text:
    STATE of Louisiana v. Juan Carlos NAVARRO.
    No. 83-KA-491.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 8, 1983.

      John M. Mamoulides, Dist. Atty., 24th Judicial Dist., Parish of Jefferson, James Maxwell, Andrea M. Price, William C. Credo, III, Asst. Dist. Attys., Gretna, for ap-pellee.
    Garrity & Webb, Dorothy M. Webb, Har-ahan, for appellant.
    Before CHEHARDY, KLIEBERT and DUFRESNE, JJ.
   CHEHARDY, Judge.

Juan Carlos Navarro was charged in a bill of information with the crimes of possession of 45 grams of marijuana and battery on a police officer, in violation of LSA-R.S. 40:966 and 14:34.2.

As a result of a plea bargain he pleaded guilty to the first offense and the second count was nol prossed. He was sentenced to six months in the parish prison, the maximum prison term provided under R.S. 40:966(D).

Defendant protests the sentence. He comes before this court with two assignments of error:

1. The trial judge erred in imposing a discriminatory and excessive sentence; and
2. The court committed reversible error in failing to follow statutory guidelines.

ASSIGNMENT OF ERROR No. 1

Defendant claims his ' constitutional rights were violated because the 14th Amendment of the United States Constitution prohibits discrimination based upon race, creed, or national origin. He contends the principal reason for the imposi-, tion of a jail term appears to be the fact that he is a native of Cuba.

Defendant’s arrest was the culmination of criminal activity involving the sale of one pound of marijuana to an undercover agent for $40.

The following day a search warrant was obtained, and at defendant’s home detectives found 55 grams of green vegetable matter, three scales, two vials with white marijuana and white powder residue, one amber vial with white powder residue, and two marijuana pipes. Forty-five grams of marijuana were found in defendant’s room. Defendant admitted one of the scales was stolen from Bonnabel High School.

During the arrest a scuffle between defendant’s brother and the arresting police officers began and defendant joined in. Both young men had to be subdued.

The above facts form part of the probation department’s pre-sentence report read into the record. Defendant admitted the above facts were true.

Defendant concludes that the jail sentence he received was due to the fact that he was Cuban. He points out that the trial judge mentioned the offense only once, but referred to his nationality four times.

Of the four references to Cuba which defendant contends constitute prejudice, one was his own answer to the question about where he was born.

The judge then said, “You come from Cuba. Well we don’t like to see things happen the way you did them in this country. I don’t know what Cuba is, and I’m not holding it against you because you’re from Cuba, but * *

These references to Cuba, of which defendant complains, appear to be entirely incidental. It is clear that before the judge even knew defendant was Cuban he intended to sentence him to jail, because prior to the sentencing the judge asked defendant if he had anything to say.

Defendant indicated he was sorry for what he had done. The judge then said, “You’re sorry now because it’s time to go to jail.” He went on to say that everyone had tried to treat defendant fairly, that he had been represented by one of the best attorneys in the court’s history and that defendant did not seem to appreciate anything. Then he asked defendant where he was born.

In our opinion the jail sentence was based upon defendant’s criminal activities. There is no indication that a native American with a similar involvement would have received a lesser or probationary sentence. Thus we find the allegation of prejudice and discrimination based on national origin totally unsupported and unwarranted.

Defendant then argues the sentence imposed was excessive, due to his youth, his stable home environment, his lack of prior criminal activity, the minor nature of the crime and the fact that he is linguistically disadvantaged.

The trial judge was aware that defendant was 20 years old, and knew of his home environment and his lack of prior criminal activity. However he was also aware that defendant was more deeply involved in the drug world than the charge of simple possession indicated.

Defendant has been in this country for three years and attended high school here. He exhibited no linguistic disability or difficulty in answering at length, in English, all questions asked of him by his attorney and the trial judge. His comprehension and responses indicated he clearly understood the English language and was able to speak it fluently.

We have given careful consideration to these allegations and conclude there was no discrimination on the part of the trial court and that defendant’s criminal activities alone warranted imposition of the sentence.

ASSIGNMENT OF ERROR No. 2

Appellant claims the trial court failed to follow the sentencing guidelines provided by LSA-C.Cr.P. art. 894.1, which requires the court to state for the record the factual basis and considerations taken into account in imposing sentence.

The trial court initiated the sentencing proceedings with a review of previous proceedings in the case and then read into the record a synopsis of the pre-sentence investigation.

The report indicated defendant was a very hostile individual, had a poor school record, was tardy or absent on numerous occasions, and had a D average. He was socially promoted and socially graduated.

It was also stated defendant did not feel he had done anything wrong by selling or possessing marijuana. He was very arrogant and could not accept authority, and had no respect for the crime he had pleaded guilty to or respect for the law he had broken.

The judge accepted these findings and included them in his reasons for sentencing.

C.Cr.P. art. 894.1(A) sets forth three circumstances which justify imposition of a prison sentence:

“(1) There is an undue risk that during the period of a suspended sentence or probation the defendant will commit another crime;
(2) The defendant is in need of correctional treatment or a custodial environment that can be provided most effectively by his commitment to an an institution; or
(3) A lesser sentence will deprecate the seriousness of the defendant’s crime.”

In announcing the six-month jail sentence the court gave defendant credit for time served and noted that with time off for good behavior defendant could be out in 90 days.

The trial judge complied with the requirements of law, and the sentence imposed is within his sound discretion.

For the reasons assigned the sentence is affirmed.

AFFIRMED.


source: Caselaw Access Project

author: CHEHARDY, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Donald BAROUSSE.
    No. 83-KA-502.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 8, 1983.
    John M. Mamoulides, Dist. Atty., 24th Judicial Dist., Parish of Jefferson, Douglas Friederichsen, William C. Credo, III, Asst. Dist. Attys., Gretna, for appellee; Louise Korn, Gretna, of counsel.
    Joseph L. Montgomery, Staff Appeals Counsel, 24th Judicial Dist., Indigent Defender Board, Gretna, for appellant.
    Before CHEHARDY, KLIEBERT and DUFRESNE, JJ.
   CHEHARDY, Judge.

On February 28, 1983, Donald K. Bar-ousse entered pleas of guilty to two counts of simple crime against nature, LSA-R.S. 14:89. The victims were his two daughters, aged three and four. On April 27, 1983, following a presentence investigation, he was sentenced to three years at hard labor, with credit for time served. The defendant has appealed, and raises two assignments of error before this Court.

His first assignment of error is that the trial judge failed to suppress an inculpato-ry statement made by the defendant, which the defendant contends was not voluntary. His second assignment of error is that the trial judge failed to properly delineate his reasons for imposing sentence, and that the sentence was nonetheless excessive, considering all the pertinent circumstances.

ASSIGNMENT OF ERROR NO. 1

Prior to entering his guilty plea, Barousse had filed a motion to suppress his inculpatory statement. The motion, heard on February 2, 1983, was denied. The minutes of the court contain no notation that the defendant reserved his right to appeal that ruling. The transcript of those proceedings, however, shows defense counsel noted an oral exception to the adverse ruling at the time. That would have been adequate notice to reserve an assignment of error, if the case had gone to trial on the merits.

In State v. Crosby, 338 So.2d 584 (La.1976), the Supreme Court held that a defendant waives his right to review of a nonjurisdictional pre-plea trial ruling unless, at the time of his plea, he expressly stipulates that he does not waive his right to review of it, the normal consequence of a guilty plea.

The transcript of the plea colloquy reveals no reservation of the defendant’s rights by a Crosby stipulation. In addition, the Boykin form, entitled “Defendant’s Ac-knowledgement of Constitutional Rights and Waiver of Rights on Entry of a Plea of Guilty,” states, in paragraph 6,

“If you plead guilty, and this court accepts your plea, you do not have the right to assert any allegations of defects, such as: * * * (c) an illegal confession; * * *. Do you understand that by pleading guilty you are waiving or giving up these rights?”

The Boykin form was signed by both the defendant and his attorney. In the plea colloquy between the defendant and the trial court, the judge reiterated the waiver verbatim and the defendant replied affirmatively, indicating he understood he was waiving these rights. Further, he was specifically asked if anyone had used any force, intimidation, coercion, promise or reward to make or force him to plead guilty, which he denied.

The defendant should have reserved his right to review the denial of his motion to suppress at the time he entered his guilty plea. Instead, he expressly waived that right. Accordingly, we find no merit to Assignment of Error No. 1.

ASSIGNMENT OF ERROR NO. 2

The defendant pleaded guilty to two counts of simple crime against nature. The penalty for that crime is a fine of not more than $2,000 or imprisonment, with or without hard labor, for not more than five years, or both. LSA-R.S. 14:89(B). The defendant was sentenced to three years with credit for time served.

The trial judge stated he had read and considered the report of the presentence investigation and also the sentencing guidelines set forth in LSA-C.Cr.P. art. 894.1. He noted the defendant was on probation for a prior conviction for possession of marijuana, but that the probation did not stop him from doing the acts with which he is charged in this prosecution. The court also mentioned that the defendant’s abuse of his children was not a single event, but had been going on for some time. The judge felt a most serious harm had been perpetrated on these children; he believed that, as it had happened a number of times before, this type of behavior was likely to recur.

Although Barousse had been married for 11 years and had a good employment record, and imprisonment would impose a hardship on his family, the trial court determined that the defendant was in need of correctional treatment in a custodial environment.

The judge further stated he had reviewed the probation department’s recommendation for conditional probation, but that he did not agree with that suggestion.

We conclude the trial court complied well with the sentencing guidelines of C.Cr.P. art. 894.1 in stating for the record his reasons for sentencing, having taken into account both aggravating and mitigating circumstances.

Respecting the allegations of excessive sentence, we refer to State v. Howard, 414 So.2d 1210, 1217 (La.1982):

“ * * * The trial judge is given a wide discretion in the imposition of sentences within statutory limits, and the sentence imposed by him should not be set aside as excessive in the absence of a manifest abuse of his discretion. State v. Sepulvedo, 367 So.2d 762 (La.1979).”

Considering the maximum sentence for simple crime against nature is five years and/or $2,000, the three-year sentence imposed falls in the mid-range of the statutory limits. In light of the tender ages of the victims in this case, the trial court used great restraint in imposing the sentence. Therefore, we find no merit to Assignment of Error No. 2.

