text:
    Gail M. SNOWDEN v. UNITED OF OMAHA LIFE INSURANCE COMPANY.
    No. 83-CA-790.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 14, 1984.

      Leonard J. Cline, Metairie, for Gail M. Snowden, plaintiff-appellant.
    John G. Gomila, Jr., Jones, Walker, Wae-chter, Poitevent, Carrere & Denegre, New Orleans, for United of Omaha Life Ins. Co., defendant-appellee.
    Before BOUTALL, CHEHARDY and DUFRESNE, JJ.
   BOUTALL, Judge.

This appeal arises from a claim by the named beneficiary for life insurance proceeds. From a judgment in favor of the defendant life insurance company, the plaintiff has appealed. We affirm.

The decedent was a thirty-year old woman, Debra Doerr Russell. On June 17,1982 she completed an application for a $25,000 whole life insurance policy with an accidental death benefit of $25,000 and named her roommates, Gail and Faith Snowden as primary and alternate beneficiaries, respectively. At the time of making application she gave to the agent her personal check for $49.00 representing the first two months’ premiums. The check was promptly presented for payment but dishonored for insufficient funds by Metairie Bank and Trust Company on June 21, 1982 and again on June 25, 1982. Ms. Russell drowned on June 26, 1982. Gail Snowden demanded payment of the proceeds shortly thereafter and the company refused on grounds that the premium had not been paid and no policy had been issued.

Ms. Snowden filed suit and following a trial on the merits judgment was rendered, dismissing her suit and finding that “no insurance policy was issued or made viable by the payment of the initial premium with a dishonored check.”

The plaintiff’s claim is based on a receipt issued to Ms. Russell which, in pertinent part, states:

“If the minimum premium deposit is paid on the date the attached application to United of Omaha Life Insurance Company ... is signed ..., then the policy applied for will be in effect from that date, subject to:
TERMINATION OF COVERAGE — The coverage will end on the earliest date an event listed below occurs.
1. We mail a refund of the premium deposit to the applicant.
2. We mail a special risk class notice or rejection notice to the applicant.
3. The applicant does not pay any premium due at the time of delivery of the policy.
4. The applicant refuses to accept the policy offered.
5. The 75th day after the date the application is signed, unless by that date a policy has already been delivered and accepted.”

The issue before us is whether, under the terms of the receipt, the dishonored check constituted payment, so that coverage was in effect.

The case of Oxner v. Union National Life Insurance Company, 289 So.2d 229 (La.App. 1st Cir.1973), writ refused 292 So.2d 243 (La.1974), is cited by both parties and states, at 231:

“It is generally true that the acceptance of a check does not amount to payment of the obligation for which it is given until it is paid by the drawee, unless there is an agreement to the contrary.. R.S. 7:189; Work Clothes Rental Serv. Co. v. Dupont Mfrs., Inc., 262 So.2d 807 (La.App. 3 Cir.1972).”

The plaintiff calls attention to the following provisions in the “Life Agreements Section” of the policy:

“2. If the minimum premium deposit is paid on the date the application is signed, then the policy applied for will be in effect from that date, subject to: (a) the terms of the attached Receipt; (b) the terms of the policy, including the suicide exclusion; and (c) United’s right to rescind the policy. A minimum premium deposit is an amount equal to the full premium for the mode chosen on the application, at standard rates, on the policy applied for.
“3. If the minimum premium deposit is not paid, or if an allotment is not registered, as provided in no. 2, then no insurance will be in effect unless: (a) during the lifetime of each person proposed for insurance, a policy is delivered and accepted and the entire first premium is paid; and (b) at the time of either delivery and acceptance or payment, whichever is later, all answers in this application are still true and complete to the best of my knowledge.”

He argues that these provisions constitute “an agreement to the contrary.” We are unable to detect in the policy provisions any suggestion of an agreement that a dishonored check was equivalent to payment of the minimum premium deposit. Under provision (3) the insurance was clearly not in effect, as payment had not been made and the policy had not been delivered. The agent who received Ms. Russell’s check and application and issued the receipt testified by deposition that according to company policy a NSF check terminates a policy immediately, but in this case a policy had not been issued. There is nothing in his testimony to suggest an arrangement between Ms. Russell and himself concerning payment of the initial premium.

The Oxner case involved the issue of whether a life insurance policy was in effect when the check for the first premium installment was dishonored and the insured died shortly afterward. The court found in favor of the plaintiff, but not because of an agreement modifying the requirement of a valid payment, as suggested by the appellant in our case. The Oxner holding was based instead on the company’s failure to present the first installment check timely, bringing into play a grace period, and its subsequent failure to send written notice before lapsing the policy. That policy had been issued and delivered, unlike the policy in our case, and the company was thus required by LSA-R.S. 22:177 to issue a written notice of lapse.

