author: HALL, Judge.

text:
    STATE of Louisiana, Appellee, v. James M. BELL, Appellant.
    No. 15 331-KAJ.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 20, 1983.
    Wayne J. Blanchard, Shreveport, for appellant.
    William J. Guste, Jr., Atty. Gen., Barbara B. Rutledge, Asst. Atty. Gen., Baton Rouge, Paul J. Carmouche, Dist. Atty., Robert W. Gillespie, Jr., Catherine M. Estopinal, Asst. Dist. Attys., Shreveport, for appellee.
    Before HALL, MARVIN and SEXTON, JJ.
   HALL, Judge.

The defendant, James Millard Bell, was charged by a bill of information with the armed robbery of an employee of a Gulf Majik Mart located in Shreveport, Louisiana. Initially the defendant pled not guilty to the charge, but later entered a plea of guilty in exchange for an assurance by the judge that his sentence would not exceed 10 years at hard labor. After reviewing the presentence investigation report, the trial court sentenced the defendant to 10 years at hard labor. The defendant appeals this sentence, urging that the trial court erred in imposing an excessive sentence. We affirm.

This defendant, 16 or 17 years old at the time of the offense, armed with a loaded gun, entered and robbed a convenience store, pushing the attendant to the ground and leaving with the cash register drawer. A police officer saw the defendant running down a street with the cash drawer and, after pursuit, approached the defendant. The money and the pistol were recovered.

Before pleading guilty to this offense, the defendant was informed by the trial court that his sentence would be limited to 10 years at hard labor. Further, the trial court informed the defendant that in the event the sentence actually imposed was objectionable to the defendant or his lawyer the court would allow him to withdraw his guilty plea.

At the sentencing, the trial court stated that although the defendant was very young and had no prior felony convictions, due to the seriousness of the crime and the dangerous situation created by the defendant the court would sentence him to 10 years at hard labor.

It is well settled that the trial judge is given wide discretion in the imposition of sentences and the sentence imposed by him should not be set aside in the absence of abuse of that discretion. State v. Jones, 381 So.2d 416 (La.1980); State v. Sepulvado, 367 So.2d 762 (La.1979). In this case the sentence is not apparently severe, the trial court’s sentencing choice is supported by the record, and there was no abuse of discretion. See State v. Prados, 404 So.2d 925 (La.1981) and State v. Square, 433 So.2d 104 (La.1983).

The defendant was exposed under LSA — R.S. 14:64 to penalty provisions ranging from five to 99 years. The sentence imposed is within the lower range of the permissible penalty. The mitigating factors of his age and lack of prior record were noted by the court. The seriousness of the crime and danger posed by the situation were also noted. Further, the trial court reviewed a presentence investigation that indicated the defendant had had problems with school attendance and with juvenile authorities in the past. The record supports the trial court’s determination and its sentence will not be disturbed.

An issue raised by the state on appeal, is whether a defendant who agrees to a range of sentence under a plea bargain can urge on appeal that the sentence is excessive. See and compare State v. Edwards, 434 So.2d 395 (La., 1983); State v. Jett, 419 So.2d 844 (La.1982); State v. Bell, 412 So.2d 1335 (La.1982); State v. Washington, 406 So.2d 191 (La.1981); State v. Gray, 404 So.2d 1215 (La.1981); State v. Bateman, 404 So.2d 927 (La.1981); State v. Hicks, 403 So.2d 676 (La.1981); State v. Curry, 400 So.2d 614 (La.1981); State v. Wilson, 438 So.2d 635 (La.App. 2d Cir.1983); State v. Benton, 432 So.2d 334 (La.App. 1st Cir.1983); State v. Buckenburger, 428 So.2d 966 (La.App. 1st Cir.1983); State v. Owens, 426 So.2d 367 (La.App. 2d Cir.1983). It is unnecessary to decide this issue in light of our conclusion that the sentence is otherwise entirely justified by the record.

Finding no merit in the defendant’s contention that the trial court erred in imposing an excessive sentence, we affirm the conviction and sentence.

Affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Louisiana, Appellee, v. Willie Edward PENDLETON, Appellant.
    No. 15390-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 20, 1983.

      C. Joseph Roberts, III, West Monroe, for appellant.
    William J. Guste, Jr., Atty. Gen., Barbara B. Rutledge, Asst. Atty. Gen., Baton Rouge, Johnny Parkerson, Dist. Atty., Nancy F. Gilliland, Asst. Dist. Atty., Monroe, for ap-pellee.
    Before HALL, JASPER E. JONES and NORRIS, JJ.
   HALL, Judge.

The defendant, Willie E. Pendleton, was charged by bill of information with attempted second degree murder in violation of LSA-R.S. 14:27 and 14:30.1. He pled not guilty. Later, pursuant to a plea bargain, defendant pled guilty to the crime of attempted second degree battery in violation of LSA-R.S. 14:27 and 14:34.1. He was sentenced to two years imprisonment at hard labor. The defendant appealed, assigning as error the excessiveness of the sentence.

Defendant argues that defendant should have been placed on probation or at the most sentenced to imprisonment without hard labor. It is argued that defendant is only 21 years of age, has no prior felony convictions, is not a hardened criminal, and that the incident giving rise to the charge was an isolated immature act on the part of defendant which does not justify a finding that there is an undue risk that the defendant might commit another violent crime.

On the date of the offense the defendant and the victim were both at the home of another person in Monroe. The defendant and the victim became involved in an argument. Both had probably been drinking. They left the house and later in the day both returned. The defendant had a pistol, approached the victim who was in or standing near ^ truck, and the defendant struck the victim with the butt of the weapon. The gun apparently discharged accidentally, striking the vehicle and the defendant then fired another shot which struck the victim in the shoulder.

The transcript of the sentencing hearing discloses that the trial court thoroughly considered the factors enumerated in LSA-C.Cr.P. Art. 894.1(B), found that the imposition of a sentence of imprisonment was justified in accordance with the guidelines enumerated in Subsection (A), and clearly articulated for the record the considerations taken into account and the factual basis therefor in imposing sentence in accordance with Subsection (C).

In deciding whether or not suspension of sentence or probation was appropriate, the court noted that defendant’s criminal conduct threatened severe harm because it threatened death. The defendant must have contemplated that his conduct would constitute a threat of serious harm, because any time a person shoots someone with a firearm he should recognize it is going to cause serious harm. In determining whether defendant acted under strong provocation, the court stated it found that the defendant was drinking and was probably provoked by an argument of some sort but that it did not find this sufficient or strong provocation to warrant defendant’s actions. Another factor considered was whether the victim of the criminal conduct induced or facilitated its commission, in connection with which the court noted that the victim participated in the argument, but that the victim had not threatened the defendant with any weapon or done anything else to justify defendant’s conduct. Also mentioned were defendant’s prior misdemeanor convictions, three of which involved crimes of violence. It was stated that defendant had shown a propensity in the past to resort to violence and that the court feared this conduct may result again in the future. Additionally, the court discussed the three factors enumerated in Subsection (A) and found that all three factors weighed in favor of imprisonment.

The sentence is entirely justified for the reasons stated by the trial court, and is not constitutionally excessive.

The maximum sentence for the offense charged is two and one-half years imprisonment. The trial court did not consider, and neither the state nor the defendant make mention of, LSA-C.Cr.P. Art. 893.1 which provides that when the court makes a finding that a firearm was used in the commission of a felony and when suspension of sentence is not otherwise prohibited, the court shall impose a sentence which is not less than the maximum sentence provided by law if the maximum sentence is less than five years, and that imposition or execution of sentence shall not be suspended and the offender shall not be eligible for probation or parole. The sentence imposed by the trial court is justified without reference to that article.

The conviction and sentence are affirmed.

Affirmed.


text:
    CITY OF BOSSIER CITY, Respondent, v. John H. JACOBS, Relator.
    No. 15391-KW.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 20, 1983.

      Michael E. Daniel, Bossier City, for relator.
    William J. Guste, Jr., Atty. Gen., Barbara B. Rutledge, Asst. Atty. Gen., Baton Rouge, Harvey P. Delaune, City Atty., James D. Hall, Asst. City Atty., Bossier City, for respondent.
    Before HALL, JASPER E. JONES and NORRIS, JJ.
   HALL, Judge.

The defendant was charged by affidavit filed in the City Court of Bossier City with criminal mischief in violation of Section 8-91(7) of the Bossier City Code of Ordinances in that he did “act in such a manner as to annoy, disturb, interfere with, obstruct, or be offensive to others.” Defendant filed a motion to quash the affidavit on several grounds including the unconstitutionality of the ordinance as written and as applied to this defendant. The motion was overruled by the trial court and the defendant applied to this court for writs, urging that the ordinance is unconstitutionally vague and overbroad and thus violative of the due process clauses of both the United States and the Louisiana Constitutions and that as written and as applied to the defendant in this case unconstitutionally infringes on the defendant’s First Amendment rights regarding freedom of speech and expression. Writs were granted by this court to consider the correctness of the trial court’s ruling.