PATENT ERROR

LSA-C.Cr.P. art. 920 requires the appellate court to consider patent error, that is, any error discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence. The record before us reflects that Donald Barousse pleaded guilty to two counts of simple crime against nature, but was given one sentence of three years imprisonment. This appears to be patent error.

LSA-C.Cr.P. art. 921, however, states that a judgment or ruling shall not be reversed by an appellate court because of any error, defect, irregularity, or variance which does not affect substantial rights of the accused. Because the single sentence imposed, three years, is considerably less than the statutory maximum that could have been imposed for one count alone, we find the judge’s omission to mention the two counts did not affect the substantive rights of the defendant. Accordingly, we see no reason to remand the case for clarification or resentencing.

For the foregoing reasons, the conviction and sentencing of the defendant, Donald K. Barousse, are affirmed.

AFFIRMED.


author: KLIEBERT, Judge.

text:
    STATE of Louisiana v. Rosetta JONES.
    No. 83 KA 449.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 8, 1983.
    John M. Mamoulides, Dist. Atty., Gerald Alonzo, Andrea Price, William C. Credo, III, Asst. Dist. Attys., Gretna, for plaintiff-appellee.
    Joseph L. Montgomery, Staff Appeals Counsel, 24th Judicial District Indigent Defendant Board, Gretna, for defendant-appellant.
    Before KLIEBERT, CURRAULT and DUFRESNE, JJ.
   KLIEBERT, Judge.

Defendant was charged by bill of information with possession with intent to distribute a controlled dangerous substance, to-wit: pentazocine, in violation of La.R.S. 40:967. After trial by jury, she was found guilty as charged. On September 29, 1982, the trial court sentenced the defendant to ten years at hard labor. Defendant has now appealed her conviction and sentence to this court, urging in her brief one assignment of error; i.e., the trial judge failed to delineate his reasons for imposing sentence, which sentence was nonetheless excessive, in violation of C.Cr.P. art. 894.1 and Article I, Section 20 of the Louisiana Constitution.

As we stated in State of Louisiana v. Dirden, 430 So.2d 798 (5th Cir.1983) at page 800:

“.... Code of Civil Procedure Article 894.1 _is_a Sentence Guideline for general application in imposing a sentence under the penalty provisions of the violated statutes where the statute gives to the Court a discretion in type or extent of the punishment to be imposed.a finding that either Part 894.1 A(l), (2) or (3) applies is not only sufficient justification for imprisonment; but, in addition, under the wording of the statute, a legislative mandate to imprison a convicted defendant. Further, although not controlling, under Article 894.1 B, the trial judge is required to give weight to the eleven criteria set out in Part B of the article in determining whether the sentence should be suspended and the convicted defendant placed on probation....”

While the judge need not articulate every aggravating and mitigating circumstance, the record must adequately reflect that he considered these guidelines in particularizing the sentence to the defendant. State v. Ray, 423 So.2d 1116 (La.1982); State v. Duncan, 420 So.2d 1105 (La.1982).

The record reflects that a pre-sen-tence investigative report was conducted by the Department of Corrections and that defense counsel filed a “memorandum in preparation of sentencing” and orally argued mitigating points in favor of the defendant prior to sentencing. Defendant’s counsel, in brief and in oral argument before the sentencing judge, contended the defendant had been law abiding since her previous conviction; was a responsible person who worked and got along with her co-workers and neighbors; was in difficulty now only because of her association with a drug peddler, and this association resulted from the death of her mother, father and brother in a short period. Therefore, he argued the defendant was a good subject for suspension of sentence or probation and incarceration would be an undue hardship on her two young children.

In sentencing the defendant, the trial judge noted the above, and especially that the defendant was the mother of small children and has lost members of her family. The trial judge also noted that the defendant had a previous criminal history involving a violent crime. He considered the testimony which showed that the defendant had actually and knowingly sold illegal drugs involved in this case and was apparently selling these drugs indiscriminately. Since the trial judge saw no excuse for the defendant’s conduct, he concluded that any lesser sentence would deprecate the seriousness of the crime for which the defendant was convicted.

The trial judge is given a wide discretion in the imposition of sentences within the statutory limits, and sentences imposed by him shall not be set aside as excessive in the absence of manifest abuse of discretion. State v. Howard, 414 So.2d 1210 (La.1982); State v. Bing, 410 So.2d 227 (La.1982).

After a careful review of the record, we believe the trial judge gave a proper consideration to the various mitigating factors presented to him on behalf of the defendant. Under the circumstances involved in this case, we cannot say that the sentence imposed was unconstitutionally excessive. Accordingly, the judgment of the trial court is affirmed.

AFFIRMED.


text:
    Michael GLENN v. LEAMAN & REYNOLDS, INC.
    No. 83 CA 487.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 8, 1983.

      Robert M. Steeg, Steeg & O’Connor, New Orleans, for plaintiff-appellee.
    James F. Holmes, Christovich & Kear-ney, New Orleans, for defendant-appellant.
    Before KLIEBERT, BOWES and CUR-RAULT, JJ.
   KLIEBERT, Judge.

Leaman & Reynolds, Inc., an insurance agency, the defendant, appeals from a judgment in favor of Michael Glenn, plaintiff, in the amount of $2,668.71. After plaintiff’s motorcycle was stolen, he sued the insurance agency for its value. The suit was grounded in the insurance agency’s alleged failure to notify plaintiff of the bankruptcy of American Reserve Insurance Company (hereafter Reserve), the insurer of the motorcycle, under a policy covering loss by theft, obtained by defendant for the plaintiff. The primary issue on appeal is whether the insurance agency had a fiduciary relationship with plaintiff and, if so, did it give the plaintiff sufficient notice of the insolvency of the insurer. In the event of an affirmation of the trial judge’s ruling on notice, the defendant alternatively argues for reduction of the judgment. Defendant asks that the judgment be reduced by the amount of the deductible in the policy and/or by reduction in the value of the motorcycle. We amend the judgment and, as amended, affirm.

Plaintiff went to defendant’s office to obtain insurance coverage on his motorcycle. When the insurance agency was unable to obtain coverage through any of the companies with which it did business, it obtained from Gem Underwriters, Inc. (hereafter Gem), a general agency, a policy issued by Reserve. The policy afforded coverage of loss from theft for the period February 12, 1979 to February 12, 1980. The plaintiff paid defendant the premium due on the policy. In turn, it withheld its commission and forwarded the balance to Gem.

The application for insurance forms, signed by the plaintiff, were supplied by Gem. It reflected plaintiff’s name, address and his phone numbers at home and at work. Defendant maintained a copy of this application in its file. On or about April 15, 1979, plaintiff moved from 128 Midway Drive, River Ridge, La. (the address reflected on the application form and on the insurance policy) to 3201 Rue Parc Fon-taine, Algiers, La. He neither informed the U.S. Postal authorities nor the defendant of his change of address.

On May 29, 1979, Reserve was declared insolvent by an Illinois Court. Since Reserve was an admitted Louisiana company, under our law the Louisiana Guarantee Association was obligated to guarantee substantially all claims and unearned premiums and to continue the policy coverage for an additional thirty days from the time the insurance carrier was judicially declared insolvent. LSA-R.S. 22:1382. Thus, in this instance, the coverage guaranteed by Reserve expired on June 28, 1979.

Sometime in June, an employee of Gem informed the defendant of Reserve’s insolvency. Under date of July 5, 1979, defendant mailed a letter, directed to the plaintiff at the address indicated in the policy, i.e., 128 Midway Drive, River Ridge, La. The letter referred to a previous letter (allegedly sent by Gem) informing plaintiff of the insolvency of Reserve. The intent of defendant’s letter was to inform plaintiff as to the procedure he was to follow in obtaining a refund of his unearned premium and of a means to obtain replacement coverage. The letter was tickled in a “diary system” and when no response was received in thirty days, plaintiff’s insurance file was removed from the active files, marked “dead”, and filed with the inactive files. The plaintiff testified he did not receive the letter and had no notice of Reserve’s insolvency. The record is not clear as to what happened to the unearned premium plaintiff would have been entitled to receive.

On November 19, 1979, plaintiff’s motorcycle was stolen. He contacted the defendant to file a claim for his loss and was informed at that time he no longer had coverage because his insurer was insolvent. This suit followed.

The trial judge concluded the defendant was an independent broker within the meaning of La.C.C. arts. 3016 and 3017. We concur in that conclusion because the defendant was not under any exclusive contract with any insurer, had no agency relationship with Reserve, and acted as the agent of the plaintiff to canvass the field for insurance coverage for him and to receive his premium for coverage so obtained. Thus, defendant was in a similar position to the agents involved in Britten v. Payne, 381 So.2d 855 (1st Cir.1980); Board of Trustees, etc. v. St. Louis Fire & Mar. Ins. Co., 306 So.2d 777 (4th Cir.1974); i.e., they occupied the position of a fiduciary to the plaintiff.

As a fiduciary, the defendant had the burden of showing it discharged its fiduciary duty to the plaintiff. Board of Trustees, etc. v. St Louis Fire & Mar. Ins. Co., supra. Here the defendant relied on the fact it mailed a letter to the plaintiff at his last reported address. Hence, the defendant argues if it was not received by plaintiff, it was plaintiff’s failure to inform the defendant, Gem or the U.S. Postal authorities of his change in address which caused the failure of delivery. Since the letter was not returned to them undelivered, defendant argues it was justified in assuming the letter was delivered.

However, the rulings of the Louisiana courts are clear. When the general principles of the fiduciary relationship are applied to an independent broker who has obtained the insurance coverage and received the premium therefor, the independent broker has an affirmative duty to inform the client of a premature termination of the coverage. Foster v. Nunmaker Discount Company, 201 So.2d 215 (4th Cir.1967); Britten v. Payne, supra; Board of Trustees, etc. v. St. Louis Fire & Mar. Ins. Co., supra. This duty stems from the client’s reposing his trust in the independent broker as his agent, thus requiring the broker to preserve the welfare of its client. The defendant’s duty here was not only to inform the plaintiff of the insolvency of Reserve, but also to protect and safeguard the unearned premium he was entitled to receive.

The defendant did not fulfill its obligation to the plaintiff. It mailed only one unregistered letter to the last known address of its client. According to its own witness, the letter was sent as a “courtesy” and not out of any course of action designed to notify the client of the insolvency of Reserve and the procedure to be followed in obtaining a refund of his unearned premium. When no response was received from the letter and the letter was not returned by the postal authorities, the defendant could not merely assume it had been delivered and its duty to its client met. Rather, it was obligated to make some further inquiry as to why the affirmative response called for in the letter had not been received. Its file contained information which would have placed it in contact with the plaintiff. The failure to make such further inquiries was a breach of the duty owed to its client.