Having determined that payment of premium had not been made, that by the terms of the insurance application and receipt for the applicant’s check the life insurance coverage was not in effect, and that no policy was issued, we agree with the decision of the trial court. Accordingly, the judgment appealed from is affirmed.

AFFIRMED.


source: Caselaw Access Project

author: BOUTALL, Judge.

license: Public Domain

text:
    Lloyd BRADSHAW, Sr. v. ANCO INSULATION, INC., et al.
    No. 83-CA-796.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 14, 1984.

      Anthony L. Glorioso, Glorioso & Fleming, New Orleans, for Lloyd Bradshaw, Sr., plaintiff-appellant.
    Allen H. Danielson, Jr., Berrigan, Daniel-son, Litchfield & Olsen, New Orleans, for Anco Insulation, Inc. and Zurich Ins. Co., defendants-appellees.
    Before BOUTALL, CHEHARDY and DUFRESNE, JJ.
   BOUTALL, Judge.

This appeal arises from a tort claim by an injured worker against his employer. From a judgment in favor of the defendant, dismissing the suit on a peremptory exception of no cause of action, the plaintiff has appealed.

The plaintiff, Lloyd Bradshaw, Sr., allegedly was injured while employed as an insulator by Anco Insulations, Inc. (“Anco”), when a safety bar broke on the scaffold upon which he was standing and he fell twenty feet. He filed suit against Anco and its insurer, Zurich American Insurance Co., alleging that Anco’s employees intentionally installed the bar improperly, knowing that the consequences were substantially certain to result. The defendant filed an exception of no cause of action which was sustained. This appeal followed.

The issue before this court is whether the plaintiff’s petition states a cause of action against an employer for an intentional tort. Unless an employee can prove that his work related injury resulted from an intentional tort, his employer is immune from tort liability and the employee’s remedy is limited to worker’s compensation. LSA-R.S. 23:1032; Bazley v. Tortorich, 397 So.2d 475 (La.1981); Mayer v. Valentine Sugars, Inc., 444 So.2d 618 (La.1984).

The court in Bazley v. Tortorich, supra, made an exhaustive study of employers’ immunity and intentional tort. It concluded, at 482:

“... The meaning of intent in this context is that the defendant either desired to bring about the physical results of his act or believed they were substantially certain to follow from what he did.... Intent is not, however, limited to consequences which are desired. If the actor knows that the consequences are certain, or substantially certain, to result from his act, and still goes ahead, he is treated by the law as if he had in fact desired to produce the result....” [Citations omitted.]

In that case the plaintiff’s petition failed to allege the essential elements stated above. In the more recent case of Mayer v. Valentine Sugars, Inc., supra, the Court reiterated the requirements of the Bazley decision, but held that the plaintiff’s petition was sufficient.

In Mayer v. Valentine Sugars, Inc., supra, the trial court had dismissed the suit because the allegations of the petition constituted a conclusion of law. The court of appeal, after remand to allow amendment of the petition, which was again dismissed, held that the following allegations were sufficient to state a cause of action for intentional tort, as follows:

“continuously operating such machinery with knowledge and belief that the resulting fire, explosion and resulting injuries were substantially certain to follow.”
“continuously operating the said Valentine factory and/or defective, worn, dilapidated equipment with knowledge that the fire, explosion and resulting injuries and/or consequences were certain, or substantially certain to follow.”
Mayer v. Valentine Sugars, Inc., 430 So. 1068 (La.App. 4th Cir.1983), at 1070.

The Fourth Circuit and the Supreme Court reasoned that La.C.C.P. art. 856 is controlling, as it provides that intent of a person may be “alleged generally.” Indeed, the official comment to the revision of article 856 states that intent or other condition of mind, “cannot be particularized, and can only be raised through a general allegation thereof.” The Supreme Court concluded -that:

“Accordingly, the plaintiffs allegation that he was injured by an intentional act set forth a well pleaded fact because intent may be alleged generally. Accepting this and other well pleaded facts in the petition as true, plaintiff has sufficiently stated a cause of action for recovery due to a personal injury resulting from intentional acts by the defendant’s employees.” Mayer v. Valentine Sugars, Inc., supra, at 620.

The defendant in the case before us urges that the plaintiffs allegations are conclusory and do not contain assertions of facts to support the allegations of intent. He urges that the plaintiffs allegations bear only a “tenuous” resemblance to those in Mayer.