Upon further consideration this court has determined that the writs were improvidently granted and we recall the writs and set aside the stay order previously granted.

The exercise of this court’s supervisory jurisdiction at this interlocutory stage of the proceeding is not warranted because the defendant has an adequate remedy by appeal in the event he is convicted. The contention of unconstitutionality of the ordinance may be urged on appeal. Further, the defendant has not exhausted his remedy of review by the district court under that court’s appellate and supervisory jurisdiction.

An appeal from a city court conviction for violation of a city ordinance lies to the district court of the parish in which the court of original jurisdiction is located. LSA-R.S. 13:1896 B. A district court has supervisory jurisdiction in aid of its appellate jurisdiction. Art. 5, Sec. 2, Louisiana Constitution. The Twenty-Sixth Judicial District Court for Bossier Parish would have jurisdiction of a writ application filed in that court directed at the overruling of the motion to quash in this case.

A court of appeal has supervisory jurisdiction over all cases arising within its circuit. Art. 5, Sec. 10(A), Louisiana Constitution. Prior to its amendment in 1980, Art. 5, Sec. 10(A) provided that a court of appeal has supervisory jurisdiction over cases in which an appeal would lie to it. Under the constitutional article as amended in 1980, the supervisory jurisdiction of the courts of appeal was expanded to include not only cases in which an appeal would lie to the court of appeal, but also all other cases which arise within its geographical circuit. Therefore, the court of appeal and the district court have concurrent supervisory jurisdiction over city court cases charging violation of a municipal ordinance.

The policy of this court of appeal is, however, to ordinarily decline to exercise supervisory jurisdiction in criminal cases appealable to the district court over which the district court has supervisory jurisdiction unless and until the applicant has exhausted his remedies in the lower courts. This policy is consistent with the policy expressed by the Louisiana Supreme Court prior to the vesting of criminal appellate jurisdiction in the courts of appeal. In Dardare v. Barnes, 326 So.2d 335 (La.1976), the supreme court denied defendant’s application for writs with the following statement:

“Writ denied. Proper remedy by appeal to district court. R.S. 13:1896, as amended. Likewise, any application for writs in aid of its jurisdiction should be directed to the district court. La. Const, art. 5 Sec. 2 (1974).
“DIXON, J., is of the opinion that this court should act and issue the writ of mandamus to the justice of the peace as an act of judicial economy.”

State v. Short, 339 So.2d 326 (La.1976) involved a prosecution in a parish court for violations of the parish obscenity ordinance. The supreme court granted writs on the application of the state to examine the propriety of the trial court’s ruling suppressing certain evidence. The court concluded that the writ was improvidently granted “contrary to our policy that we will not grant writs under our supervisory jurisdiction when recourse in lower courts of this state has not been exhausted.” The court explained that the state should have sought review by appeal to the district court as authorized by LSA-R.S. 13:1896 B, or by application to the district court for supervisory writs incident to the district court’s appellate jurisdiction. Writs were recalled, reserving to the state the right to seek relief in the appropriate forum.

For the reasons assigned, the writ issued in this case is recalled, the stay order granted by this court is set aside, and the case is remanded to the City Court of Bossier City for further proceedings in accordance with law, reserving to the defendant the right and opportunity to seek relief in the appropriate appellate forum.

Writ recalled, stay order set aside, and case remanded.

      . After the defendant’s motion to quash was overruled and prior to the filing of the writ application in this court, the affidavit was amended to read as follows:
      “On or about the 3rd day of August, A.D. 1982 within the limits of the City of Bossier City, Ward 2, Bossier Parish, Louisiana, JOHN H. JACOBS did violate the provisions of the Code of Ordinances, City of Bossier City, Louisiana, Section 8-91-7, in that he did act in such a manner as to annoy, disturb, interfere with, obstruct, or be offensive to others by:
      “(a) Entering the main office of Bossier Rural Electric Membership dressed in a Nazi uniform.
      “(b) Dumping a bag full of coins on to the main counter of the business where customers pay their bills.
      “(c) By stacking the coins on the counter at the BREMCO office.
      “(d) By knocking the coins off of the counter on to the floor.
      contrary to the form of the Code of Ordinances, City of Bossier City, Louisiana in such cases made and provided, and against the peace and dignity of the same.”
      The ordinance provides:
      “Sec. 8-91. Criminal mischief.
      “It shall be unlawful for any person to commit the crime of criminal mischief. Criminal mischief is the intentional performance of any of the following acts: ...
      “(7) Acting in such a manner as to annoy, disturb, interfere with, obstruct, or be offensive to others; .... ”

      . “Sec. 1896. Appeals in criminal cases; return day
      ... “B. City, parish and municipal courts. Review or appeal of a judgment in any criminal case tried under a state statute in city, parish or municipal court shall be as provided in Article 912.1 of the Louisiana Code of Criminal Procedure. Review of a judgment in any other criminal case tried in a city, parish or municipal court shall be by appeal to the district court of the parish in which the court of original jurisdiction is located, except in those cases which are appealable to the Supreme Court under the provisions of the Constitution. These appeals shall be on the law alone_” (Emphasis supplied)

      . Art. 5, Sec. 2, Louisiana Constitution
      “Sec. 2. Habeas Corpus, Needful Writs, Orders and Process; Contempt
      “Section 2. A judge may issue writs of habeas corpus and all other needful writs, orders, and process in aid of the jurisdiction of his court....”

      . Art. 5, Sec. 10(A), Louisiana Constitution
      “Sec. 10. (A) Jurisdiction. Except as otherwise provided by this constitution, a court of appeal has appellate jurisdiction of (1) all civil matters, (2) all matters appealed from family and juvenile courts, and (3) all criminal cases triable by a jury, except as provided in Section 5, Paragraph (D)(2) of this Article. It has supervisory jurisdiction over cases which arise within its circuit_” (Emphasis supplied)


author: PRICE, Judge. MARVIN, Judge,

text:
    John Clayton FIELDER, Plaintiff-Appellant, v. TRIPLE S. MASONRY and St. Paul Fire and Marine Insurance Company, Defendants-Appellees.
    No. 15449-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 20, 1983.

      Gordon, Bailey & Associates by Jack M. Bailey, Jr., Shreveport, for plaintiff-appellant.
    Mayer, Smith & Roberts by Mark A. Goodwin, Shreveport, for defendants-appel-lees.
    Before PRICE, MARVIN, JASPER E. JONES, FRED W. JONES and NORRIS, JJ.
   PRICE, Judge.

This is an appeal from the trial court judgment awarding the plaintiff-appellant worker’s compensation benefits for 35 percent permanent loss of use of his left ankle due to an employment-related accident. Defendant employer has answered the appeal seeking reversal of that portion of the judgment casting it for court costs and expert witness fees. On reargument before a five-judge panel as required by Art. 5, § 8(B) Louisiana Constitution, we amend the judgment appealed and affirm.

Plaintiff sustained injury to his left ankle in September 1978, while employed by defendant as a bricklayer, when a large stone fell on it. The same ankle had been broken in 1970 in a horseback riding accident, and the left leg injured in an automobile accident approximately nine years before trial, but these injuries were not causing plaintiff difficulty when this latest injury occurred. Soon after the employment-related accident, surgery was performed on plaintiff’s ankle to alleviate pain from traumatic arthritis which had produced spurring on the ankle. The treating physician, Dr. Joffrión, felt plaintiff had improved to pre-injury status by January 16, 1979, and could return to his former activities. However, the traumatic arthritis continued to worsen, and a successful ankle fusion was performed in April 1979 to eliminate the pain by immobilizing the ankle joint. Plaintiff was once again released as able to return to work in March 1980.

Plaintiff attempted to return to work, but developed difficulty with his hip and knee and arthritis in the subtalar joint of the left foot just below the ankle. These problems were attributed to the additional stress on these joints as a result of the ankle fusion. He has a gait disturbance in the left leg which requires that he take special care on uneven surfaces. Plaintiff testified he is no longer able to perform many of the duties required of a bricklayer and was unproductive, often having to stop and sit down due to pain.

Defendant terminated plaintiff’s compensation benefits as a result of Dr. Joffrion’s release. Although he felt he could no longer work as a bricklayer, plaintiff secured employment performing other types of manual labor as a handyman of sorts, such as installing ceiling fans. He also officiated baseball and softball games and basketball games on the lower levels of competition.

According to the expert testimony, including that of Dr. Joffrion, plaintiff has at least a 35 percent loss of the motion of his left leg due to the employment-related accident and the resultant ankle fusion. Based on this testimony, the trial court awarded plaintiff judgment for 35 percent permanent partial disability of the left lower extremity pursuant to the La.R.S. 23:1221(4) schedule of benefits for loss of (or loss of use of) designated body members and bodily functions.

Plaintiff contends on appeal that the trial court erred in failing to find him totally and permanently disabled. He argues alternatively that he is permanently partially disabled and benefits should have been awarded pursuant to the wage differential provision of La.R.S. 23:1221(3).