The duty of the independent broker to its client is independent of the duty of the insurance carrier to its policy holder. The insurance carrier’s duties arise out of the insurance contract and the provisions of the Louisiana Insurance Code, especially LSA-R.S. art. 22:636; whereas, the duty of the independent broker arises out of its fiduciary relationship to its client. This distinction was vividly made in Board of Trustees, etc. v. St. Louis Fire & Mar. Ins. Co., supra. There the insurance carrier was absolved of liability because it followed the prescribed procedure to give its policyholder timely notice of cancellation; however, the independent broker was held liable to its client for breach of its fiduciary duty because the client did not receive actual notice of the cancellation.

In Hernandez v. State Farm Mut. Auto. Ins. Co., 410 So.2d 348 (4th Cir.1982), the issue before the court was the effectiveness of the action taken by the insurance carrier towards the cancellation of the insurance policy, not the duty owed by a fiduciary to its client. Hence, the case is not applicable here.

The next question involves the extent of the defendant’s liability for the breach. The trial judge awarded $2,668.71 to the plaintiff. This was apparently computed by adding $173.71 for new tires installed on the motorcycle shortly before the theft to $2,495.00 (the value of the motorcycle as testified to by plaintiff’s expert witness). The defendant argues, adding the $173.71 to the value of the motorcycle results in a duplication of the award. Further, he argues the $250.00 deductible provided for in the policy should have been deducted from the established value. We agree with both arguments.

Adding the cost of the tires to the value of the motorcycle (the $2,495.00 was with tires and in excess of the motorcycle’s blue book value) does amount to a duplication because tires are already included in the base value of $2,495.00. Additionally, plaintiff is entitled to recover from his fiduciary only what he lost because of the breach. Foster v. Nunmaker, supra. Had the policy been in effect, plaintiff would have recovered the actual cash value less the $250.00 deductible provided for in the policy. Accordingly, the judgment of the trial judge is amended to be a monetary award of $2,245.00 in lieu of $2,668.71 and, as amended, is affirmed. Cost of the appeal to be borne by the appellant.

AMENDED AND, AS AMENDED, AFFIRMED.


text:
    Timothy C. MAISE, Sr. v. GOVERNMENT EMPLOYEES INSURANCE COMPANY.
    No. 83 CA 497.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 8, 1983.

      John F. Tooley, Jr., Tooley & Waldmann, Gretna, for plaintiff-appellant.
    . W. Paul Andersson, Hammett, Leake & Hammett, New Orleans, for defendant-ap-pellee.
    Before CHEHARDY, KLIEBERT and DUFRESNE, JJ.
   KLIEBERT, Judge.

The plaintiff, Timothy Maise, Sr., appeals from a judgment dismissing, on a motion for summary judgment, his suit for recovery of damages under a policy of insurance issued by Government Employees Insurance Company (GEICO). The issue on appeal is whether there is a disputed issue, of fact, i.e., did Maise receive proper written notice the policy of insurance sued on was cancelled? The trial judge concluded there was proper notice and, hence, granted the summary motion to dismiss. We reverse and remand for trial on the merits.

This case was previously dismissed by the trial judge on a motion for summary judgment. On appeal to this court, Maise v. Government Employees Insurance Co., 419 So.2d 979 (5th Cir.1982) we set aside the dismissal and remanded the case to the trial judge. The basis for the reversal was the failure of GEICO to show there was no genuine issue as to material fact and that the mover, GEICO, was entitled to judgment as a matter of law.

After the remand, GEICO filed another motion for summary judgment and supported same by the affidavits of Donald Morrison, an insurance agent. In the affidavit, Mr. Morrison attests that acting under a power of attorney given to him by Maise in connection with a premium financing arrangement, he requested GEICO to cancel the Maise policy because the installment payments on the loan made to finance the premium were four months in arrears. Based on this request, GEICO cancelled the policy and refunded the unearned premium to Mr. Morrison on or about June 19, 1978.

On the previous appeal to this court, Judge Boutall, as its organ, at page 981, said:

“We note that C.C.P. Art. 966 also requires the mover show the relevant facts upon which he is entitled to judgment as a matter of law. If this situation were to fall under the requirements of R.S. 22:636, then GEICO must show that a written notice was sent to the insured or his representative. Once again, GEICO attempted to show that proper written notice was sent by offering unsupported and unverified documents whereas Maise properly brings this fact into issue by affidavit and depositions denying such a notice. If this situation were to fall under the requirements of R.S. 22:637, then GEICO must show that proper written notice of cancellation was sent to it and that the policy was surrendered for cancellation. There has been no showing on behalf of GEICO that Maise or his agent surrendered the policy and there is a dispute that the written notice was properly executed or ever sent.”

On the second motion for summary judgment GEICO contends the cancellation was effected by a representative of the insured (Morrison) and its notice of cancellation to Morrison, which he admits was received, was sufficient to cancel the policy. Consequently, argues GEICO, the disputed issue of fact, i.e., did Maise personally receive notice of cancellation is no longer material for the notice requirements are those of R.S. 22:637 rather than R.S. 22:636.1 because the cancellation was effected by the insured through its agent (Morrison) and not by the insurer. The trial judge agreed; but, we disagree.

R.S. 22:636.1 contains specific provisions dealing with the exact situation present in the instant case. The sections allows the cancellation of automobile insurance policies for “non-payment of premium” and defines nonpayment as failure to pay “directly to the insured or indirectly under any premium financing plan”. It further provides that cancellation will not be effective without ten (10) days notice to the insured. Cockern v. Government Employees Ins. Co., 415 So.2d 330 (2nd Cir.1982).

When Maise filed an affidavit alleging he did not receive notice of cancellation, he raised a genuine issue of material fact, i.e., did he receive the requisite written notice of cancellation? The issue so raised is sufficient to preclude the granting of a motion for summary judgment because the filing of defendant’s affidavit alleging the required notice was mailed can be defeated by plaintiffs affidavit the notice was not received by the insured. Rosenburg v. Carr, 422 So.2d 526 (5th Cir.1982); Cuccia v. Allstate Insurance Co., 262 La. 545, 263 So.2d 884 (1972). Hence, there is an unanswered genuine issue of material fact present which precludes a dismissal on a motion for summary judgment.

We also note that this case arose prior to the enactment of R.S. 9:3550 in 1980, which requires insurance premium financing companies to give notice to the insured that it intends to exercise its power of attorney to cancel the insurance policy. Since this provision was enacted after the facts of this case arose, it has no application here.

Accordingly, the judgment of the trial court is reversed and set aside and the case remanded to the trial court. Costs of the appeal to be borne by the appellee.

REVERSED, SET ASIDE AND REMANDED.


author: BOWES, Judge.

text:
    DREW DEVELOPMENT COMPANY, INC., Dreux Ltd. and Langford Realty Company v. HIBERNIA NATIONAL BANK OF NEW ORLEANS.
    No. 83-CA-433.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 8, 1983.
    Michael E. Botnick, New Orleans, for plaintiffs/appellants.
    T. Allen Usry, William W. Hall, Metairie, for defendant/appellee.
    Before BOWES, CURRAULT and GRIS-BAUM, JJ.
   BOWES, Judge.

In this suit, plaintiffs appeal a judgment of Division “C” of the district court refusing to annul a judgment rendered against them in a prior case in the 24th Judicial District Court. We affirm the trial court’s action.

Hibernia National Bank filed suit against John Andrew Langford, individually, in the previous case to recover $848,904.39 in overdrafts on Mr. Langford’s NOW account with Hibernia. Hibernia amended its petition to include the plaintiffs herein, claiming that Drew Development Company, Inc., Dreux Ltd. and Langford Realty Company were alter egos of John Langford and were therefore liable, in solido, with Lang-ford, for the payment of any judgment rendered against Mr. Langford individually. The bank sought preliminary and permanent injunctions against the alleged “alter ego” corporations, prohibiting them and their agents from disposing of any assets so as to preserve any funds which may have been funnelled into the corporations from the Hibernia account. In response to Hibernia’s actions, the corporations filed, on February 8, 1982, exceptions of “No Cause and/or Right of Action.” On March 10, 1982, the trial for the issuance of the preliminary injunction was conducted and, after a hearing on the merits, the injunction was granted. Almost two months later, the trial court confirmed a default taken against these defendants.

Prior to the taking of this default-judgment, Dreux, Ltd. had filed bankruptcy proceedings on March 2, 1982, which would have effectively precluded the taking of said judgment. However, the record contains a judgment of the Bankruptcy Court which effectively lifted the stay order on April 7, 1982, and allowed Hibernia to proceed to a money judgment against Dreux, Ltd.

Appellants sought, in this suit to annuli, to attack the previous default judgment rendered by Judge Burns, alleging that the above-mentioned exceptions were outstanding at the time judgment was rendered and that there was a stay order issued by the U.S. Bankruptcy Court, staying the proceedings in the 24th Judicial District Court. Judge Grefer, after a trial on appellants’ petition, rejected their demands and found in favor of appellee, Hibernia.

Article 2002 of the Louisiana Code of Civil Procedure provides that judgments may be annulled for vices of form. The pertinent part of that article reads as follows: “A final judgment shall be annulled if it is rendered: ... (2) Against a defendant who has not been served with process as required by law and who has not entered a general appearance, or against whom a valid judgment by default has not been taken; ...

Appellants allege that default judgment rendered by Judge Burns on May 6, 1982, is invalid because there existed outstanding exceptions (those listed supra) at the time of the judgment.

L.S.A.C.C.P. article 2593 states:

A summary proceeding may be commenced by the filing of a contradictory motion or by a rule to show cause, except as otherwise provided by law.
Exceptions to a contradictory motion, rule to show cause, opposition, or petition in a summary proceeding shall be filed prior to the time assigned for, and shall be disposed of on, the trial. An answer is not required, except as otherwise provided by law.
No responsive pleadings to an exception are permitted.

Ergo, under the laws of Louisiana, a separate fixing for a hearing of the exceptions of no cause and/or right of action was not allowed prior to a hearing of a summary proceeding such as the hearing on a preliminary injunction.

Such being the law, petitioners’ exceptions of no cause and/or right of action were necessarily referred to the trial on the merits of the preliminary injunction which was held on March 10, 1982. Attorney for appellants was present in court at the time of the trial of the preliminary injunction and neither argued nor sought a ruling on the exceptions.