The pertinent allegations of Bradshaw are as follows:

“... In connection with this work other employees of the defendant, Anco Insula-tions, Inc., had erected scaffolding upon which petitioner and other employees were to perform their duties. The said employee who erected the scaffolding tied down the safety bars with wire rather than properly installing the safety bars with the required hardware equipment. Additionally, the safety bars installed by said employees were not the proper equipment for said usage.”
“The said employees whose names are presently unknown to petitioner, believed that the physical result of their acts were substantially certain to follow what they did.”
“At all times pertinent herein, the employer (sic) of Anco Insulation, Inc. and his immediate supervisor erected the scaffold described herein and in the manner described herein intentionally. Furthermore, said employee and his immediate supervisor knew that the consequences of the faulty erection of said scaffold were substantially certain to result because of said intentional acts.”

We disagree, and find that the allegations of fact in the plaintiff’s petition are quite similar to those in Mayer and are sufficient to state a cause of action in intentional tort. As the Mayer case is the latest utterance of the Supreme Court on the issue of injured workers’ claims in tort, this court is bound by that decision in evaluating the plaintiff’s petition.

Accordingly, the judgment appealed from is reversed and the case is remanded to the trial court for further proceedings.

REVERSED AND REMANDED.


author: CHEHARDY, Judge.

text:
    STATE of Louisiana v. Barry Lynn SMITH.
    No. 83-KA-749.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 14, 1984.

      John M. Mamoulides, Dist. Atty., 24th Judicial Dist., James Maxwell, William C. Credo, III, Asst. Dist. Attys., Gretna, for appellee.
    Martha E. Sassone, Staff Appeals Counsel, 24th Judicial Dist., Indigent Defender Bd., Gretna, for appellant.
    Before CHEHARDY, BOWES and DU-FRESNE, JJ.
   CHEHARDY, Judge.

On April 15,1983, Barry Lynn Smith was charged with two counts of violation of R.S. 14:62.2, simple burglary of an inhabited dwelling and structure. He pleaded not guilty. Trial of the matter commenced on July 19, 1983; the following day, the twelve-member jury returned a verdict of guilty as charged on both counts. The trial court ordered a pre-sentence investigation.

On August 31, 1983, the defendant was sentenced to ten years at hard labor on each count, the sentences to run consecutively, with credit for time served. Defendant appeals from these sentences.

The facts are as follows:

Shortly before 5:00 a.m. on March 31, 1983, Mr. and Mrs. Boggan were asleep in the bedroom of their home, located at 535 Victory Drive, Marrerro, Louisiana. The family dog started to bark when a man (later identified as the defendant, Barry Lynn Smith) propped a ladder against the house and crawled into the kitchen window. Mrs. Boggan heard the dog barking; believing it to be because her son was in the kitchen, she dismissed it as unimportant.

Suddenly she looked up and saw a man come around the bedroom door and look down at her. The television set was on; in its light, Mrs. Boggan could see the intruder was not her son, but a black male in a green army jacket and blue jeans.

She screamed to her husband, sleeping beside her, “Oh, my God, James, get your gun.” As Mr. Boggan reached into the dresser drawer, the man ran from the room; in his haste to escape, he passed up some money lying on a table. He fled through the kitchen door.

Smith made his way down the street to 610 Victory Drive, about four houses away. He broke into the utility room, raised the window of the first-floor bathroom, and climbed into the house. Mrs. Mildred Di-Pascal, the resident, was awake and in the process of dressing for work. She had turned on the lights in her bedroom, the second-floor bathroom and the hallway. Hearing a noise downstairs, she turned on the stairwell light. She went into the bedroom to get her robe; as she entered the hallway, she found herself face-to-face with a man wearing an army jacket and jeans.

The intruder signalled Mrs. DiPascal not to scream and grabbed her by the shoulders. As they struggled in the hall, she was pushed into the wall; defendant attempted to drag her into the bedroom. She kept trying to free herself, to alert her son sleeping in the next room. Smith grabbed her leg and she screamed. Keith DiPascal opened his door. Surprised, Smith released Mrs. DiPascal, ran down the stairs and left the house. Nothing was taken, but his slippers were found at the foot of the staircase.

Keith ran out of the house and a neighbor directed him as to Smith’s escape route. Following Smith, Keith saw him peering under a house a few blocks away. The police were alerted and several units cruised the area, looking for the perpetrator.

Smith subsequently was apprehended crawling from under a house in the immediate vicinity. He was taken to the DiPascal and Boggan homes, and both women immediately identified him as the intruder.