La.R.S. 23:1221 defines permanent total disability as the inability “to engage in any gainful occupation for wages whether or not the same or similar occupation as that in which the employee was customarily engaged when injured and whether or not an occupation for which the employee, at the time of injury, was particularly fitted by reason of education, training, and experience ...”

Plaintiff maintains he should be classified as permanently totally disabled as an odd-lot worker in a competitive labor market because he can no longer effectively compete for employment. The test for application of the odd-lot doctrine was enunciated by the Louisiana Supreme Court in Oster v. Wetzel Printing, Inc., 390 So.2d 1318 (La.1980):

In order to determine whether the plaintiff fits within this category of odd-lot workers, he must show that because of his physical impairment, mental capacity, education, training, age, availability of employment in his area, and any other relevant factor, that he cannot perform the substantial and material parts of some gainful work or occupation with reasonable continuity. If the plaintiff is successful in showing a combination of factors indicating that the services which he is able to render are so limited in quality, quantity, or dependability that a market for his labor does not exist within which he can effectively compete, he has presented a prima facie case for classification in the odd-lot category. (Citations omitted.) At pages 1323-1324.

This doctrine was further applied to claimants who can work only in substantial pain, since one’s pain may appreciably limit the types of work available to him and thus greatly diminish the ability to compete in the labor market. Lattin v. Hica Corporation, 395 So.2d 690 (La.1981). The record establishes that plaintiff has difficulty and pain in activities involving climbing, squatting, or working on uneven or slanted surfaces due to the diminished motion of his ankle, additional stress on the knee and hip joints, and development of arthritis in the subtalar joint of the foot. The consensus of the expert medical witnesses was that he should not perform heavy physical labor which would place stress on his leg, but should not experience too much difficulty with light physical labor even if it required substantial standing.

The plaintiff has failed to demonstrate that a market for his labor does not exist within which he can effectively compete without substantial pain. He was trained in welding skills in connection with his masonry training and has performed welding jobs when masonry work was unavailable, both before and after his surgery. He has also successfully performed general light maintenance work, including installation of ceiling fans, for local retail outlets since the injury. Plaintiff’s education at this point is limited to a high school diploma. However, his successful completion of several hours of college credit indicates that his mental capacity is not so limited that he would be prohibited from expanding the job market in which he is able to compete by acquiring further education in the future.

Inasmuch as plaintiff failed to prove his “odd-lot” status, we hold that the trial court did not err in finding that the plaintiff is not totally and permanently disabled. See Schouest v. J. Ray McDermott & Co., Inc., 411 So.2d 1042 (La.1982); Kirkley v. DSI Transports, 416 So.2d 584 (La.App. 1st Cir.1982).

We do find, however, that the trial court erred in awarding benefits under Subsection (4) of La.R.S. 23:1221 as opposed to Subsection (3). Four physicians testified that plaintiff would continue to experience difficulty in performing any job involving heavy manual labor, such as bricklaying. Dr. Joffrion, the treating physician, testified he felt the plaintiff could return to his former employment, but would have to use special care in walking on the job site. However, he had not examined plaintiff since the post-fusion development of traumatic arthritis in his foot became evident.

The other doctors, who had conducted more recent examinations, felt that, because of the additional stress on plaintiff’s mobile joints and the developing arthritis, he was unsuited for an occupation involving much climbing and walking on uneven surfaces. They testified such activities would unduly stress his knee and hip and aggravate his arthritic condition. The plaintiff testified such activities were too painful for him to perform competently and he was in fact released from one such job due to unproductivity.

We feel the record clearly shows the plaintiff is unable to return to his former position. He is therefore permanently partially disabled.

La.R.S. 23:1221(3) provides the following schedule of payments of compensation benefits for permanent partial disability:

(3) For injury producing partial disability of the employee to perform the duties in which he was customarily engaged when injured or duties of the same or similar character, nature, or description for which he was fitted by education, training, and experience, sixty-six and two-thirds per centum of the difference between the wages the employee actually earns in any week thereafter in any gainful occupation for wages, whether or not the same or a similar occupation as that in which the employee was customarily engaged when injured and whether or not an occupation for which the employee, at the time of injury was particularly fitted by reason of education, training, and experience, during the period of disability, ... and not beyond a maximum of four hundred fifty weeks for such partial disability resulting from injury occurring on and after September 1, 1977;

The fourth subsection provides benefits for loss of particular members of the body, loss of the use of such members, and other impairments.

The Louisiana Supreme Court dealt with these provisions in Jacks v. Banister Pipelines America, 418 So.2d 524 (La.1982) in which it was stated:

The statute does not explicate the relationship between the specific loss schedule and the total and partial disability provisions. In a case in which a specific loss also results in total or partial disability for the worker, the act does not give either remedy priority or state whether the remedies are cumulative or optional....
The prevailing interpretation is that an employee may not recover compensation both for a total or partial disability and for a specific loss but he may recover for one or the other, the employee being permitted recovery under whichever provision affords him greater compensation. Id, at 527.

We therefore find plaintiff is entitled to an award for permanent partial disability under the wage differential provision of Subsection (3) which will afford him. greater compensation.

We find no error in the trial court’s denial of penalties and attorneys fees. The penalty provision is stricti juris and should be imposed only in those instances in which the facts negate probable cause for nonpayment. Crawford v. Al Smith Plumbing and Heating Service, Inc., 352 So.2d 669 (La.1977). Plaintiff’s treating physician had pronounced him able to return to work. The plaintiff did in fact subsequently return to his former trade. In light of the substantial legal dispute over this claimant’s disability, we cannot say that the defendant acted arbitrarily or capriciously in terminating benefits to this claimant.

Defendant contends on appeal that the trial court abused its discretion in assessing court costs and expert witness fees against it. La.C.C.P. Art. 1920 provides that the court may render judgment for a cost against any party as the court considers equitable. We find no abuse of that discretion in the trial court’s assessment.

For the reasons assigned, the judgment appealed is amended and, as amended, affirmed, and there is now judgment in favor of plaintiff John Clayton Fielder, awarding compensation benefits for partial disability, pursuant to the provisions of La.R.S. 23:1221(3). Benefits are to cover the period commencing February 27,1981, and shall be received throughout the period of disability, not to exceed 450 weeks from September 23, 1978. Said disability benefits are subject to a credit for any benefits previously paid by the employer under the Louisiana R.S. 23:1221(4) scheduled loss provision, pursuant to the now amended trial court judgment. Legal interest shall accrue on all past due installments owed from date due until paid. Costs of this appeal are assessed to defendants-appellees.

AMENDED and AFFIRMED.

MARVIN, J., dissents and assigns written reasons.

MARVIN, Judge,

dissenting.

The primary issue in claimant’s appeal is whether the trial court erred in concluding that claimant sustained only a scheduled loss and was not disabled, either totally or partially, as a result of his 1978 accident.

This issue is factual, primarily one of credibility, and is best resolved by the trial court, whose determination we may not disturb where it is reasonable and is supported by the record. This court’s determination that claimant is partially disabled is contrary, in my opinion, to the proper allocation of functions between the trial courts and appellate courts. Canter v. Koehring Company, 283 So.2d 716 (La.1973); Cadiere v. West-Gibson Products Co., Inc., 364 So.2d 998 (La.1978). I dissent because I believe the record strongly supports the conclusions of the trial court.

Claimant broke his ankle in 1970 and his leg sometimes before the 1978 accident complained of. He had arthritis in his ankle as a result of these earlier injuries. Before the 1978 injury, claimant sometimes limped, had difficulty, and was “careful,” with his leg when working as a bricklayer on a scaffold. Medical and lay testimony support these findings.

After the 1978 accident and resulting surgeries removed the pre-1978 plates and pins and then fused his ankle, the claimant was temporarily totally disabled. After recovery, he had less pain but perhaps more difficulty with the ankle because of the fusion, but still in the first quarter of 1981, he refereed basketball games for pay. Motion pictures show him refereeing three games in about four hours. In his initial deposition he admitted umpiring softball games and other activities, but flatly denied refereeing basketball games even though he was asked several times. After claimant learned of the motion picture, he attempted to explain in his testimony that he was “confused” during his deposition. His deposition does not indicate or suggest any such “confusion.”

His treating orthopedic surgeon, who had seen him in 1976 and who saw him 25 times between the 1978 injury and January 13, 1981, and who performed the surgeries after 1978, said that claimant reached pre-in-jury status in late 1979 and released claimant to return to work as a bricklayer in 1980. This doctor opined that claimant had a 30 percent “disability” of the leg.

A second orthopedist saw claimant six times between December 10,1980, and June 22,1981. He agreed with the treating physician’s estimate of 30 percent disability of the leg. At first he did not think claimant could return to work as a bricklayer. On May 22,1981, he said that claimant could do whatever he could tolerate. On June 22, 1981, he said that claimant was probably able to do physical labor, that his pain was mild and was not significantly disabling.

A third orthopedist saw claimant one time on August 15, 1980. He suggested that claimant should not return to work as a bricklayer, estimated the disability of the leg at 35-40 percent, but agreed that the treating orthopedist could make the comparison of claimant’s pre and post-1978 injury condition better than anyone and that claimant could climb scaffolding but that it would be painful.