Therefore, as a matter of law, the exceptions were waived. Louisiana jurisprudence consistently reports that if a party, who has filed exceptions, does not insist on a trial of and ruling on his exceptions when he appears for a trial on the merits, his exceptions are considered to have been abandoned. Williams v. Vidrine, 330 So.2d 396 (La.App. 3rd Cir.1976); Oil Pur chasers, Inc. v. Kuehling, 321 So.2d 17 (La.App. 3rd Cir.1975); Ford Motor Credit Company v. Soileau, 323 So.2d 221 (La.App. 3rd Cir.1975).

In Normand Company v. Abraham, 176 So.2d 178 (La.App. 4th Cir.1965), in a case involving the trial of a summary matter (a motion for summary judgment) to which exceptions had been filed, the judges of our neighboring circuit applied the aforementioned jurisprudence when they held as follows:

[6,7] However, defendants appeared through counsel when the motion was called for hearing on December 11, without objection. No mention was made of the pending exception, either in the minutes or the judgment. It was not overruled, as defendants stated in their brief. If it was not acted upon because of oversight, it was the responsibility of defendants’ counsel to call it to the court’s attention. We do not think defendants’ counsel had any such thought or intent at the time, but to allow him now to take advantage of a situation created by his own silence, intentionally or otherwise, would not only be unjust but a danger- ' ous precedent. It appears from the pertinent portion of the judgment above quoted that defendants abandoned and waived any rights they might have had under the exception. The judgment clearly indicates that the defendants appeared through their attorney and opposed the motion on its merits. If defendants’ counsel had any objection to hearing the motion on its merits on December 11, none is recorded. Had he called upon the court first to pass on the exception before submitting to a hearing on the merits of the motion, his rights thereunder would have been protected. His failure to do so was a waiver of his objection to the form of service. Had the judgment been one rejecting the motion for summary judgment, defendants’ counsel would not have been heard to complain that his clients had not been served properly. We will not hear his complaint now, after he took his chances on the merits and lost.

The case before this court closely parallels Normand (supra). In both cases, a summary proceeding was set for trial, exceptions were filed prior to the proceeding, and the party who filed the exceptions failed to call said exception to the court’s attention before or during the summary proceeding. Thus, the Fourth Circuit held that a trial of a summary matter which effectively disposes of the exceptions, is a trial on the merits for the purposes of article 2593. We agree and hold that the same applies, under the circumstances of this case, to the trial of the motion for the preliminary injunction as the exceptions were necessarily disposed of by that judgment.

We also agree with the opinion of the learned trial judge, and with Normand, that it was the responsibility of counsel for defendant, who filed the exceptions, to call said exceptions to the court’s attention at the time of the trial of the injunction and request a ruling thereon. Since he did not see fit to do so, we hold that he should not now be allowed to take advantage of a situation created by his own silence, intentionally or otherwise.

In addition, the trial for the issuance of the preliminary injunction, a summary proceeding, warrants (in light of C.C.P. art. 2593) the conclusion that it was necessary for the trial judge to consider and dispose of the exceptions before rendering his judgment. The prayer for the injunction was based upon the premise that the appellant corporations were (and are) the alter egos of Mr. Langford. The exceptions filed on behalf of appellants questioned this premise. In order to render a decision against the corporations, granting the injunction, the trial judge, by necessity, had to find the exceptions without merit. Since the injunction did issue, the basis óf appellants’ exceptions (that there was no proof that the corporations were the alter egos of Mr. Langford) had to have been rejected by the court or the injunction could not have been issued.

It is academic whether this court considers the exceptions abandoned or overruled. If, in fact, they were abandoned, then certainly no exceptions were outstanding when the default judgment was rendered. On the other hand, if they were overruled by the trial judge at the trial of the injunction, then appellants had ten days from that time (March 10, 1982) to file an answer (L.S.A.C.C.P. article 1001). Appellants filed no answer and the preliminary default entered on April 28, 1982, confirmed and made final on May 6, 1982, was properly taken.

Accordingly, the judgment of the trial court is affirmed. Appellants are to bear all costs of this appeal.

AFFIRMED.


text:
    Barbara Susan Anglim Clarke, Wife of Robert Nolan CLARKE v. Robert Nolan CLARKE.
    No. 83-CA-434.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 8, 1983.
    Gary J. Williams, Slidell, for plaintiff/ap-pellee.
    Robert N. Clarke, Westwego, for defendant/appellant.
    Before BOWES, CURRAULT and GRIS-BAUM, JJ.
   BOWES, Judge.

Defendant, Robert Nolan Clarke, appeals a judgment of the district court denying his motion to reduce alimony pendente lite. We affirm.

Appellant contends that the trial court was manifestly erroneous in denying his motion because the testimony at trial clearly showed a change in circumstances in the income of appellee between the time the original support payment was agreed upon and the time appellant’s motion to reduce was filed.

Plaintiff, Barbara Anglim Clarke, filed for separation from bed and board on October 13, 1982. Plaintiff and defendant entered into a consent judgment on November 4, 1982, which, inter alia, fixed alimony pendente lite at $300.00 per month. Defendant’s rule to reduce was filed December 3, 1982, and heard and denied on January 13, 1983.

Testimony at the trial established that at the time of the consent judgment, plaintiff, Barbara Clarke, was not employed. There was also conflicting testimony as to Mrs. Clarke’s intention to return to her former employment at Southern Baptist Hospital, but we agree with the trial judge who found that the consent judgment contemplated that the plaintiff would return to work. Uncontraverted testimony established that Mrs. Clarke had worked the entire time she and Mr. Clarke were married (on a part-time basis earning approximately $400.00 per month) up until the time the marriage got into serious difficulty. At the time the rule was filed, plaintiff had returned to her previous employment at Southern Baptist Hospital, but in a full-time capacity, and was netting approximately $590.00 every two weeks (this translates to $1,278.00 monthly). Mrs. Clarke submitted an affidavit of expenses showing total monthly • expenses of $2,424.06. However, included in this figure was $757.63 for housing, which was paid by Mr. Clarke. Therefore, we deduct that latter figure to arrive at monthly expenses for Mrs. Clarke of $1,666.43.

We must likewise adjust the income reported by Mrs. Clarke. She reported a monthly income of $1,878.82 — her salary, $300.00 per month alimony pendente lite and $378.82 paid by Mr. Clarke on the house mortgage (one-half of the $757.63 listed as housing expense and considered alimony pendente lite under the consent judgment). Since we reduced the expenses reported by Mrs. Clarke by the amount she claimed for housing, we must similarly reduce the income she reported by any amount paid by Mr. Clarke directly toward housing. Therefore, we must deduct $378.82 from Mrs. Clarke’s reported income, leaving a balance of $1,500.00 per month income, $166.43 below her reported expenses. We take note that Mrs. Clarke testified to an increase in expenses of almost $600.00 per month, attributed solely to her return to work. This testimony was uncontraverted, believed by the trial judge, and accepted by us.

Alimony pendente lite, as provided for in L.S.A.C.C. art. 148, has been the subject of much litigation. ' In a recently-published opinion, Lynch v. Lynch, 422 So.2d 703 (La.App. 3rd Cir.1982), our brother judges of the 3rd Circuit, with whom we agree, expounded as follows:

In Desormeaux v. Brignac, 408 So.2d 32 (La.App. 3rd Cir.1981), we established the following guidelines: ...
[3] The fixing of the amount of alimony pendente lite which the husband should be required to pay his wife is largely within the sound discretion of the trial judge and his conclusions as to the amount of the award will not be disturbed on appeal unless there has been a clear abuse of discretion. [Citations omitted]
[8] In determining the amount necessary for the “maintenance” of the claimant spouse, the measure is that amount necessary to maintain the spouse in the same style and under the same conditions which she enjoyed prior to the separation. [citations omitted]

We also agree with our brothers in ,the 4th Circuit, who, in Peraino v. Peraino, 414 So.2d 858 (La.App. 4th Cir.1982), stated:

“The very purpose of alimony pendente lite ... is to maintain the wife at a standard of living comparable to that which she enjoyed prior to her separation from her husband.”

In the case before the court, the wife’s income per month (salary and alimony pen-dente lite) equals $1,500.00, whereas her expenses total $1,666.43. In connection with his ruling denying the motion to reduce, the learned trial judge made the following statement: “I’d say that the testimony shows that even though she did go to work, ... she went to work because of necessity and because of her inability to survive on what was being paid by Mr. Clarke.” We can find nothing manifestly erroneous with his conclusion.

Accordingly, the judgment of the trial court is affirmed. Appellant is to bear all costs of this appeal.

AFFIRMED.


text:
    Albert PARR, Individually and as Administrator of the Estate of Albert Parr, Jr. v. Claude HEAD, Robert Coppage and the Guaranty National Insurance Company.
    No. 83-CA-458.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 8, 1983.
    Fernand L. Laudumiey, III, Rudman, Howard, Laudumiey & Mann, New Orleans, for plaintiffs/appellees.
    Arthur W. Landry, Beinvenu, Foster, Ryan & O’Bannon, New Orleans, for defendants/ appellants.
    Before BOUTALL, BOWES and GRIS-BAUM, JJ.
   BOWES, Judge.

From a judgment of the district court in favor of plaintiff, and against all defendants, Robert Coppage and his insurer, Guaranty National Insurance Company, appeal. Head has not appealed, nor answered this appeal, so his liability and that portion of the judgment against him is not at issue. We reverse that portion of the judgment insofar as it finds Coppage and Guaranty liable unto plaintiffs for damages.

Claude Head is the lessee of a house which was owned by Robert Coppage, now deceased. Robert Coppage had a policy of owners’, landlords’ and tenants’ liability insurance for the premises, issued by Guaranty National. On May 7, 1980, Albert Parr, Jr., accompanied by a friend, Ronnie Raines, entered the yard of the premises occupied by Mr. Head. The two boys played miniature golf with Mr. Head’s daughter for about 15 minutes. At that time, a dog owned by Mr. Head’s daughter broke out of his enclosure and attacked Albert. The dog took a bite on the boy's calf, leaving a chunk missing out of his leg and a noticeable scar.

The landlord’s liability was alleged to be founded on his: “Leasing premises to an individual who is the owner of an animal with known dangerous propensities.” Cop-page died prior to trial and his Estate was evidently substituted as a defendant, although no pleadings to this effect appear in the record.