ASSIGNMENTS OF ERROR NOS. 1 AND 2

Defendant alleges the trial court committed reversible error in denying defense counsel’s motion to reduce the bond and that it was reversible error for the trier of fact to find the defendant guilty as charged.

Smith submitted these assignments of error to the trial court and they are in the record. However, he fails to discuss these assignments of error in his appellate brief. All specifications or assignments of error made to the courts of appeal must be briefed; the court may consider as abandoned any specification or assignment of error which has not been briefed. Uniform Rules—Courts of Appeal, Rule 2-12.4; State v. Becnel, 441 So.2d 339 (La.App. 5th Cir.1983); State v. Dirden, 430 So.2d 798 (La.App. 5th Cir.1983).

Accordingly, we consider these assignments of error to have been waived.

ASSIGNMENT OF ERROR NO. 3

Defendant alleges the trial court committed reversible error in sentencing the defendant to a term of ten years on both counts, to run consecutively, for a total of twenty years.

This error was not designated in the assignments of error presented to the trial court; it was raised only in Smith’s brief to this court.

LSA-C.Cr.P. art. 844 provides,

“The party appealing shall designate, in writing, those errors which are to be urged on appeal. This assignment of errors shall be filed within the time specified by the trial judge, but not later than five days prior to the return date. A copy of the assignment of errors shall be furnished to the trial judge by the appealing party on the date such errors are filed.
“The trial judge may submit such per curiam comments as he desires.”

In addition, LSA-C.Cr.P. art. 920 states,

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

Because defendant did not submit the issue of excessiveness of his sentence by formal assignment of error, the matter is not properly before this court for review. State v. Sonnier, 441 So.2d 359 (La.App. 5th Cir.1983).

In State v. Cox, 369 So.2d 118, 121 (La.1979), our Supreme Court stated,

“With the exception of death penalty cases (which this court must independently review in each instance for exces-siveness, La.C.Cr.P. art. 905.9), individual excessiveness of sentence may be considered on appeal only where presented by assignment of error, La.C.Cr.P. art. 920(1), formally made as required by La.C.Cr.P. art. 844.”

Therefore, pursuant to article 920, the ex-cessiveness issue need be considered only if it falls into the category of “error patent.” State v. Sonnier, supra.

Our review of the record and the proceedings indicates no patent error on the face of the record, the trial judge having enunciated properly his reasons for the sentence imposed.

For the foregoing reasons, the judgment rendered and sentence imposed by the district court are affirmed.

AFFIRMED.


text:
    STATE of Louisiana v. Norman BLANCHARD.
    No. 83-KA-744.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 14, 1984.

      John M. Mamoulides, Dist. Atty., 24th Judicial Dist., Parish of Jefferson, Stephen M. Little, William C. Credo, III, Asst. Dist. Attys., Gretna, for appellee; Louise Korns, Gretna, of counsel.
    Joseph L. Montgomery, Staff Appeals Counsel, 24th Judicial Dist., Indigent Defender Bd., Gretna, for appellant.
    Before CHEHARDY, BOWES and DU-FRESNE, JJ.
   CHEHARDY, Judge.

On February 25, 1983, Norman M. Blanchard was charged with violation of LSA-R.S. 40:967, distribution of phenme-trazine, a controlled dangerous substance. He was arraigned and pleaded not guilty. Defendant filed pretrial motions to suppress the evidence and to require the State to disclose and verify the identity of the confidential informant. These motions were denied.

On June 27,1983 the defendant withdrew his plea of not guilty and entered a plea of guilty as charged. He waived all legal delays and was sentenced on that date to a term of five years at hard labor, with credit for time served. He reserved his right to appeal the ruling on his motion to disclose the confidential informant. From this conviction and sentence defendant now appeals.

The facts are as follows:

On the afternoon of February 10, 1983, Narcotics Agent Stephen Lachute of the Jefferson Parish Sheriff’s Office met with defendant, Norman M. Blanchard. La-chute arranged to buy 200 Preludin tablets from defendant, who advised Lachute he needed to contact several of his suppliers to fill the order. At about 7:30 p.m. that night, Blanchard called a blind telephone number at the Narcotics Office. Believing the agent who answered the telephone to be Lachute, Blanchard advised him he had obtained the drugs and that Lachute should meet him at a convenience store at the foot of the Huey P. Long Bridge in about half-an-hour.

When Lachute was informed of the call, he went to the rendezvous and pulled in the parking lot. Blanchard got into Lachute’s automobile, Lachute showed him his money, and Blanchard handed Lachute a large prescription bottle containing 100 Preludin tablets. Blanchard advised him the rest of the tablets were at his girl friend’s house.