A rheumatologist who saw claimant four times between December 1980 and June 29, 1982, said he saw no reason why claimant could not perform construction work, lifting, stooping, and walking.

In late 1980, and 1981, and before trial in 1982, claimant worked at many jobs, even sometimes laying bricks on odd jobs, climbed ladders and into attics installing fans, and did physical work as a roustabout and welder at other times.

The trial court’s conclusion that claimant was not disabled because of pain after February 1981, either partially or totally, is amply supported by the record, is reasonable, and is not clearly wrong or manifestly erroneous. In my opinion, the trial court, weighing and determining credibility issues, correctly limited claimant to the scheduled loss. LRS 23:1221(4).

I would affirm the judgment of the trial court because it is reasonable, supported, and is not clearly wrong.

      . From a proposed amendment of the trial court judgment on our original hearing, one judge of the three-judge panel dissented as to the proposed result reached by that panel.


author: MARVIN, Judge.

text:
    STATE of Louisiana, Plaintiff-Appellee, v. Robert Earnest SMITH, Defendant-Appellant.
    No. 15481-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 20, 1983.
    Percy A. Ford, Jr., West Monroe, for defendant-appellant.
    Michael J. Fontenot, Asst. Dist. Atty., Monroe, for plaintiff-appellee.
    Before PRICE, MARVIN and SEXTON, JJ.
   MARVIN, Judge.

Robert Smith appeals his conviction by a jury of armed robbery, contending that his motion to suppress incriminating statements made to police should have been sustained because he did not knowingly and intelligently waive his Miranda rights and did not freely and voluntarily make the statements to law enforcement officers. Defendant’s contentions are not supported by the record.

Defendant’s accomplice and lookout during the robbery implicated defendant as the armed robber. Police officers testified that when defendant was later arrested the Miranda rights were read to him. When defendant was being driven to the jail he began talking to police officers in the vehicle and was again informed of his Miranda rights and was told that he should not be making statements. When defendant reached the police station he was informed of his Miranda rights before and at the beginning of a taped conversation with police officers. There he also initialed a waiver of rights form. This record is replete with evidence to support the conclusion that a knowing and intelligent waiver of Miranda rights occurred and that defendant’s statements were freely and voluntarily made.

The conviction is AFFIRMED.


author: PRICE, Judge.

text:
    STATE of Louisiana, Respondent, v. William C. KNOWLES, Relator.
    No. 15552-KW.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 20, 1983.
    Writ Denied Nov. 28, 1983.
    Rankin, Yeldell, Herring & Katz by Charles R. Herring, Jr., Bastrop, for relator.
    William J. Guste, Atty. Gen., Baton Rouge, Johnny C. Parkerson, Dist. Atty., Monroe, Ellen R. Eade, Asst. Dist. Atty., Bastrop, for respondent State of La.
    Before PRICE, HALL and SEXTON, JJ.
   PRICE, Judge.

In this writ application, William Knowles is seeking review of a denial of his motion to suppress. He is charged with Possession of Marijuana in violation of La.R.S. 40:966. He seeks to suppress the marijuana cigarettes which were found in his possession on a traffic violation stop. We granted defendant’s application to permit us to review the evidence presented on the trial of the motion to suppress. After full review of the evidence presented, we find no error in the trial court denial of defendant’s motion and recall the writ previously granted for the reasons assigned.

FACTS

Defendant Knowles was stopped by the police for speeding and running two stop signs. As the police approached, Knowles got out of his car. When the officers were standing four to five feet away from the defendant, they viewed a partially burned, hand-rolled cigarette stuck to the defendant’s trousers. After seizing the cigarette, Officer Owens closely examined it and determined that it contained marijuana. The defendant was arrested on a charge of Possession and his car was driven to the police station with defendant’s permission by one of the officers. During this drive, one cigarette and four partially burned cigarettes containing marijuana were found in the vehicle.

The defendant contends that the initial seizure of the marijuana cigarette which was stuck to his clothing was illegal, since the officers could not determine upon sight whether the white paper contained marijuana. The defendant further contends that the subsequent discovery of additional evidence upon entry into his vehicle resulted directly from his initial seizure and illegal arrest and the evidence discovered should therefore be suppressed as evidence.

A search and seizure conducted without a warrant is presumed unreasonable unless it is justified by one of the narrowly drawn exceptions to the warrant requirement. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); State v. Hernandez, 410 So.2d 1381 (La.1982); State v. Banks, 363 So.2d 491 (La.1978). After the defendant makes an initial showing that a warrantless search occurred, the burden of proof shifts to the state to affirmatively show that the search is justified under one of the narrow exceptions to the rule requiring a search warrant. State v. Hernandez, supra.

In the instant case, the defendant was not arrested at the time that the officer seized the evidence from the defendant’s clothing. The evidence was not seized during a search incident to an arrest. The only possible justification for the initial warrantless seizure of the marijuana cigarette from the defendant’s clothing is that it was in plain view and exigent circumstances were present.

In order for a warrantless seizure to come under the plain view rule, three conditions must be satisfied: (1) there must be a prior justification for an intrusion into a protected area; (2) in the course of which evidence is inadvertently discovered; and (3) where it is immediately apparent without close inspection that the items are evidence or contraband. State v. McGary, 397 So.2d 1305 (La.1981); State v. Rodriguez, 396 So.2d 1312 (La.1981).

The first two requirements of this rule are present under the facts of this case. The officers were justified in stopping the defendant for traffic violations and in requesting that the defendant step outside of his car. The portion of the hand-rolled cigarette which was stuck to the defendant’s clothing was inadvertently discovered by the officers during the course of this stop. At issue is the third requirement of whether it was immediately apparent to the officers without close inspection that the object on the defendant’s clothing was contraband.

In support of his argument that the plain view doctrine is not applicable under the facts of this case, defendant relies on State v. Varnell, 410 So.2d 1108 (La.1982), State v. Pomes, 376 So.2d 133 (La.1979), State v. Davis, 359 So.2d 986 (La.1978), and State v. Meichel, 290 So.2d 878 (La.1974).

Although these cases concerned whether seizure of contraband evidence without a warrant was justified under the plain view doctrine, the primary focus was on the reasonableness of the initial stop of the defendant by the arresting officer. They therefore are distinguishable from the instant case as there is no question that the arresting officers had probable cause to stop the defendant for the traffic violations.

We find the recent U.S. Supreme Court decision in Texas v. Brown,-U.S.-, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983) controlling and that applying the analysis of Brown to the instant case, the partially burned marijuana cigarette, though sheathed in paper, was properly seized as contraband by the officers who were trained in the area of marijuana detection. In Brown an officer stopped the defendant at a routine driver’s license checkpoint. While waiting to see the driver’s license, the officer shined a flashlight into the dark car and saw an opaque, green party balloon knotted near the tip, fall from the driver’s hand to the seat. The officer then focused the light on the glove compartment where the defendant was searching for his wallet. The officer saw plastic vials, loose white powder, and an open bag of party balloons in the glove compartment. When Brown could not locate his driver’s license, the officer ordered him out of the car and seized the green balloon from the seat. The officer noticed a powdery substance within the tied-off portion of the balloon.

As a result, Brown was subsequently arrested and tried for unlawful possession of heroin. The defendant’s conviction was reversed by the Texas Court of Criminal Appeals on the ground that the evidence should have been suppressed because it was obtained in violation of the Fourth Amendment. The state’s argument that the plain view doctrine applied was rejected by the Texas Appellate Court on the basis that the contraband substance which was inside the balloon was not “immediately apparent” to the officer. The U.S. Supreme Court reversed the ruling of the Texas Court of Criminal Appeals upon finding that the seizure of the balloon by the officer was proper. The court found that because of the officer’s experience in narcotics arrests through which he became aware that balloons were frequently used to carry drugs, the officer possessed probable cause to believe that the balloon contained an illicit substance in this instance. The Court stated at 103 S.Ct. 1543 as follows:

The fact that Maples could not see through the opaque fabric of the balloon is all but irrelevant; the distinctive character of the balloon itself spoke volumes as to its contents — particularly to the trained eye of the officer.

Justice Powell in a concurring opinion writes at 103 S.Ct. page 1545 as follows:

Even if it were not generally known that a balloon is a common container for carrying illegal narcotics, we have recognized that a law enforcement officer may rely on his training and experience to draw inferences and make deductions that might well elude an untrained person. United States v. Cortez, 449 U.S. 411, 418, 101 S.Ct. 690, 695, 66 L.Ed.2d 621 (1981). We are not advised of any innocent item that is commonly carried in uninflated tied off balloons such as the' one Office Maples seized.

And finally, Justice Stevens with Justice Brennan and Justice Marshall joining (concurring in the judgment), writes:

This Court reverses, holding that even though the contents of the balloon were not visible to the officer, incriminating evidence was immediately apparent because he had probable cause to believe the balloon contained an illicit substance. I agree with the Court that contraband need not be visible in order for a plain view seizure to be justified. I therefore concur in the conclusion that the Texas Court interpreted the Fourth Amendment more strictly than is required.