In its reasons for judgment, the district judge based his finding of liability on the part of Coppage, the lessor, on the fact, established at trial, that he had not inspected his property for 10 years, and that “the strict liability ascribed to the dog owner also attaches to the landlord in this case, for there was negligence on the part of the property owner in not inspecting his property for 10 years, and this negligence, however slight, places him, the landowner, in a posture wherein he shares with the dog owner the liability for the damage inflicted on Albert Parr.”

The trial judge, in this portion of his judgment, apparently states two different bases of liability — strict liability under Civil Code Article 2321, and under a negligence theory of Civil Code Articles 2315 or 2316. Plaintiff, on the other hand, offers a theory of liability premised on the allegation that the defendant Head, the lessee of Coppage, was in reality a “real estate manager” for the defendant Coppage and, as such, indemnified under the property owner’s liability policy. We shall address these issues separately.

Can the strict liability of the defendant-dog owner “attach” to the landlord? There is no basis in our jurisprudence which would lead us to so conclude. Our Supreme Court has interpreted the applicable Civil Code articles to mean that the liability of the animal owner is in the nature of strict liability — the master of the animal is presumed to be at fault. Holland v. Buckley, 305 So.2d 113 (La.1974). Liability arises solely from the legal relationship between the owner and the animal. The existence of this liability follows the animal into the custody of a third person. It is not necessary that the owner of an animal also have control or “garde” of the animal. Rozell v. Louisiana Animal Breeders Cooperative, et al., 434 So.2d 404 (La.1983).

The underlying reason for the owner’s liability is that, as between him who created the risk of harm and the innocent victim thereby injured, the risk-creator should bear the loss. He maintains the animal for his own use or pleasure. Holland, supra

This reasoning alone relieves the landlord from liability to a third person for the injuries caused by his lessor’s animal. The landlord obtains no profit or pleasure from the existence of the risk; in this case, the dog. While a landlord is strictly liable for injuries caused by vices or defects of the building, he enjoys the benefit of ownership of which this liability is a concomitant. There is no such benefit in the case of a non-owner for us to impose strict liability in the present case. To analogize the problem, where would there be equity in the imposition of strict liability upon a lessee for injuries to a third person caused by a defect in the occupied building? Barring creation of, or knowledge of the defect, which is an altogether different basis of liability, no social purpose is served, nor is there a balancing of interests. The strict liability of the animal owner under C.C. art'. 2321 cannot be imputed to a non-owner.

There could, however, be a basis for a finding of negligence on the part of the landlord under Articles 2315 or 2316. The trial judge found that failure to inspect the premises for a period of 10 years was negligence, which was sufficient to hold the landlord liable. While the Civil Code states an obligation to repair and maintain leased premises, it does not require periodic inspections by the lessor. The duty is maintenance of the premises in a safe and habit-able condition. We decline to create a duty to inspect, under the circumstances presented here, although it is clear that a property owner, encumbered with the strict liability of Civil Code article 2695, would exercise wise caution to conduct periodic inspections of his property.

However, the determination of whether the conduct complained of bears a causal connection in fact to the occurrence of the accident is properly made without reference to those policy considerations required when ascertaining liability by the duty-risk approach. Shelton v. Aetna Casualty and Surety Co., 334 So.2d 406 (La.1976). If the plaintiff can show that he probably would not have suffered the injury but for the defendant’s conduct, he has carried his burden of proof relative to cause in fact.

We do not find that any inspection of the residence would have prevented plaintiffs injury. Had Mr. Coppage examined his property, he would have seen the animal and the enclosure built for the dog. According to the testimony, the enclosure was fence-high. The dog was kept in the enclosure when children played in the yard. There were apparently warning signs (these were originally posted to caution against dogs previously owned by the Heads, not the dog in question). Nevertheless, they were there and served to warn about this dog also.

In short, unless the dog was unusually large or displayed vicious propensities at the time of the inspection, Coppage would have seen only a family pet cared for with sufficient precautions. While such precautions do not exonerate the pet owner, they suffice to preclude a finding of negligence on the part of the lessor. There was no showing that Coppage had actual knowledge of the dog’s existence, much less any dangerous tendencies. An inspection by the landlord would have revealed only the presence of the dog, and not its disposition. Thus we find that any failure to inspect on the part of Coppage was not causally related to the injury and is therefore not actionable. Shelton, supra.

Plaintiff argues most strenuously that Guaranty National Insurance Company should be held liable under the “real estate manager” clause, referred to herein-above. There was no contest at trial about the fact that Coppage never visited the property in question and that, at the inception of the lease, Head agreed to make all repairs on the house. In return for this agreement, Coppage would not increase the rent. The arrangement was mutually satisfactory for 10 years.

Claude Head testified that if something was wrong, he would inform Coppage, and then proceed to repair it. Also, in such things as a new sink, new toilet, interior and exterior painting, all labor and costs were borne by the Heads. Plaintiff contends such were major projects, outside the scope of ordinary and necessary repairs, and so put the Heads beyond the position of mere lessees.

We are of the opinion that the Heads and Coppage merely contracted for terms which are at variance with the Civil Code articles. Rather than calling upon the landlord to make the necessary repairs, or withholding certain amounts paid for repairs from the rent (CC articles 2293 and 2294), the lessor and lessee elected to have a different arrangement.

While the lease and the codal articles may conflict, the articles are not prohibitory laws which would be unalterable by contractual agreement, but are simply intended to regulate the relationship between lessor and lessees, when there is no contractual stipulation in the lease. General Leasing Co. v. Leda Towing Co., Inc., 286 So.2d 802 (La.App. 4th Cir.1974). Unless there was some attempt to derogate from the force of laws for the public order (for example, an attempt to relegate the landlord’s strict liability to the lessee) the parties can renounce the laws in their favor, if the rights of others are not affected.

We find that defendant Head did not become a manager of the defendant Cop-page, but was merely a lessee on somewhat uncommon terms. In addition, we are not convinced that the repairs were so extraordinary as remove them from the realm of ordinary and necessary repairs.

For the foregoing reasons, that portion of the judgment finding Robert Coppage and Guaranty National Insurance Company liable to plaintiff for damages is reversed. Each party is condemned to pay his own costs on appeal.

REVERSED IN PART.

      . The policy, introduced into evidence by the plaintiff, states in pertinent part:
      II. PERSONS INSURED
      ... (d) any person (other than an employee of the named insured) or organization while acting as real estate manager for the named insured; and ...

      . C.C. Art. 2322.

      . C.C. Art. 11.


text:
    H.W. BARKMAN and William P. Chauvin v. ZONING APPEALS BOARD OF JEFFERSON PARISH and Emile H. Simoneaux, Jr.
    No. 83-CA-478.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 8, 1983.
    Stephen F. Babin, New Orleans, for plaintiffs/appellants.
    John M. Garic and William Reinhardt, Metairie, Hubert Vondenstein, Gretna, for defendants/appellees.
    Before KLIEBERT, BOWES and CUR-RAULT, JJ.
   BOWES, Judge.

Plaintiffs have taken this appeal from a judgment of the district court affirming the decision of the Zoning Appeals Board, permitting Emile Simoneaux, Jr., a height variance for a garage on his premises.

Emile H. Simoneaux, Jr., was denied a permit to build a combination garage and storage building in his back yard because the plans submitted exceeded the height limitation for accessory buildings established in the Comprehensive Zoning Ordinance of Jefferson Parish. Mr. Simoneaux then applied to the Zoning Appeals Board for a height variance of eight feet. After the first hearing, the Board voted to inspect the property and scheduled a second hearing. At this time, according to the testimony, the Board suggested to Mr. Si-moneaux that he present plans for his building at a height of eighteen feet, which would require a five-foot variance. At the next meeting, Mr. Simoneaux presented plans for a building seventeen feet in height, and requiring a variance of four feet. Amid protests made by Messrs. Chauvin and Barkman, the variance was granted. Plaintiffs appealed this decision to the District Court, along with a petition to the court that an injunction issue prohibiting Mr. Simoneaux from constructing the garage. An exception of improper cumulation of actions was filed and maintained, with the trial court ordering separate trials for the injunction proceedings and the appeal. The injunction was denied, which denial is not on appeal before us.

As a result, Mr. Simoneaux was not a party to the suit at bar. After a trial on the merits, the Court affirmed the decision of the Zoning Appeals Board.

After this appeal was perfected, the defendant Board filed an exception of no right of action, alleging that plaintiff William Chauvin has sold his home. Because he no longer owns the adjoining property, defendant contends Chauvin has no further right of action to proceed in this action, and the action as to him is now moot. As the exception was properly pleaded under C.C.P. article 2163, the defendant submitted copies of the act of sale on the property in question, and the exception remains unopposed by plaintiff even after oral argument by defendant, we maintain the exception and dismiss the action as to William Chauvin.

The remaining appellant urges that the trial court erred in concluding that the plaintiffs “failed to carry their burden of showing that the Board acted arbitrarily or capriciously and in failing to find that the Board exceeded its authority in granting the variance in question.” In addition to requesting a reversal of the trial court’s finding, appellant also argues that, this Court must order the removal of the offending structure, and/or for damages under C.C.P. article 2161. However, inasmuch as Mr. Simoneaux is not a litigant in the present matter, this Court has no authority to annex him as a party or issue orders to him.

Mr. Barkman is, and Chauvin was, each neighbors (in the narrow sense) of Mr. Si-moneaux. Mr. Simoneaux approached them and many other residents of the neighborhood with plans for his garage prior to his appearance before the Zoning Appeals Board. With the exception of plaintiffs, no one registered any objection and, in fact, most approved of the project.

Barkman and Chauvin are abutting property owners — their back yards are separated from Simoneaux’s by a seven foot fence — and the garage would be set back three feet from the property line. The testimony at trial established the appellants were basically concerned that the esthetic value of their homes would be diminished — they didn’t want to look at this garage every time they went into their yards. There was no real question of an intrusion of privacy, since Simoneaux had agreed not to put windows at the rear of the building. Obstruction of light and air was also mentioned but was not the primary concern.

Appellant argues that the major is-, sue to be overcome on appeal is whether or not Simoneaux proved hardship, as required by the Comprehensive Zoning Ordinance of Jefferson Parish. At trial, a Board member, Mr. Frank, testified that the Board had found that the requirement of hardship had been met,' and therefore the variance was granted. Although the judgment does not specifically reflect such a finding, it is apparent that the trial judge also believed the issue of hardship had been satisfied. Under the facts and circumstances of this case, we cannot say that such is manifestly erroneous so as to disturb the trial court’s finding. Canter v. Koehring Co., 283 So.2d 716 (La.1973).