Lachute gave a signal to his partners, who then moved in and placed the defendant under arrest.

ASSIGNMENT OF ERROR NO. 1

Defendant alleges the trial court committed reversible error in failing to grant defendant’s motion to suppress evidence.

In Blanchard’s formal assignment of error presented to the trial court, this was the only error included. However, it is not discussed in the brief before this court. Because the assignment filed in the record was not briefed, we consider it to have been abandoned. Uniform Rules — Courts of Appeal, Rule 2-12.4; State v. Smith, 450 So.2d 735, rendered this date; State v. Dirden, 430 So.2d 798 (La.App. 5th Cir.1983).

ASSIGNMENT OF ERROR NO. 2

Blanchard alleges the trial court committed reversible error in failing to delineate its reasoning in imposing sentence, which sentence was nonetheless excessive.

The main thrust of defendant’s brief on this issue is that the trial court failed to comply with the sentencing guidelines of LSA-C.Cr.P. art. 894.1 in that it gave no reasons for the sentence imposed. Because the five years given is exactly half the maximum sentence applicable to the crime, Blanchard suggests the sentence is excessive, especially in view of the facts that he pleaded guilty and the crime was non-violent.

Defendant points out that during his Boykinization prior to sentencing, the trial judge stated that the maximum sentence he could impose in this case would be thirty years at hard labor. He suggests this indicates the judge was referring to the sentencing provision in R.S. 40:967(B)(1), which applies to Schedule II narcotic drugs; it allows a maximum of thirty years and a minimum of five years imprisonment at hard labor. Because phenmetrazine is a stimulant rather than a narcotic, the proper sentencing provision is R.S. 40:967(B)(3), which covers non-narcotic, non-pentazocine Schedule II drugs. Section 967(B)(3) provides a maximum of ten years, but no minimum.

In State v. Spruell, 403 So.2d 63 (La.1981), the Supreme Court held that defendant’s sentence of five years at hard labor was to be vacated due to the trial court’s mistaken view of the statutorily-authorized penalty, resulting in its unknowing imposition of a relatively stiff sentence rather than a minimal one, and because the trial court's mere mention of defendant’s criminal record was insufficient to satisfy the statutory mandate of LSA-C.Cr.P. art. 894.1.

We find the Spruell case distinguishable, however. In Spruell, the defendant apparently pleaded guilty without a definite understanding as to the sentence that would be imposed. Further, the trial court clearly indicated it was imposing what it felt was the minimum sentence allowable under R.S. 40:967. The Supreme Court stated, “Though the sentence actually imposed fell within the statutorily-prescribed range, the danger that such a mistake of law might have affected the trial court’s attempt at leniency appears significant.” 403 So.2d at 64.

Here, the plea bargain was predicated on the imposition of a five-year sentence. Further, at the time the crime was committed, Blanchard was on parole from an unspecified conviction. Part of the plea-bargain agreement was that the district attorney would not multiple-bill defendant under the Habitual Offender Law, LSA-R.S. 15:529.1. The trial court’s reference to thirty years could have been intended to encompass the sentence applicable under the Habitual Offender Law. In addition, defendant had distributed a substantial amount of phenmetrazine, 100 tablets. The trial court gave no indication it intended to be lenient.

In State v. Bell, 412 So.2d 1335 (La.1982), the court held that where a specific sentence has been agreed to as a consequence of a plea bargain, such sentence cannot be appealed as excessive and there is no need for a trial judge to give reasons for the sentence. See also, State v. Curry, 400 So.2d 614 (La.1981).

In the instant case, Blanchard was aware of the sentence to be imposed when he agreed to the plea bargain; the sentence appears in the formal document acknowledging and waiving his constitutional rights upon entering his guilty plea. We conclude there was no need for the trial court to give reasons for the sentence, nor was it excessive under the circumstances.

ASSIGNMENT OF ERROR NO. 3

Defendant alleges the trial judge erred in denying defendant’s motion for disclosure of the confidential informant’s identity, which right was reserved under State v. Crosby, 338 So.2d 584 (La.1976). (This was listed in defendant’s brief as Assignment of Error No. 1, defendant having failed to brief his original Assignment of Error No. 1.)

During the sentencing colloquy, the trial court reviewed the plea-bargain agreement with Blanchard and noted that Blanchard wished to preserve his right to appeal the adverse ruling on his motion to disclose the identity of the confidential informant. On the other hand, this assignment of error appears only in defendant’s brief before this court, and was not in his original assignment of error submitted to the trial court.