We have not been referred to and are not aware of any Louisiana Supreme Court decisions on the issue under consideration since Texas v. Brown was rendered. The decisions of the Louisiana Supreme Court prior to Brown vacillated on how narrowly the plain view doctrine should be applied. See State v. Jackson, 263 La. 849, 269 So.2d 465 (1972); State v. Bourg, 332 So.2d 235 (La.1976) and State v. Braud, 357 So.2d 545 (La.1978); upholding seizures under circumstances somewhat analogous to Brown. Also see State v. Pomes, 376 So.2d 133 (La.1979), which found a seizure was not justified under the plain view doctrine where it was not immediately apparent to an officer who seized a foil wrapped pill bottle that contraband was contained inside.

The thrust of defendant’s argument is that the contraband was not in full view as it was completely concealed in a cigarette paper which could just as well have contained tobacco as marijuana. He contends that Brown holds that a warrantless seizure of a container containing contraband is impermissible if the container is normally used in connection with legal substances and therefore it could not be immediately apparent to the officers that the container concealed contraband.

This is not our understanding of the majority opinion. The court in Brown has rejected the requirement that the contents of a suspicious container be “immediately apparent” to an officer for application of the plain view doctrine and has adopted a more flexible standard. We quote the courts discussion of this issue from Texas v. Brown, Supra, 103 S.Ct. at pages 1542 and 1543, as follows:

In Colorado v. Bannister, 449 U.S. 1, 3-4, 101 S.Ct. 42 at 43-44, 66 L.Ed.2d 1, we applied what was in substance the plain view doctrine to an officer’s seizure of evidence from an automobile. Id., at n. 4. The officer noticed that the occupants of the automobile matched a description of persons suspected of a theft and that auto parts in the open glove compartment of the car similarly resembled ones reported stolen. The Court held that these facts supplied the officer with “probable cause,” id., at 4,101 S.Ct., at 43, and therefore, that he could seize the incriminating items from the car without a warrant. Plainly, the Court did not view the “immediately apparent” language of Coolidge as establishing any requirement that a police officer “know” that certain items are contraband or evidence of a crime. Indeed, Colorado v. Bannister, supra, was merely an application of the rule, set forth .in Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), that “[t]he seizure of property in plain view involves no invasion of privacy and is presumptively reasonable, assuming that there is probable cause to associate the property with criminal activity.” Id., at 587, 100 S.Ct. at 1380 (emphasis added). We think this statement of the rule from Payton, supra, requiring probable cause for seizure in the ordinary case, is consistent with the Fourth Amendment and we reaffirm it here.
As the Court frequently has remarked, probable cause is a flexible, commonsense standard. It merely requires that the facts available to the officer would “warrant a man of reasonable caution in the belief,” Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, 288, 69 L.Ed. 543 (1925), that certain items may be contraband or stolen property or useful as evidence of a crime; it does not demand any showing that such a belief be correct or more likely true than false. A “practical, nontechnical” probability that incriminating evidence is involved is all that is required.. ..

In applying the rationale of Brown to the instant ease, the critical question is whether the officers could have had a reasonable suspicion that the partially burned cigarette paper in plain view on defendant’s trousers when he stepped from his automobile contained the contraband substance marijuana. Both officers testified that the object which they observed was a short, fat cigarette about one quarter inch in length. It was burned on one end and had a leafy substance in it. They both testified they had completed a course in dangerous drug detection. One of the officers had eleven years police experience and had participated in narcotics investigations and arrests which resulted in marijuana convictions. Both officers testified that the appearance of the hand-rolled cigarette seized from defendant was characteristic of the usual appearance of a marijuana cigarette.

Considering the totality of the circumstances surrounding the seizure and since exigent circumstances were present as defendant could have disposed of the evidence before a warrant could be issued, we find the warrantless seizure was permissible in this instance.

For the foregoing reasons, the writ is recalled and this case is remanded to the trial court for further proceedings.


author: SEXTON, Judge.

text:
    STATE of Louisiana, Appellee, v. James COLLIER, Appellant.
    No. 15559-KW.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 20, 1983.
    Love, Rigby, Dehan, Love & McDaniel by William G. Nader, Shreveport, for appellant.
    Paul J. Carmouche, Dist. Atty., Barbara B. Rutledge, Scott J. Crichton, Catherine M. Estopinal, Asst. Dist. Attys., Shreveport, for appellee.
    Before HALL, MARVIN and SEXTON, JJ.
   SEXTON, Judge.

We previously granted writs of review herein to consider the defendant’s misdemeanor conviction for violation of a Caddo Parish ordinance prohibiting owners from allowing dogs to “run at large.” We reverse the conviction.

On September 19, 1982, the defendant’s neighbor, Thomas H. Hoffman, was awakened by a noise about 8:00 a.m. Upon looking out the window, Mr. Hoffman testified that he saw a German shepherd belonging to the defendant partially inside a rabbit cage in his yard, and another shepherd belonging to the defendant “grabbing at the wire.” Warning shouts and a subsequent warning shot from Mr. Hoffman’s shotgun did not discourage the dogs, he further testified. At that point he shot the dog in the cage. As the other dog came toward his position on the porch, he also shot it. He then went inside and called the Sheriff’s office. That office dispatched Deputy Steve Thompkins, who testified that he observed that the dogs had been shot, and found that the defendant, Mr. Collier, was not at home. Upon discussing the matter with Mr. Collier later, he testified that Mr. Collier admitted owning the dogs and stated that the dogs were allowed to run in the yard but were trained not to leave the yard.

Mr. Collier runs a guard dog security company called Jaws Protection Agency from his home. He is principally assisted by his son and a nephew. The defense evidence consisted of the testimony of Mr. Collier and his son, Brian. That evidence showed that the defendant was not at home at the time of the incident. Just prior to the incident, Brian was grooming the two shepherds in the front yard. One of the dogs was a seven and one-half month old puppy. The other dog was some five and one-half years old and apparently served as the family pet as well as a guard dog, when needed. The older dog was obedience trained and was also trained to attack and protect on command. The younger dog was obedience trained only. Mr. Collier testified that he was too young for the other training.

While Brian was grooming the dogs, the phone rang and he left the dogs in what was termed the “down stay” position and went to answer the phone. In this position the dogs are ordered to lie down and stay in the position where they are located. Brian testified that on returning from the phone, the dogs were gone, a circumstance which he stated was unusual and unexpected.

After looking around for them to no avail, and as he was going to obtain assistance in locating them, Deputy Thompkins arrived. Brian then learned of the dogs’ fate.

The defendant James Collier was subsequently charged with violating Section 4-97 of Caddo Parish Ordinance No. 2011. The bill of information charged that the defendant:

“did not confine his two German shepards (sic) to prevent their running at large and were not under the direct control of a competent person by means of a secure leash or other equivalent means of positive control, in a dedicated or recorded subdivision of Caddo Parish containing at least 20 dwelling units within one-half mile radius or any mobile home park within the parish .... ” (Emphasis ours)

In pertinent part, Section 4-49 of Ordinance No. 2011 of Caddo Parish prohibits “dogs running at large” in the following manner:

“(a) This subsection shall apply to dogs running at large within the geographical limits of a dedicated and/or recorded subdivision of Caddo Parish containing at least twenty (20) dwelling units within a one-half mile radius or any other area containing at least twenty (20) dwelling units within a one-half mile radius or any mobile home park within the parish.
“(b) Every owner of a dog or dogs shall confine the same so as to prevent their running at large and such enclosure shall be maintained in a clean and sanitary condition. When dogs are not confined in an appropriate enclosure, they must be under the direct control of a competent person by means of positive control. The foregoing shall not be applicable in the case of dogs engaged in obedience training or competition where such dogs are in fact under voice or other effective means of control of a competent person.

The defendant was found guilty as charged in a bench trial on March 23, 1983. He was sentenced on that same date to pay a fine of $50.00 and costs, or serve ten days in jail. The court ordered the fine and jail sentence suspended upon payment of costs. The defendant subsequently perfected this writ application complaining, among other things, that the trial court erred in denying a motion for judgment of acquittal at the close of the State’s evidence and in subsequently allowing the State to reopen its case to present additional evidence on an essential element of the offense after that motion. Finding merit in this contention, we do not address the other issue raised by the defendant.

At the conclusion of the State’s evidence — which consisted of the testimony of Mr. Hoffman and Deputy Thompkins — the defense moved for a judgment of acquittal under the authority of LSA-C.Cr.P. Art. 778. In so doing, the defense strenuously contended that the State had failed to prove an essential element of the offense, specifically that the defendant had allowed the dogs to run loose in a dedicated or recorded subdivision of Caddo Parish. The defense noted that the statute did indeed prohibit owners from allowing dogs to run at large in either a recorded subdivision with at least twenty dwelling units within a half-mile radius, or in any other area containing at least twenty dwelling units within a half-mile radius. However, the defendant was charged solely with allowing the dogs to run at large in a dedicated subdivision containing at least twenty dwelling units within a half-mile radius. The defense asserted that the State’s proof was deficient and that a judgment of acquittal was therefore mandated. Thus, the defense strenuously contended that while the State’s proof might meet the statute, it did not conform to the bill as charged.