It is fundamental that zoning laws are in derogation of private ownership and must be strictly construed in favor of the property owner. Wright v. DeFatta, 152 So.2d 10 (La.1963). Each case must be decided on facts peculiar to it and no general rule can be formulated as to what constitutes hardship or unusual and practical difficulties sufficient to authorize grant of a variance. All relevant factors must be considered. State ex rel. Maple Area Residents, Inc. v. Board of Zoning Adjustments, 365 So.2d 891 (La.App. 4th Cir.1978). The Court must afford a rebuttable presumption of regularity to the Board’s decision. Gertler v. City of New Orleans, 346 So.2d 228 (La.App. 4th Cir.1977). The Court is obliged to affirm the decision unless there is a clear abuse of discretion by the Board. Coliseum Square Association, Inc. v. Board of Zoning Adjustments, 374 So.2d 177 (La.App. 4th Cir.1979), with the burden of proof on the complaining party. State ex rel. Maple Area Residents, supra.

“Although, on one hand, we might disagree with the Board’s findings and, on the other hand, ascribe no manifest error to those findings of the district judge, we are obliged to sustain the Board’s conclusions unless the weight of the evidence in its entirety so strongly preponderates against such conclusions that it compels us to find an abuse of discretion on the part of the Board.” Coogan v. Parish of Jefferson, 381 So.2d 1320 (La.App. 4th Cir.1980).

Following the above standards of review, we do not find such a strong preponderation of the evidence against the Board’s findings such as to compel us to find an abuse of discretion. Considering all the relevant factors presented in the record of this case, we hold that plaintiff did not carry his burden of proof. Accordingly, the decision of the trial court is affirmed. Costs of this appeal are taxed to the appellant.

AFFIRMED.

      . C. The Board shall have the authority to GRANT THE FOLLOWING VARIANCES:
      1. Permit a variance in the yard requirements, height restrictions, or lot-area-per-family requirements of any district, but only where there are unusual or practical difficulties or unnecessary hardships in the carrying out of these provisions due to an irregular shape of the lot, or topographical conditions, provided such variance will not seriously affect any adjoining property or the general welfare.


author: CURRAULT, Judge.

text:
    Michael P. MILLET v. HOOKER CHEMICAL COMPANY.
    No. 83-CA-508.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 8, 1983.

      Robert R. Faucheux, Jr., Reserve, for plaintiff-appellant.
    Darryl J. Foster, Lemle, Kelleher, Kohl-meyer & Matthews, New Orleans, for defendant-appellee.
    Before BOWES, CURRAULT and GRIS-BAUM, JJ.
   CURRAULT, Judge.

This appeal originates in the Twenty-Ninth Judicial District Court for the Parish of St. Charles wherein the Honorable Ruche J. Marino dismissed petitioner’s claim for worker’s compensation benefits.

Plaintiff, Michael P. Millet, was an employee of defendant, Hooker Chemical Company, from September 21, 1966 until October 5, 1978. Mr. Millet was initially hired as a production technician but worked in various departments and in differing capacities ranging from technician to supervisor during his employment. When he left Hooker Chemical Company on October 5, 1978, Mr. Millet was assigned to and was working in the maintenance department as a maintenance technician.

On January 30, 1980, well over fifteen months later, Mr. Millet filed a petition for worker’s compensation. In this petition, Mr. Millet based his claim for disability on a back condition from an accident which he alleged specifically to have occurred on October 5, 1978, and to have caused severe crippling injuries to his lumbosacral region.

Defendant filed a peremptory exception of prescription which was initially upheld. However, after plaintiff’s request for a new trial on the prescription issue was heard, the trial court referred the prescription defense to the merits.

Trial was held on March 10, 1983, and judgment was rendered on May 26, 1983 in defendant’s favor. In his written reasons, the trial judge concluded plaintiff had failed to show that there was a causal relationship between his injury and his job. On appeal, it is clear that the only question is whether or not the trial judge was manifestly erroneous in his conclusion.

In determining whether the trial court erred, we are guided by our Supreme Court which stated in Culp v. Belden Corp., 432 So.2d 847 (La.1983) at page 851:

“On appellate review, the trial court’s factual findings concerning work-related disability should be given great weight and should not be disturbed where the evidence before the trier of fact supports a reasonable factual basis for the trial court’s findings, unless clearly wrong.”
(Citation omitted)

There is no doubt that this plaintiff does indeed suffer from lower back problems. More specifically, he was diagnosed as having degenerative disc disease of the L-4, L-5 level coupled with a chronic discogenic lumbosacral sprain. The record is replete with medical testimony and documentation substantiating plaintiff’s medical claims. However, the existence or extent of his medical problems are not the primary issue before us. We must decide the soundness of the trial court’s decision that plaintiff failed to establish a work-related causal connection with his medical problems.

Both of Mr. Millet’s supervisors, Curtis Cullen, and his immediate foreman, Stuart Petrie, testified he had never reported any accident to them, never complained of any back pain while on the job, and never related to them that his work caused any physical difficulties. Plaintiff admitted he never reported any occupational ac: cident or injury; although, as a foreman, he had instructed his workers to always report job-related injuries.

Further, plaintiff admitted that in his claim forms submitted to Hooker Chemical Company or Aetna Insurance Company, either for receipt of disability benefits or reimbursement of medical expenses, he stated his disability was not job-related. In fact, there is a notation in plant hospital records dated September 18, 1978, where he related twisting his back at home while lifting a gas can.

The only indication that plaintiff’s work activities caused or contributed to his disability is his own statement made to Dr. R. Vaclav Hamsa, while hospitalized, that his back became worse after his transfer to maintenance from solvents where he had been a supervisor. Plaintiff also testified he told a co-worker, Earl Aucement, about an incident of back pain while lifting a pump, admittedly though he made no effort to have Aucement come to court to corroborate his testimony.

Appellant argues, as we are well aware, that “accident” does not necessarily mean a sudden, violent and traumatic event; a claimant need only demonstrate that his disability was caused by a work activity which can be gradual and progressive in nature. Thus appellant contends that the only requirement that need be proved is that the disability was sufficiently job-related.

The trial court was faced with a situation in which no accident as such occurred; no report of any occupational accident or injury was ever made; no corroborating evidence of any such accident or injury was produced; affirmative testimony from plaintiff’s supervisor and immediate foreman was produced to the effect that no accident or injury or job-related disability was ever reported by plaintiff; and claim forms submitted by plaintiff repeatedly state his disability is not job-related.

We must agree with the trial court that plaintiff failed to carry his burden of proof. As the record is absent any evidence establishing a minimal causal relationship between plaintiff’s medical problems and his work activities, there is no reasonable factual basis upon which the trial court could have concluded plaintiff’s disability was job-related. On appeal, appellant is not convincing that the trial judge was clearly wrong, nor are we so inclined to rule.

Accordingly, for the above-stated reasons, we affirm the decision of the trial court dismissing plaintiff’s claim for worker’s compensation. Appellant is to pay costs of this appeal.

AFFIRMED.


author: GAUDIN, Judge.

text:
    Donald G. JONES and Gloria Jones, Individually and as the Natural Tutors of Their Minor Son, Donald G. Jones, Jr. v. CITY OF KENNER; City of Kenner Fire Department Emergency Ambulance, and the CNA Insurance Company.
    No. 5-305.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 8, 1983.
    Jerome M. Yolk, Jr., Kenner, for plaintiff s-appellants.
    Francis G. Weller, Deutsch, Kerrigan & Stiles, New Orleans, for defendants-appel-lees.
    Before BOUTALL, BOWES and GAU-DIN, JJ.
   GAUDIN, Judge.

This case emanated from the 24th Judicial District Court, where a motion for summary judgment filed by the City of Kenner was granted, dismissing the City from this litigation. We affirmed at 435 So.2d 1000, holding, as did the trial judge, that LSA-R.S. 37:1732(B) granted statutory immunity to the City of Kenner.

The Supreme Court of Louisiana, 435 So.2d 992, finding LSA-R.S. 37:1732(B) inapplicable, remanded to this Court for further consideration of the City of Kenner’s motion for summary judgment. The City’s motion was based on (1) immunity and (2) the contention that there were no genuine issues of material fact.

Petitioners in this action are the parents of Donald G. Jones, Jr., a child who fell from a sofa and was unable to breathe properly because of the fall or because food or vomit was lodged in his throat, blocking air passage. An ambulance manned by two firemen immediately answered the emergency call and rushed the young boy to East Jefferson Hospital.

Regrettably, the child never recovered, requiring almost total nursing care until he died five years later. He was two years of age when this incident occurred.

In the petition, Mr. and Mrs. Jones state in paragraph XI that “... the injuries received were caused by acts of negligence, the specific nature of which are unknown. ..” Paragraphs XII and XIII then itemize 20 acts or omissions in an attempt to show negligence on the part of the firemen or a breach of a duty of care owed to petitioners.

While the City of Kenner is a named defendant, the firemen, David Townsend and Michael Simms, were not individually named as they had completed an American Red Cross first aid course and were thus statutorily protected.

In our prior decree, at page 1003, we noted that:

“The district judge obviously based his decree on the applicability of LSA-R.S. 37:1732. He did not comment on the validity of the City’s second argument— i.e., that there wasn’t any actionable negligence — but the record would support this contention as well. There are no material issues of contested fact and the procedure followed by Townsend and Simms, from start to finish, shows no impropriety of any kind.”

Considering the petition’s allegations along with the depositions and affidavits in evidence, we remain of the opinion that there are no genuine issues of material fact and that the City is entitled to a summary judgment as a matter of law, in accord with LSA-C.C.Pr. art. 966. The record is devoid of any medical statement or evidence placing blame on either the firemen or the City.

FACTS

The emergency call was made at 6:52 p.m. and the ambulance, with Townsend and Simms aboard, arrived at 2515 Short Street in Kenner at 6:55. Although Townsend and Simms had completed the American Red Cross course and Townsend had completed a course in emergency treatment, neither had any advanced medical training.

The firemen were met by Mrs. Millie Jones, the child’s grandmother, who was hysterical. The young boy was unconscious and had only a weak pulse. The firemen were in the residence for less than four minutes, during which time Townsend checked Donald’s eyes with a small light and inserted his fingers into the boy’s throat, feeling for an obstruction.