In State v. Crosby, supra, the Supreme Court held it was not barred from reviewing assignments of error that are specifically reserved at the time of guilty pleas conditioned on the accused’s right to seek review of such assignments of error. Unless both assigned and argued, however, the alleged errors are deemed waived, under usual principles of appellate review.

As this assignment of error was not properly presented for review by formal assignment of error before the trial court, the issue need not be considered by this court. State v. Crosby, supra; State v. Smith, supra; State v. Sonnier, 441 So.2d 359 (La.App. 5th Cir.1983).

For the foregoing reasons, the judgment rendered and the sentence imposed by the district court are affirmed.

AFFIRMED.


text:
    STATE of Louisiana v. John COVER.
    No. 83-KA-795.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 14, 1984.
    Writ Denied Sept. 14, 1984.

      John M. Mamoulides, Dist. Atty., 24th Judicial Dist., Parish of Jefferson, David Loeb, William C. Credo, III, Asst. Dist. Attys., Gretna, for appellee; Louise Korns, Asst. Dist. Atty., Gretna, of counsel.
    Owen J. Bordelon, Jr., Gretna, for appellant.
    Before BOUTALL, C.J., and CHEHAR-DY and DUFRESNE, JJ.
   CHEHARDY, Judge.

On March 24, .1983, John Cover pleaded guilty to possession of cocaine, a violation of R.S. 40:967. He was given a suspended sentence of five years and placed on active probation for a five-year term; several special conditions of probation were imposed. Pursuant to his reservation of rights under State v. Crosby, 338 So.2d 584 (La.1976), defendant has appealed the pretrial denial of his motion to suppress evidence.

On August 5 or 6, 1982, Jefferson Parish narcotics agents received information that two subjects, later identified as John Cover and Vicki Chaisson, were trafficking in narcotics.

The agents set up a surveillance of Chaisson’s apartment, during which agents observed traffic going back and forth to the apartment. They also observed Cover and Chaisson go to a nearby motel. According to a tip the agents had received from a confidential informant, Cover and Chaisson were there to set up a narcotics transaction. The couple merely spoke to a few people at the motel, however, and then returned to Chaisson’s apartment between 8 p.m. and 9 p.m.

About 1:30 a.m. the next morning, August 7, Chaisson exited her apartment in what Agent Valenti described as “a hurried manner” and drove off in her automobile. At least four agents tailed her. According to Agent Valenti, Chaisson “kind of rolled past” a stop sign prior to entering the Westbank Expressway from the side street. (At trial, Chaisson denied any violation, stating she would not have committed one because she knew the officers were following her and she “wasn’t that stupid.”)

At this point the officers stopped her because they were under the impression she was on her way to make another transaction. In addition, Officer Valenti testified, “[W]e had spent numerous hours out there and it was time to make [the investigation] come to a conclusion.”

After Chaisson got out of the car, both she and the vehicle were searched. The agents found nothing. Subsequently, they advised Chaisson of her Miranda rights and told her she was under investigation for narcotics violations.

The agents questioned Chaisson about John Cover, whom they suspected to be a main trafficker. She was unsure of his last name, but told the agents a man named John was staying at her apartment. The agents requested her to consent to a search of the apartment. At that point she informed the agents she had a small quantity of marijuana in her bureau drawer, for her personal use. Agent Valenti testified he advised her that, if that were the case and she was very cooperative, they would issue her a misdemeanor summons rather than formally arrest her. He said, “She was worried about her children and the idea of going down to the lockup.”

Chaisson acquiesced, signed a consent-to-search form, and took the agents back to her apartment. Once there, the agents entered the residence and proceeded to the master bedroom. Defendant Cover, nude, had just emerged from the shower. He was standing next to the bed, on which there was an open satchel containing a quantity of cocaine, 24 Quaalude tablets and assorted narcotics paraphenalia. Cover acknowledged the satchel was his and was arrested. Chaisson was issued a summons for the small quantity of marijuana found in her bureau drawer. (The charge against Chaisson was dismissed on March 24, 1983.)

On appeal, Cover raises the following general assignment of error:

The court committed reversible error in failing to grant defendant’s motion to suppress the evidence, inasmuch as said evidence was seized in violation of his rights as guaranteed by the Constitutions of the United States of America and the State of Louisiana.

In his brief, the defendant subdivided this general assignment into three specific grounds, denominating them as individual assignments of error. Because these assignments are merely an expansion of that designated in the record, rather than supplemental assignments appearing for the first time in brief, we will consider them to have been properly submitted to the trial court and therefore to be eligible for review by this court.