Concerning the crucial question of residential density and whether the area was a dedicated subdivision, Mr. Hoffman testified in a vague and general manner. However, Deputy Thompkins testified positively that there were at least twenty dwelling units within a half-mile radius of the residence where this incident occurred. These were the only two witnesses for the State and there was no evidence introduced prior to the State reopening its case with respect to the existence of a dedicated or recorded subdivision.

After a recess and discussion in Chambers, the trial court noted that “the State moved in chambers to re-open its case to submit additional evidence insomuch I think the State almost concedes that the bill is ... improperly drafted based on the evidence adduced.” On the authority of State v. Boyd, 359 So.2d 931 (La.1978), the trial court allowed the State to reopen. After reopening, the State introduced the subdivision plat where both the defendant and Mr. Hoffman resided, thereby eliminating the objection complained of in the motion for a judgment of acquittal.

Generally speaking, the trial court has considerable latitude in determining whether a party to a criminal case is allowed to reopen. State v. Bush, 297 So.2d 415 (La.1974). (Affirmed trial court refusal to allow the defendant to reopen subsequent to the defense resting and the prosecution determining not to present a rebuttal, even though the defense indicated that the reason it wanted to reopen was to recall a witness to ask questions which had been misplaced in counsel’s notes.) State v. Boyd, 359 So.2d 931 (La.1978). (Affirmed trial court allowing the prosecution to reopen subsequent to resting, in order to recall a witness to show where a crucial soil sample had been taken.)

The State here relies heavily on Boyd, supra. It should be noted that Boyd was a prosecution for armed robbery before a jury. Just as in this cause, the defendant there had made a motion for a judgment of acquittal. However, such a motion was not then and is not now available in a trial before a jury.

LSA-C.Cr.P. Art. 778, which deals with the motion for judgment of acquittal, states:

“In a trial by the judge alone the court shall enter a judgment of acquittal on one or more of the offenses charged, on its own motion or on that of defendant, after the close of the state’s evidence or of all the evidence, if the evidence is insufficient to sustain a conviction.
“If the court denies a defendant’s motion for a judgment of acquittal at the close of the state’s case, the defendant may offer its evidence in defense.” (Emphasis ours)

It is clear that in this cause the State had failed to prove an essential element of the offense in its original presentation. The defendant was charged with allowing his dogs to run loose in a dedicated or recorded subdivision with twenty dwelling units in a ½ mile radius, and the State did not prove that the defendant in fact lived in a dedicated subdivision in Caddo Parish.

The defense then moved for acquittal and thereby pointed out the State’s failure. Only then, after the State’s neglect had been brought to its attention, did the State move to cure its deficiency. This action was allowed on the authority of Boyd, supra. We believe Boyd is not controlling as it was a trial before a jury, rather than a bench trial, such as in the instant case.

In a jury trial the judge has no authority to grant a judgment of acquittal. But in a bench trial, the judge is mandated by Article 778 to render a motion for judgment of acquittal if an essential element is not proven.

The denial of the motion for judgment of acquittal is subject to our review if no evidence of an essential element of the offense is presented. State v. Hargrave, 411 So.2d 1058 (La.1982); State v. Vaughn, 378 So.2d 905 (La.1979).

We therefore here hold that it is error to allow the State to reopen its case in a bench trial to prove an essential element of the offense charged after the State has closed, and after the defendant has moved for a judgment of acquittal. The conviction herein is therefore reversed.

REVERSED.

      . This motion, formerly known as a motion for directed verdict originally authorized — in discretionary terms — a judgment of acquittal by the trial court in a jury trial at the close of State’s evidence, or at the conclusion of all the evidence if the evidence was insufficient to sustain a conviction. That part of the statute authorizing such action was eliminated by Act 527 of 1975, prior to Boyd.


text:
    Nora Lee CARTER, Plaintiff-Appellant, v. P.K. SMITH CHEVROLET-OLDS, INC., et al., Defendant-Appellee.
    No. 15576-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 20, 1983.
    Rehearing Denied Oct. 20, 1983.
    Writ Denied Dec. 16, 1983.

      Gahagan & Gahagan by Fred S. Gahagan, Natchitoches, for plaintiff-appellant.
    Law Office of Lawson L. Swearingen, Jr., Monroe, by J. Robert Wooley for defendant-appellee, P.K. Smith Chevrolet-Olds, Inc.
    Simmons & Derr by Kermit M. Simmons, Winnfield, for defendant-appellee, Gibson’s Inc. & Sentry Ins. Co.
    Before PRICE, HALL and SEXTON, JJ.
   SEXTON, Judge.

Plaintiff sued for workers’ compensation benefits. The trial court found that plaintiff had not proven a work-related accident by a preponderance of the evidence, and rejected plaintiffs claims. We affirm.

Plaintiff in this cause is Nora Lee Carter, 46, residing in Winn Parish. Defendants are P.K. Smith Chevrolet-Olds, Incorporated (hereinafter referred to as Smith Chevrolet), and Gibson’s, Incorporated. Also joined as defendants were Sentry Insurance Company and Commercial Union Insurance Company, the compensation insurers of Smith Chevrolet and Gibson’s, respectively.

In February of 1979, Ms. Carter began working as a payroll clerk and bookkeeper at Gibson’s Shopping Center in Winnfield. Her employer was P.K. Smith, the franchise owner of the Gibson’s in Winnfield. After working for four or five months at Gibson’s, Ms. Carter was reassigned by Mr. Smith to similar duties at another Winnfield business owned by him — P.K. Smith Chevrolet Olds, Incorporated. Thus, early in the summer of 1980, Ms. Carter was transferred to Smith Chevrolet, where she continued to work as a bookkeeper.

Ms. Carter alleged in her petition and at trial that she suffered a disabling work injury on June 24, 1980. Ms. Carter alleged, more specifically, that she injured her neck while lifting a heavy stack of invoices. As she described it at trial, “I reached overhead to pick up the bundle of invoices . .. and when I did well there was something happened to my neck and I dropped the bundle of invoices.” According to Ms. Carter, this event precipitated recurrent pain in her neck, left shoulder and arm, and tingling and numbness in the fingers of her left hand.

LSA-R.S. 23:1031 stipulates that “If an employee ... receives personal injury by accident arising out of and in the course of his employment, his employer shall pay compensation .... ” It is a rudimentary proposition of workers’ compensation law that a worker must prove the occurrence of a work-related accident by a preponderance, in order to prevail in a compensation proceeding. Prim v. City of Shreveport, 297 So.2d 421 (La.1974); Sprawls v. Sentry Insurance Co., 367 So.2d 1256 (La.App. 3d Cir.1979), writ denied 369 So.2d 156 (La.1979).

The trial court found that plaintiff did not prove, by a preponderance, the occurrence of an on-the-job, disability engendering accident. It accordingly dismissed plaintiff’s claims against all four defendants. The sole issue which is presented to this court on appeal is entirely factual: Was the trial court manifestly erroneous in finding that the plaintiff had not proven the occurrence of a work-related accident?

We observe, at the outset, that the record does contain some evidence which supports plaintiff’s claim that she suffered a work-related accident. Two members of her car pool, one of whom was plaintiff’s aunt, testified that on the date of her alleged accident, she accompanied them to lunch and related that she had hurt herself on the job. These same witnesses testified that she was evidently in considerable pain at that time. Plaintiffs aunt and sister-in-law testified that plaintiff told them that she hurt herself while lifting a ledger of invoices at Smith Chevrolet. Both testified that her physical capabilities were drastically reduced after June 24, 1980, the date of the alleged accident. Several doctors who examined or treated plaintiff testified that she told them, in relating her medical history, that she had injured herself while reaching overhead for a bundle of invoices at Smith Chevrolet.

Notwithstanding this corroborative evidence however, we note — as is more fully set out in Arceneaux v. Domingue, 365 So.2d 1330 (La.1978) — that manifest error analysis of a trial court’s factual findings is properly based on the entirety of the record. The trial court based its factual finding that no work accident was proven on gaps and inconsistencies in plaintiff’s version of the alleged event. Plaintiff testified that when she reached overhead to pick up the ledger of invoices and felt the sharp pain in her neck, she hollered and dropped the invoices on the floor. She testified, moreover, that co-worker Cheryl Goins saw her drop the invoices, heard her holler, and laughed. Plaintiff testified, moreover, that her immediate supervisor, Mrs. O’Neal, was in an adjoining office at the time of the accident. It was plaintiff’s testimony that Mrs. O’Neal heard the laugh, and asked what Ms. Goins was laughing about. Upon being told that plaintiff had injured herself, Mrs. O’Neal purportedly advised the plaintiff to see a doctor.