Finding no obstruction and recognizing the seriousness of the child’s condition, Townsend carried Donald to the ambulance and by 6:59 they were en route to the hospital.

Townsend said:

“I set up the resuscitator and we put the oxygen on him, as soon as we got him in the ambulance.”

The ambulance arrived at East Jefferson Hospital at 7:05, where it was met by hospital personnel. Donald was taken to the emergency room, where a tube was inserted in his throat to assist breathing.

Dr. Andrew Rinker, the pediatrician who examined Donald in the emergency room, testified that he thought the young boy had “... a laryngeal spasm or a foreign body in the windpipe producing anoxia.”

The medical testimony, by way of various depositions and an affidavit in evidence, varied with regard to the exact cause of the young boy’s illness. Dr. Evan P. Howell, one of the treating physicians, said the child may have had (1) an epileptic seizure, (2) fallen and “torn blood vessels within the skull” or (3) choked on food. Dr. John D. Jackson, a neurologist, said that the young boy may have experienced a seizure, but he wasn’t certain.

Dr. Rinker said that the child’s condition “... was precipitated either by laryngeal spasm or foreign body in his windpipe and I think he had had such an insult to his brain that I do not think he had an underlying epilepsy and I do not think that he had a seizure prior to whatever was the incident. And I think that he was decerebrate and neurologically defunct on arrival at the hospital.”

Dr. Judith A. Harris, a pediatrician, stated in her affidavit that the child suffered from "... decreased oxygen reaching the blood in the lungs.”

Although the doctors did have different ideas concerning the cause of the young boy’s medical problems, not one of them suggested that the ambulance was not adequately equipped or that the fireman did anything wrong or neglected to do something they should have done.

The following excerpt is from Dr. Howell’s deposition:

Q. “... From what you know about this case, is there anything that the emergency crew could have done to alter the course of events with respect to the condition of this child or to reverse what was in the process of occurring?
A. I doubt that there’s anything they could do to significantly alter the outcome of the case.
Q. Why is that, doctor? Why do you have that opinion?
A. Well, one of the first things you have to do with medical care treatment is to very firmly establish a diagnosis and this involves getting a very good history and then examining the patient and instituting care. Now, sometimes this can be done quite rapidly but I think that in this particular case where nobody really seems to know exactly what has happened and apparently a great number of experts have looked at this and tried to figure out exactly what happened, to ask two firemen to come upon a scene and significantly alter the outcome of a case like this I think is asking a bit too much for their degree of training and responsibility and technical know how.
Q. What could a trained medical crew have done?
A. I wonder if they could have altered things either. Then you’re talking about having to have all sorts of equipment to take care of a patient like this.
Q. For example, what type of equipment?
A. Well, I think you have to have a laryngoscope. That is an instrument that would be used to push the tongue out of the way and look at the opening for the airways. That’s just one thing. I think you have to have suction. I think you have to have bicarbonate. I think you have to have steroids which is drugs which would suppress inflammatory responses. You might even have to have a respirator on hand.
Q. Do you think any of that equipment would have altered the course of events in this case?
A. Even with all that, it’s possible that you may not have altered events either.”

OPPOSITION TO MOTION

In opposition to the City’s motion for summary judgment, plaintiffs submitted Dr. Harris’ affidavit and an affidavit executed by Mrs. Ernest Clark. Mrs. Clark, who lived next door to where the Jones child became ill, said that oxygen was not administered in the house and that the ambulance driver told her the day following the incident "... that the oxygen equipment on the ambulance was broken ... ”, thereby implying that oxygen could not have been administered to Donald on the way to the hospital as Townsend said it was.

At first glance, such assertions would seem to create enough of a contest to defeat summary judgment, as the law does favor trial of contested issues. However, Mrs. Clark was not in the ambulance when it left the Short Street residence. Mrs. Jones, who did ride in the ambulance, did not say that oxygen was not administered or that the oxygen equipment was defective.

Of more importance with regard to the City’s motion for summary judgment is the clear reality that there is no medical indication that the administration of oxygen at the residence or the ambulance would have made any difference or that anything the firemen did or did not do contributed to Donald’s plight. Dr. Howell stated that medical personnel would have “... to have all sorts of equipment to take care of a patient like this ...” and Dr. Jackson said that the young boy was not suffering from anything related to the failure of administering oxygen.

From Dr. Rinker’s deposition:

Q. “Doctor, let’s assume that this boy did have what you say was a laryngeal spasm which induced this cerebral anoxia, at what point would the administration of oxygen to this boy following the laryngeal spasm, how soon thereafter would the administration of oxygen have been effective in preventing his present condition?
A. If he had laryngeal blockage, whether it be spasm or foreign body that we are discussing, the administration of oxygen to him would have been of no value at all. The oxygen has to go the rest of the way down the trachea into the alveolar sacs before it’s available for transport to the brain so whether he was administered oxygen or not would have had no effect unless he had an open airway. And that’s the first thing that they teach the medical people, they have to have an open airway.
Q. And in order to open that airway, is that a sophisticated procedure to open that airway?
A. For a laryngeal spasm it’s very sophisticated to get oxygen or open it up because in this office I cannot see a larynx. It requires anesthesia and a laryngoscope and it can be done in tiny infants and people that are gone all the way, but you need a laryngo-scope to see a larynx because the larynx is four centimeters, five centimeters down.
Q. It’s not simply a matter of somebody sticking an index finger down your throat and clearing it?
A. That’s correct.”

CONCLUSION

To determine whether there is a genuine issue of material fact, a trial court must of necessity examine the merits. Despite the presence of disputed facts, summary judgment will be granted as a matter of law if the contested issues of fact are so patently insubstantial as to present no genuine issues. Allegations without substance will not preclude summary judgment. See Metropolitan Bank of Jefferson v. Summers, 257 So.2d 179 (La.App. 4th Cir.1972), writ refused at 261 La. 462, 259 So.2d 914 (1972); City of Baton Rouge v. Cannon, 376 So.2d 994 (La.App. 1st Cir.1979); and Aydell v. Charles Carter & Company, 388 So.2d 404 (La.App. 1st Cir.1980), writ refused at 391 So.2d 460 (La.1980).

When documents in support of a motion for summary judgment are sufficient to resolve all genuine issues of material fact, the sufficiency shifts the burden to the other party to present evidence showing that a material fact is still at issue. Jones v. American Bank and Trust Company, 387 So.2d 1360 (La.App. 1st Cir.1980).

Here, the City of Kenner’s documents resolve all genuine issues of material fact and shift the burden of proof. The City showed (1) that the firemen responded quickly to the emergency call; (2) that the firemen, at the accident scene, did what they were trained to do and quickly ascertained that the problem was serious and that a physician and sophisticated equipment were needed; (3) that the firemen quickly transported the child to the hospital; and (4) that nothing the firemen did or did not do at the residence or in the ambulance would have averted or changed the course of the young boy’s medical condition. What Townsend and Simms did was in line with their limited medical training and experience and was all that could be reasonably and legally expected of them.

In rebuttal, petitioners rely on their pleadings and the affidavits of Dr. Harris and Mrs. Clark. These, however, do not demonstrate that any material fact remains at issue.

Considering the facts presented and the record as a whole, we conclude that the City of Kenner is entitled to the relief it seeks. We therefore affirm the district judge’s granting of the City’s motion for summary judgment.

AFFIRMED.

      . According to the affidavit executed by DJ. Mumphrey, Chief of the City of Kenner Fire Department.

      . See LSA-R.S. 37:1732(A).


text:
    Doris Marie DARVILLE, Individually and on Behalf of her Minor Children, Bryan Darville, Marvis Darville and Tiki Darville v. TEXACO, INCORPORATED and XYZ Insurance Company.
    No. 83-CA-365.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 8, 1983.

      John S. White, Jr., Baton Rouge, for intervenor-appellant.
    Wiley G. Lastrapes, Jr. and Joan G. Quin-ters, New Orleans, for defendants-appel-lees.
    Paul J. Galuszka, New Orleans, for plaintiff-appellant.
    Before BOUTALL, GAUDIN and GRIS-BAUM, JJ.
   GAUDIN, Judge.

The primary issue in this appeal is whether petitioners sufficiently spelled out a cause of action under the intentional tort statute, LSA-R.S. 23:1032.

The trial judge did not think so and he maintained two exceptions, terminating the case. Appellants also complain because of the failure of the trial judge to authorize additional pleadings.

For the following reasons, we affirm the maintaining of the exceptions and the refusal to allow more pleadings.

Plaintiffs are the surviving widow and children of Austin Darville, who died as the result of an explosion and fire that occurred on December 3, 1979. At that time, Mr. Darville was employed by Louisiana Vacuum Service, Inc. and was working at the Texaco refinery in Convent, Louisiana.

Defendants are Texaco, Inc. and various executive officers of Texaco.

Along with this lawsuit, plaintiffs filed a similar complaint in United States District Court for the Eastern District of Louisiana. In the federal case, it was finally decided that Texaco was a statutory employer of Mr. Darville. Thus, Mrs. Darville and her children are limited to workmen’s compensation benefits unless they can qualify under R.S. 23:1032. This statute restricts an injured employee to workmen’s compensation unless (1) he was engaged in an activity outside the normal scope of his employment or (2) his injury was the result of an intentional act. It was not contended that Mr. Darville was working outside of his usual employment.

In their original petition, Mrs. Darville and the children contended that Texaco was negligent and that the doctrine of res ipsa loquitur is applicable.

In first and second supplemental and amended petitions, plaintiffs named various executive officers and stated:

“The acts and omissions of the corporate and/or executive officers ... were of such a nature as to meet any requirements of Louisiana law relative to ‘intentional tort’.”

It was alleged that the executive officers:

(1) Compelled the use of machinery in conjunction with the running of a gasoline engine, which made an explosion a substantial certainty;

(2) Compelled the use of unsafe equipment;

(3) Failed to provide (a) safe working conditions, (b) proper facilities and (c) safe working equipment;

(4) Failed to perform recommended safety procedures or to take proper measures to prevent an explosion;

(5) Failed to comply with safety regulations and statutes;

(6) Failed to install adequate warnings;

(7) Failed to establish, promulgate and teach safety procedures and guidelines;

(8) Improperly designed, manufactured and installed equipment; and

(9) Failed in numerous other ways to insure safety.