ASSIGNMENT OF ERROR NO. 1

Defendant alleges the court erred in denying his motion to suppress the evidence seized unlawfully because the State failed to prove the voluntariness of the “consent” given to search Chaisson’s apartment.

As noted recently by the Louisiana Supreme Court,

“ ⅝ ⅜ ⅜ One of the specifically established exceptions to the requirements of both a warrant and probable cause is a search conducted pursuant to consent. When the state seeks to rely upon consent to justify the lawfulness of a search, it has the burden of proving that the consent was given freely and voluntarily. Voluntariness is a question of fact to be determined by the trial judge under the facts and circumstances surrounding each case. The factual determinations of the trial judge are entitled to great weight on appellate review. * * * ” State v. Ossey, 446 So.2d 280, 287 (La.1984).

In Schneckloth v. Bustamonte, 412 U.S. 218 at 249, 93 S.Ct. 2041 at 2059, 36 L.Ed.2d 854 (1973), the Supreme Court defined voluntary consent as that “not the result of duress or coercion, express or implied.”

In the case before us, the trial judge determined that Chaisson’s consent was given freely and voluntarily. Cover contests this finding on two grounds: (1) the coercive circumstances surrounding Chais-son’s detention impaired her ability to make a voluntary choice; and (2) the consent was obtained as a direct result of an illegal detention.

The issue of consent turns on the credibility of the witnesses giving contradictory testimony as well as the circumstances surrounding the consent. State v. Yarbrough, 418 So.2d 503 (La.1982).

At the suppression hearing, Agents Sou-tullo and Valenti both testified that Chais-son was cooperative with them following her detention and that she voluntarily consented to the search of her apartment.

When asked whether pressure had been exerted toward Chaisson to compel her to sign the consent-to-search form, Valenti replied, “No, sir. She was kind of hyped up and she just wanted to make sure she understood it, and I read it over with her and she read it and she signed it. No problem.” Questioned about his use of “hyped up” to describe Chaisson, Valenti replied, “Like she possibly was on some narcotics or maybe alcohol or something like that.”

He denied he had promised her any leniency in exchange for signing the form. He testified, however, that when she advised them she kept a little marijuana for her personal use, he told her that if she was very cooperative they would issue her a misdemeanor summons rather than arrest her. He also stated he knew she was worried about what would happen to her children if she had to go to the jail, but said it is common practice to issue a misdemean- or summons for possession of a small amount of marijuana.

On the other hand, Chaisson testified Valenti told her that if she didn’t consent to a search of her apartment, they could take her to jail for passing a stop sign and harboring a fugitive. She said that after they told her they would take her to jail if she didn’t consent, she signed the paper.

Chaisson described herself as “nervous” and “upset.” She said,

“[Tjhey promised me this, they promised—they said that I would not get nothing. I would not go to jail. I would not, you know, get convicted or anything if they would just let me go and search my apartment, if I’d let them go and search my apartment. I had nothing to worry about.”

She conceded, however, that after she signed the consent form, one of the agents asked if she was sure she wanted to sign. She stated she remarked at the time, “Yeah, I’ll sign it because I don’t want to go to jail.”

Although the circumstances surrounding the arrest may appear coercive, Chaisson’s testimony indicates her concern was directed toward the possibility she might be jailed, rather than that she felt threatened by her physical surroundings.

We conclude Chaisson decided it was in her best interest to cooperate with the officers. The narcotics agents were obviously interested only in John Cover and were willing to treat her leniently in order to secure consent to search her residence. Her cooperation after she signed the consent form indicates she voluntarily agreed to the search in anticipation of procuring the lenient treatment she ultimately received.

In any event, where there is contradictory testimony at trial, the trial judge’s evaluations of credibility are entitled to great weight. State v. MacDonald, 390 So.2d 1276 (La.1980).

We find no merit to this assignment of error.

ASSIGNMENT OF ERROR NO. 2

Defendant alleges the court erred in denying his motion to suppress the evidence because the State failed to prove reasonable suspicion to justify an investigatory stop of Vicki Chaisson, which resulted in the alleged “consent” to search her apartment.

Specifically, Cover contends that an investigatory stop is not justified unless officers can point to “specific articulable facts” that create reasonable suspicion. In the case at bar, there was a confidential informant’s tip that led to an investigation of Cover and Chaisson for trafficking in cocaine. Cover argues the only evidence by the State that might be construed as tending to show reasonable suspicion was Agent Soutullo’s statement that his investigation led to the identification of Cover and Chaisson as the persons the informant was talking about.