The reactions and responses of Ms. Goins and Mrs. O’Neal were an integral part of plaintiff’s version of the alleged accident. The trial court’s finding that no work accident was proven was based primarily upon the trial testimony of Ms. Goins and Mrs. O’Neal. These witnesses both denied having any recollection of the ledger being dropped, plaintiff’s shout, Ms. Goins’ laugh, Mrs. O’Neal’s query as to what Cheryl Goins was laughing about, or Mrs. O’Neal’s directive to plaintiff to consult a doctor. Thus, the trial court duly noted, Ms. Carter’s version of the accident and its surrounding events was repudiated by the testimony of her co-workers.

The trial court also felt that plaintiff had impugned her own credibility by her insistence, throughout the trial, that she did not have neck pain prior to the alleged work accident on June 24,1980. Plaintiff’s insistence, in this regard, was seriously undermined by the testimony of Dr. Carlton Greer that plaintiff “had experienced [in the winter of 1979] a pain or a sensation as though a wasp sting had occurred in her neck on the left side after she had picked up a five gallon can.”

The trial court’s credibility findings are corroborated by plaintiff’s equivocation as to the presence of neck pain prior to her alleged work accident on June 24, 1980, as well as by her co-worker’s repudiation of her version of the injury. This flaw in plaintiff’s credibility taints the corroborating testimony of plaintiff’s witnesses, since these witnesses received most of their information about the alleged accident from the plaintiff herself. Moreover, “Conclusions of fact by the trial court in a workmen’s compensation case are entitled to great weight and are not to be reversed unless manifestly in error.” Sprawls, supra, at 1257. Cadiere v. West Gibson Products Co., 364 So.2d 998 (La.1978); Butts v. Insurance Co. of North America, 352 So.2d 745 (La.App. 3d Cir.1977); Cooper v. Harris, 315 So.2d 331 (La.App.3d Cir.1975).

The record in this case, considered as a whole, provides ample basis for the trial court to have found that the plaintiff, Nora Lee Carter, did not prove by a preponderance the occurrence of a work-related accident. The trial court’s decree is therefore affirmed.

AFFIRMED.


author: NORRIS, Judge.

text:
    Johnny Ray GILCREASE, Plaintiff-Appellee, v. Rhonda McDonald GILCREASE, Defendant-Appellant.
    No. 15592-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 20, 1983.
    Rehearing Denied Oct. 20, 1983.
    Writ Denied Nov. 28, 1983.

      Love, Rigby, Dehan, Love & McDaniel by Samuel P. Love, Jr., Shreveport, for plaintiff-appellee.
    Nelson, Hammons & Johnson by Brian D. Smith, Shreveport, for defendant-appellant.
    Before HALL, JASPER E. JONES and NORRIS, JJ.
   NORRIS, Judge.

Rhonda McDonald Gilcrease appeals a judgment of the trial court awarding custody of her two minor daughters, the younger a child of the marriage and the older born of another union, to her former husband, Johnny Ray Gilcrease.

JURISDICTIONAL ISSUE

Upon our reading of this record, we noted that the parties stipulated that the motion for new trial filed herein was timely, obviously because they recognized that the timeliness of the filing of the motion for new trial insofar as it affected the timeliness of this appeal presented a potentially serious issue. Because it is necessary that we recognize our lack of jurisdiction on our own motion even when not raised by the parties, we are required to consider this issue. The parties to an appeal may not waive the jurisdictional requirement that an appeal be taken timely. La.C.C.P. Art. 2162; Peters v. Barry Manufacturing Co., 385 So.2d 1263 (La.App. 4th Cir.1980). Nor can a trial court or an appellate court waive this requirement. La.C.C.P. Art. 2162; Ardoin v. Dupree, 416 So.2d 648 (La.App. 3d Cir.1982); Anderson v. City of Baton Rouge, 381 So.2d 842 (La.App. 1st Cir.1980); Baldo v. Thibodeaux, 295 So.2d 866 (La. App. 4th Cir.1974). Thus, simply stipulating as to the timeliness of the filing of the motion for new trial was of no effect. However, because appeals are favored, we have closely scrutinized this record to determine if there is a legal basis upon which we can maintain the appeal.

At the close of argument, the trial court awarded custody of both children to Mr. Gilcrease and immediately thereafter stated:

Visitation rights Counsel should attempt to work out, and if unable to do so, the Court will set same.

Obviously and significantly, the trial judge left the matter open in order to allow the parties to work out Mrs. Gilcrease’s visitation privileges. Reasonable visitation rights were granted to Mrs. Gilcrease in the signed judgment; therefore, it is apparent that the matter was resolved subsequent to the rendition of the judgment. Under these circumstances, we can only conclude that the trial court took the matter under advisement. Thus, the delay for appealing did not commence until the mailing of the notice of the signing of the judgment. La. C.C.P. Arts. 1913; 1974; Schlegel v. Schlegel, 367 So.2d 904 (La.App. 4th Cir.1979). See also and compare Hamiter v. Hamiter, 414 So.2d 1379 (La.App. 2d Cir.1982) and cases cited therein. Accordingly, the delays for applying for a new trial did not begin to run until the clerk mailed the notice of judgment to each party, and Mrs. Gil-crease’s motion for new trial filed prior to the actual mailing thereof was timely and served to interrupt the appellate delays until the motion for new trial was actually ruled upon. Therefore, the order of appeal was filed within the applicable delay period for perfecting this appeal.

ON THE MERITS

On June 17, 1982, Johnny Ray Gilcrease filed a petition for divorce in which he requested custody of the minor child born of the parties’ marriage [Rhiannon, age 3] and of a minor child born to Mrs. Gilcrease prior to her marriage of whom he is not the biological father [Felyscha, age 7]. Mrs. Gilcrease was personally served with the petition and a rule to show cause why Mr. Gilcrease should not be awarded the care, custody and control of Rhiannon. Felyscha was not included in the rule because the judge who signed the order declined to include her since Mr. Gilcrease was not her parent. Obviously relying on the scope of the custody rule, Mrs. Gilcrease answered the petition and reconvened seeking custody only of Rhiannon and support for her.

On July 13, 1982, only the divorce issue was tried after which judgment was rendered granting Mr. Gilcrease a divorce on the grounds of adultery; the custody and support rules were continued until July 20, 1982. The judgment of divorce was signed July 19, 1982.

Trial of the custody issue commenced on July 20, 1982; the taking of evidence was concluded July 22,1982. Prior to the custody trial, a pre-trial conference was held at which it was agreed among the parties and the judge that Rhiannon would be the only child whose custody was at issue at the hearing. Felyscha’s custody was not to be at issue. This agreement was in keeping with the posture of the custody dispute as it was initially limited by the original rule to show cause.

The main thrust of the evidence presented on behalf of Mr. Gilcrease at this hearing was to show Mrs. Gilcrease’s moral unfitness, her failure to adequately care for the children and her poor housekeeping habits. While the twenty-six year old Mrs. Gil-crease admitted to illicit relations with five different men since the parties’ physical separation in February, 1981, and to conducting much of this type of activity in her apartment where she lived with her children, she denied the children’s ever having witnessed such activity or their being adversely affected by it. In January, 1982, she met her fifth lover, eighteen year old Art Belcher, and three weeks later he moved in with her. They lived together until after this suit was filed when they ceased the practice upon the advice of Mrs. Gilcrease’s attorney. Prior to the custody trial but before the judgment granting the divorce was actually signed, Mrs. Gilcrease and Mr. Belcher participated in a marriage ceremony.

There is some evidence contained within the record which tends to corroborate Mr. Gilcrease’s contention that Mrs. Gilcrease was a poor housekeeper. However, there is no direct evidence in the record that any of the conduct of which Mr. Gilcrease complains had an adverse effect on the children. For the most part, the witnesses for both parties were members of their respective families. Mrs. Gilcrease’s witnesses all testified that she loved and properly cared for her children and that she was an adequate housekeeper.

At the conclusion of the testimony, contrary to the pre-trial understanding, and to the surprise as well as over the strenuous objection of Mrs. Gilcrease’s counsel, the trial court on its own motion decided that he would consider the custody of both children to be at issue. This turn of events is reflected by the following colloquy:

MR. CARY: I want to object to the Court’s ruling from the standpoint that— we don’t record our pretrial conferences here as we do in federal court, but it was agreed — my recollection of that pretrial — was agreed that the only child we’re talking about is Rhiannon. That’s the only child that’s in the order. And when we first opened testimony, in order to protect myself in an enlargement of the pleadings by testimony, I objected. And the Court said that whenever we say “children”, we mean “child”.
THE COURT: That’s correct.
MR. CARY: I haven’t had an opportunity to read any of them. As I appreciate your ruling, unless I can convince you otherwise you are treating this evidence as pertaining to a request for custody for both children.
THE COURT: Both Children. And like I said, I apologize. You’re absolutely correct. I did inform you that it would be limited to Rhiannon and not to Felys-cha. And I did so out of complete igno-ranee as to what the state of the evidence would be. The defendant would be entitled to adequate time to prepare to contest it.
MR. CARY: Will the Court state for the record that in that pretrial I filed with the Court way in advance of this hearing, that the Court’s had before it in the hearing, states that Felyscha is not at issue and not a child of the marriage?
THE COURT: That is correct. Any objection to that Mr. Love?
MR. LOVE: No sir.
⅝ ‡ % ⅜ ♦ ⅜

