful destruction of business and for additional expenses and reversed the judgment insofar as it awarded damages of $7,905.42 to B & B for breach of contract, and left the other portion of the judgment of the trial court undetermined. We intended to and now affirm the judgment of the trial court in all other respects.

      . The principal demand was originally filed by River Cities Construction Company, Inc. and Louisiana National Bank of Baton Rouge, as partial assignee, against Barnard & Burk, Inc. Pursuant to River Cities Const. Co. v. Barnard & Burk, 413 So.2d 666 (La.App. 1st Cir.1982), writ denied, 414 So.2d 775 (La.1982), J. King Woolf, Jr. was qualified as judicial liquidator of River Cities and substituted as party plaintiff.

      . B & B also filed a third party demand alleging the liability of River Cities’ surety, Ohio Casualty Insurance Company, who provided a performance bond for the ship and barge dock subcontract. The trial court dismissed the third party demand against Ohio Casualty. No appeal was taken from this judgment.

      . B & B made payments totalling $268,930.94 from retainage due under the ship and barge dock subcontract to, or for the account of, River Cities between June 5, 1978, and August 10, 1978. Only $29,567.00 of the retainage due remained unpaid at the time of trial.

      . See Lanham v. Woodward, Wight & Co., Ltd., 386 So.2d 131 (La.App. 3rd Cir.1980), writ refused, 392 So.2d 668 (La.1980); Matte v. Continental Casualty Company, 185 So.2d 842 (La.App. 3rd Cir.1966).