In response, the executive officers filed an exception of no cause of action contending that the pleadings were inadequate . for an intentional tort.” Also, Texaco and one of the executive officers, A.A. Reisdorf, filed an exception of res judicata because of the federal court disposition.

The Supreme Court of Louisiana, in Bazley v. Tortorich, 397 So.2d 475 (La.1981), stated, regarding R.S. 23:1032, that the “... principal legislative aim ... was to broaden the class of defendants to be granted immunity from suits by injured employees in tort ...” Subsequent to Baz-ley, a series of decisions have pointed out the difficulty a plaintiff has in successfully pleading an intentional tort action. See Maddie v. Plastic Supply & Fabrication, 434 So.2d 158 (La.App. 5th Cir.1983), and Weinnig v. Brown & Root, 428 So.2d 1199 (La.App. 5th Cir.1983), reversed at 434 So.2d 1099 (La.1983).

The pleading requirements under R.S. 23:1032 and Bazley are strict; and, as we said in Mize v. Beker Industries, 436 So.2d 1333 (La.App. 5th Cir.1983):

“... for an injured worker to pursue an R.S. 23:1032 tort claim, he must precisely allege acts or omissions that call for almost the same degree of proof as that required in a criminal proceeding. Otherwise, the language falls short...”

The pointing of a gun at and the shooting of one employee by another were found by the Supreme Court to be unintentional insofar as R.S. 23:1032 is concerned. Citizen v. Theodore Daigle and Brother, Inc., 418 So.2d 598 (La.1982).

In Reagan v. Olinkraft, 408 So.2d 937 (La.App. 2nd Cir.1981), the court stated that liberal construction of pleadings cannot be used to keep an action alive if Baz-ley requirements are not satisfied.

Here, the pleadings are similar to those in Weinnig and would show, if proven, negligence on the part of Texaco’s executive officers but not that any executive officer either wanted the explosion to take place or knew or believed that the explosion was substantially certain to result from any act or omissions.

Considering the foregoing, we cannot say that the trial judge erred when he maintained the exception of no cause of action filed by the executive officers, or that the trial judge was wrong by maintaining the exception of res judicata filed by Texaco and one of the executive officers. We note further that if the pleadings do not adequately recite an intentional tort cause of action against any of the Texaco executive officers, the company itself cannot be required to defend against R.S. 23:1032 assertions.

Permitting supplemental and amended pleadings is within the discretion of the trial judge. We find no abuse in this case.

We affirm the appealed-from decisions, at appellants' cost.

AFFIRMED.

      . Case reported at 674 F.2d 443.


author: PER CURIAM.

text:
    Vinton J. CROSBY v. Lois Pitre CROSBY.
    No. 82-CA-205.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 8, 1983.
    Robert G. Creely, Gretna, for plaintiff/defendant in rule/appellee/mover.
    C. David Schumacher and Carl J. Schu-macher, Jr., New Orleans, for defendant/plaintiff in rule/appellant.
    Constance Charles Willems, President, Louisiana Ass’n for Women Attys., New Orleans.
    Before BOWES, GAUDIN and DU-FRESNE, JJ.
   ON APPLICATION FOR REHEARING

PER CURIAM.

Our original opinion is reported at 434 So.2d 162. Subsequently, we granted a rehearing and heard oral arguments.

While the merits of the rehearing were under advisement, the following joint motion was filed by the parties:

“It is stipulated by and between the plaintiff and defendant that this suit has been compromised and settled and the parties move it be dismissed with prejudice, each party to pay its own respective costs.”

Accordingly, a ruling on the rehearing is moot and will not be forthcoming.


author: GRISBAUM, Judge.

text:
    Adam J. MASHIA v. Lucy POLLARD.
    Nos. 83-CA-435, 83-CA-436.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 8, 1983.
    Reed & Reed, Bruce Reed, New Orleans, for plaintiff-appellant.
    Steven Griffith, Destrehan, for defendant-appellee.
    Before BOWES, CURRAULT and GRIS-BAUM, JJ.
   GRISBAUM, Judge.

This is a suit to determine whether a donor had the capacity to donate real estate. Adam Mashia initially sued his mother, Lucy Mashia Pollard, for losses he allegedly incurred in constructing a was-herteria on her property and in operating her barroom located on the same property; he also alleged she owed him for loss of income as the result of his being evicted from his mother’s property. [Suit No. 15604] He filed a supplemental pleading claiming she owed him for contracting services he performed on a five-unit apartment building which she also owned. Lucy answered this suit denying these allegations and, in a reconventional demand, claimed her son owed her rent for use of her property. In a second suit, [No. 16835], Lucy sought to declare null and void a sale of ten lots to her son for $500.

These matters were consolidated for trial, which commenced February 10, 1977. According to the trial court’s reasons for judgment, during this trial Lucy was often incoherent, repeated the same answer to varied questions, and answered in a contradictory and unresponsive manner. After questioning the witness himself, the trial court declared Lucy Mashia Pollard to be incompetent to testify, to assist counsel, and to understand the proceedings. He continued the matter and suggested she be interdicted. [The transcript of this initial proceeding is unavailable. The trial court has certified the above facts.]

On June 8, 1979, this consolidated suit came again before the trial court. It initially handled the interdiction proceeding and found there was insufficient evidence to adjudge Lucy Mashia Pollard incompetent.

In the son’s suit against his mother [No. 15604] the trial court found against the son. It also found the mother failed to establish with any certainty her losses incurred during the time of the son’s takeover of her property. Therefore, it denied the mother’s reconventional demand. However, in the matter numbered 16835, the trial court found Lucy Mashia Pollard was not competent to execute a donation or an act of sale and that Adam Mashia failed to pay the $500 purchase price to his mother, Lucy Mashia Pollard. It, therefore, declared the donation on April 12, 1968 and the subsequent sale of the property on November 4, 1968 null and void and recognized Lucy Mashia Pollard to be the owner of the property. Adam Mashia appeals that part of the trial court’s judgment which found Lucy Mashia Pollard incompetent upon the date of the original act of donation [April 12, 1968] and declared the act of donation null and void. We reverse.

The sole issue is whether the trial court was “clearly wrong” in finding Lucy Mas-hia Pollard incompetent to execute an act of donation on April 12, 1968.

On April 12, 1968, Lucy executed an authentic act of donation which transferred ten lots in St. Charles Parish to her son, Adam. Later, on November 4, 1968, she executed two acts; one, a revocation of the prior donation and another, a sale which transferred the property to her son under onerous title for $500 cited as the purchase price. The testimony at the trial focused primarily on the events surrounding the November 1968 revocation of the donation and the act of sale.

After a careful analysis of the record, we find the following testimony to be pertinent to the issue of capacity to donate: Lucy stated she did not sign the act of donation and doesn’t remember going to the notary’s office; the signature on the notarial act is not hers; and she was ill in 1967 due to a sugar diabetes condition. Specifically, she claims in April of 1968, she was under medical treatment; she also reported experiencing kidney trouble and having an operation on her neck [thyroid]; she claims to have had three or four operations. On cross-examination, she admitted her kidney operation was in 1974.

Additionally, Melina Pollard, Lucy’s niece and nurse, testified she saw Lucy on a regular basis in 1968. She stated Lucy had been under treatment for a long time but admitted she didn’t know how long Lucy was under treatment. When she was questioned concerning Lucy’s condition prior to November of 1968, she merely stated Lucy was sick and couldn’t take care of herself. She finally testified Lucy had been operated on six times prior to November of 1968.

On the other hand, Adam, Lucy’s son, claims Lucy has been ill only in the past few years prior to the trial. He testified, prior to that time, Lucy was “healthy as an alligator.”

By depositional testimony, Dr. Florence Jones, a general surgeon [not board certified], stated she could not locate the medical records of Lucy for 1968. She further stated the earliest hospital records she was able to locate began with 1972. In addition she had no personal recollection of treating Lucy prior to 1972. Moreover, her records did not reveal any treatment administered to Lucy in 1968. However, she explained she was not saying she had not treated Lucy prior to 1972, but, rather, she did not have a memory of the treatment, and there are no medical records to refresh her memory.

Article 1779 of our Civil Code sets forth the necessary elements which form a valid contract: (1) parties legally capable of contracting; (2) their consent legally given; (3) a certain object which forms the matter of agreement; and (4) a lawful purpose. We are called upon to determine whether the first element, capacity to contract, is present.

In the absence of a special exception, a presumption arises that all persons possess the capacity to contract. La.C.C. art. 1782. An exception to the presumption of capacity to contract is enumerated in art. 1789 of the Civil Code recognizing the incapacity of persons who are temporarily deranged. It provides:

A temporary derangement of intellect, whether arising from disease, accident or other cause, also creates an incapacity pending its durations, provided the situation of the party and his incapacity were apparent.

Although not specifically stated, apparently the trial court found: (1) Lucy Mashia Pollard was temporarily deranged on the date of the act of donation; and (2) this derangement was apparent at that time.

The legal principles which must guide this court in applying art. 1789 of our Civil Code were well expressed in First National Bank of Shreveport v. Williams, 346 So.2d 257, 264 (La.App. 3d Cir.1977). That court stated:

“The law of this state presumes the capacity to contract and favors and promotes that freedom. But very few exceptions exist as to this presumed capacity to contract, which exceptions must be shown quite convincingly and by the great weight of the evidence. Where doubt exists as to the showing of an exception, the presumed capacity of contract prevails.” (Emphasis added)

From the testimony adduced at trial, this court cannot say the evidence quite convincingly shows that Lucy Mashia Pollard was temporarily deranged and, therefore, incompetent on the date of the execution of the act of donation in April of 1968. Lucy has produced no medical evidence demonstrating a condition of incompetence in April 1968. Lucy’s and her neice’s general and vague statements of her condition in April 1968 are insufficient to prove the incapacity to donate the property. Importantly, there is no evidence that Lucy Mas-hia Pollard’s alleged incapacity was apparent — also a requisite of our Civil Code art. 1789. Additionally, the notary who passed the act of donation did not testify nor was there any deposition taken relating to his impressions or to any of the circumstances surrounding the act of donation in April of 1968. We find no factual basis for the trial court’s concluding Lucy Mashia Pollard was not competent to execute the act of donation on the date of April 12, 1968. Therefore, the trial court was clearly wrong in finding Lucy Mashia Pollard incompetent to execute the act of donation on April 12, 1968.

For the reasons assigned, the judgment of the trial court is reversed and all costs of this appeal are to be assessed against the appellee.

REVERSED.