Argument was heard on August 2, 1982 after which the court in oral reasons rendered judgment granting custody of both children to Mr. Gilcrease stating in part as follows:

Counsel for Mr. Gilcrease says there are two basic grounds the Court should consider to award custody of the children to his client. Not only do you have the open and notorious adulterous relationship — and it was open and it was known to the world — but you also have the fact that she was not a good homemaker. This is a matter which is seriously disputed by Ms. Gilcrease, but we noted with interest that even her parents did not unequivocally say she was an outstanding homemaker, but their testimony was couched in terms that for a working mother, she did well.
⅜ ‡ ⅝ sjs ⅜ ‡
There is no doubt in this Court’s mind that both parties love these children. We do find that Mr. Gilcrease has provided and cared for the children very well. They refer to him as Dad.
From the testimony we have heard, we do find that these two young girls are very close and should not be separated. We find, as argued by Counsel for Ms. Gilcrease, that other [than] discussions on the part of Ms. Gilcrease with female friends and what appeared to be embarrassing conduct in public at parties, there was little additional substantial evidence of adultery, except what came from her own admission, but the admission acknowledges that when she met Art Belch-er in December of 1981, that he was allowed to move into her apartment in January, 1982, and that he remained there until they were instructed by counsel that it would be wise that he move out, which he did. There is conflict as to whether he subsequently returned to live at the apartment — excuse me — at Janet Place thereafter, but we do find that the relationship continued.
As argued by counsel for Ms. Gilcrease, as to whether she had sufficiently redeemed and/or purged herself of past sins by her marriage to Mr. Belcher when given the opportunity to do so, although the judgment had not been signed, by virtue of the fact that it was in May of 1982, that the two took positive steps in that direction, we find that to be the case, that positive steps had been taken by the two to cement their relationship. But that was only the purchasing of rings, but with the tender age of Mr. Belcher, being eighteen and the lack of a stable employment, we find that he was in a large measure living with and off Ms. Gilcrease during the period of time he resided with her.
* * * * * *
We have read a wail [sic] of a lot of cases, and counsel have outlined them to this Court, and what we have to determine is: What is in the best interest of the children? These are young girls, and young girls by right should be with their mother, but has she, by her conduct, forfeited that right? Can it be said that the future would be different than the past, and the mere fact that rings were placed on lay-away in May by money put up by her, we cannot so find.
We do find that the limitations are clearly there if Mr. Gilcrease would be a proper person to rear his child. Yet, at the same time, having found the conduct that rises to the level of unfitness on the part of the mother as relates to the child of that marriage, it can spill over as relates to the oldest child as well, and we feel that Mr. Gilcrease should be awarded custody of both children, and that will be the judgment of the Court accordingly.
Mrs. Gilcrease appeals specifying the following errors:
I.The trial judge erred in denying custody to Appellant on the basis of prior sexual misconduct when Appellee failed to carry his burden of proving a detrimental effect of such conduct on the children.
II.The trial judge erred in failing to apply the “reformation” rule to award custody to Appellant due to Appellant’s reformation from any previous course of misconduct.
III. The trial judge erred in failing to properly consider the “stability of environment” factor which weighed heavily in favor of Appellant who had been responsible for raising the children from birth and who had had physical custody of the children since physical separation of the parties.
IV. The trial judge erred in failing to properly consider the impact of Appellee’s work-related frequent and extended absences from home which, as noted by the trial judge in his ruling, made an award of custody to Appellee tantamount to an award of custody to Appel-lee’s mother.
V.The trial judge erred in awarding the custody of Emilly Felyscha McDonald to Appellee when her custody was not properly at issue.
VI.The trial judge erred in awarding the custody of Emilly Felyscha McDonald to a non-parent (Appel-lee) when Appellee failed to carry his burden of proving a forfeiture of parental rights by Appellant.
VII.The trial judge erred in applying the best interest test in a custody contest between a parent (Appellant) and non-parent (Appellee) of Emilly Felyscha McDonald.
VIII.The trial judge erred in placing undue weight on evidence unfavorable to Appellant, while not considering those factors which supported an award of custody to Appellant.

Finding merit in Assignments V — VII, we pretermit discussion of the remaining assignments of error, reverse and remand for a new trial.

La.C.C.P. Art. 1551 outlines pre-trial conference procedure in Louisiana. The theory inherent in pre-trial procedure is to avoid surprise and to allow orderly disposition of the case. The pre-trial order, or as in this case the pre-trial agreement, controls the subsequent course of the action but can be modified at trial to prevent substantial injustice. La.C.C.P. Art. 1551; Austrum v. City of Baton Rouge, 282 So.2d 434 (La.1973).

While we recognize that in such matters, the trial court is vested with discretion [Naylor v. La. Department of Public Highways, 428 So.2d 674 (La.App. 1st Cir.1982); Lawless v. Employers Mutual Fire Insurance Co., 263 So.2d 79 (La.App. 1st Cir.1972) ], that discretion is necessarily controlled by the principle that it must be exercised to prevent substantial injustice to the parties who have relied on the pre-trial rulings or agreements and structured the preparation and presentation of their cases accordingly. Under the circumstances presented herein, the major modification of the pre-trial agreement at the end of the testimony so altered the character of the trial that it prejudiced Mrs. Gilcrease’s case to the point that rather than preventing, it caused substantial injustice. Thus, while done in good faith, this action constituted a clear abuse of the trial court’s discretion.

In view of the fact that appellate courts have the right to “render any judgment which is just, legal and proper upon the record on appeal” as provided for by La.C.C.P. Art. 2164, we are of the opinion that the right, proper and most equitable thing to do in this matter is to remand this case to the district court for the purpose of a new trial which will permit all of the parties involved herein the right to introduce any and all relevant evidence that they may have concerning the issue of the custody of both children. See Maurer v. Caballero, 278 So.2d 880 (La.App. 1st Cir.1973). Because Mr. Gilcrease did request custody of both children in his petition, both parties should have been afforded and are entitled to the opportunity to fully litigate the question of custody of both of these children in light of all the applicable legal principles enunciated in the cases involving custody disputes between parents as well as those between parents and non-parents. See Wood v. Beard, 290 So.2d 675 (La.1974); Hall v. Hall, 367 So.2d 162 (La.App. 2d Cir.1979). After our thorough review of the record, we conclude that the very serious issue of the custody of Felyscha, because of the trial court’s belated ruling, was necessarily decided on the basis of a limited amount of evidence. The trial court made it clear that Felyscha’s custody was closely interrelated with any award of custody made of Rhiannon and vice versa. While this was a proper factor to consider because of the legal holdings that the separation of children should be avoided whenever possible [Tiffee v. Tiffee, 254 La. 381, 223 So.2d 840 (1969)], this factor should have been considered at the point when the issues were determined prior to the hearing rather than only from the close of the evidence. To lead Mrs. Gilcrease to believe that Felys-cha’s custody was not at issue prior to trial and through the taking of evidence surely affected the entire approach to and the presentation of the case. One of the factors which may well have been relied on was the family solidarity doctrine, which under those circumstances, would have weighed in favor of Mrs. Gilcrease’s obtaining custody of Rhiannon.

The objective of our legal system is to render justice between the litigants upon the merits of the controversy rather than to defeat justice upon the basis of technicalities. See Succession of Robinson, 186 La. 389, 172 So. 429 (1936); Harrison v. South Central Bell Telephone Co., 390 So.2d 219 (La.App. 3d Cir.1980). We feel that this is particularly compelling in cases involving the future well being and placement of young children. Thus, it is our considered opinion that the ends of justice and the best interests of these minor children will be served by a remand.

The issues which we deem to be relevant at a future trial should include but not be limited to the principles relating to the effect of family solidarity versus separating siblings and those principles involved in custody disputes not only between parents but those between parents and non-parents.

Accordingly, for the foregoing reasons, the judgment of the trial court is reversed and the case is remanded to the district court for further proceedings consistent with this opinion. Costs of this appeal are cast against appellee.

JUDGMENT REVERSED AND RENDERED.

      . Mr. Cary was counsel for Mrs. Gilcrease at trial; however, he is not her counsel for purposes of this appeal.

      . La.C.C.P. Art. 1551 provides:
      In any civil action in a district court the court may in its discretion direct the attorneys for the parties to appear before it for a conference to consider:
      (1) The simplification of the issues;
      (2) The necessity or desirability of amendments to the pleadings;
      (3) What material facts and issues exist without substantial controversy, and what material facts and issues are actually and in good faith controverted;
      (4) The possibility of obtaining admissions of fact and of documents which will avoid unnecessary proof;
      (5) The limitation of the number of expert witnesses; or
      (6) Such other matters as may aid in the disposition of the action.
      The court shall render an order which recites the action taken at the conference, the amendments allowed to the pleadings, and the agreements made by the parties as to any of the matters considered, and which limits the issues for trial to those not disposed of by admissions or agreements of counsel. Such order controls the subsequent course of the action, unless modified at the trial to prevent manifest injustice.