In State v. Arceneaux, 425 So.2d 740 (La.1983), the Supreme Court held that reasonable cause for warrantless arrest exists when the facts and circumstances known to the arresting officer and of which he has reasonably trustworthy information are sufficient to justify a man of ordinary caution in believing that the person to be arrested has committed a crime. The court went on to say that probable or reasonable cause for warrantless arrest may be judged by the probabilities and practical considerations of everyday life on which average men, and particularly average police officers, can be expected to act; compliance with those standards is, in the first instance, a substantive determination to be made by the trial judge from the facts and circumstances.

Here, the surveilling agents had observed “traffic” going back and forth to the apartment. They also observed Cover and Chaisson go to a motel, speak to a few people, and leave. Several hours later, in the middle of the night, they observed Chaisson leave her apartment hurriedly and drive off in her automobile. The officers testified they were under the impression she was on her way to make another transaction. Her behavior was “hyped up.”

We conclude, as the trial judge obviously did, that these facts constitute reasonable suspicion to stop Chaisson. Based on the probabilities and practical considerations of everyday life on which “average police officers” (such as these narcotics agents) can be expected to act, and the agents’ implied prior experience in observing dealers in illegal drugs, we conclude they had reasonable suspicion to justify an investigatory stop of Chaisson.

ASSIGNMENT OF ERROR NO. 3

Defendant alleges the trial court erred in denying his motion to suppress the' evidence seized without a search warrant, because even if the stop of Chaisson was legal and her consent voluntarily given, Chaisson did not have the ability to waive Cover’s Fourth Amendment rights; thus the search of the bedroom where defendant was staying violated his right to privacy, of which he had a reasonable expectation.

By this assignment Cover asserts that his privacy interest in the master bedroom of Chaisson’s apartment could not be waived by his host.

In United States v. Matlock, 415 U.S. 164, 172, 94 S.Ct. 988, 993, 39 L.Ed.2d 242 (1974), the court summarized the law applicable to this question:

“ * * * These cases at least make clear that when the prosecution seeks to justify a warrantless search by proof of voluntary consent, it is not limited to proof that consent was given by the defendant, but may show that permission to search was obtained from a third party who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected. * * ” (Footnote omitted.)

In State v. Abram, 353 So.2d 1019 (La.1977), cert. den. 441 U.S. 934, 99 S.Ct. 2058, 60 L.Ed.2d 663, the court noted that a person’s expectation of privacy is severely limited by the joint dominion or authority over the property.

An exception to this general rule occurs when there are within a residence areas or zones for the exclusive use of one tenant or the other. In such a situation, there is no “common authority” which would justify a search based on consent from the non-occupying party. This premise is true in a host/guest relationship— i.e., the host could not consent to a search of a room set aside exclusively for the use of a guest.

A second exception in the host/guest context would be articles or belongings which would be most commonly deserving of the “high expectation of privacy” label. Illustrative of this exception is United States v. Poole, 307 F.Supp. 1185 (D.C.La.1969). In that case, police searched Poole’s closed overnight bag, which had been left in a friend’s hall closet, upon receiving the consent of Poole’s host. The court concluded,

“The rule which emerges is that a defendant may object to a search consented to by another where the defendant has exclusive control over a part of the premises searched or over an ‘effect’ on the premises which is itself capable of being (and is) ‘searched.’ ‘Enclosed spaces’ over which a non-consenting party has a right to exclude others, whether rooms .or effects, are protected. * * * ” 307 F.Supp. at 1189.

The instant case manifests no circumstances that would serve to invoke the exceptions to the general rule. The master bedroom of the apartment was not set aside for the exclusive use of Cover since Chaisson’s belongings were still in the room. Nor were the contents of his satchel closed against visual intrusion. Accordingly, we conclude seizure of the evidence was valid.

For the foregoing reasons, we affirm the judgment of the district court.

AFFIRMED.


text:
    MULLER ELECTRIC CORPORATION v. E.I. DUPONT DE NEMOURS & CO., INC., and Kendall Construction Co., Inc.
    No. 83-CA-822.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 14, 1984.

      Jerome P. Halford, New Orleans, for plaintiff-appellant.
    Reuter, Reuter, Reuter & Pizza, Arthur C. Reuter, Jr., New Orleans, for Kendall Const. Co., Inc., defendant-appellee.
    Before BOUTALL, C.J., and CHEHAR-DY and DUFRESNE, JJ.
   CHEHARDY, Judge.

Plaintiff, Muller Electric Corporation, instituted this suit on a contract and to enforce a materialman’s lien against Kendall Construction Co., Inc., and E.I. Dupont De Nemours & Co., Inc.

The record reflects the following facts:

On February 11, 1980, Dupont entered into a contract with Kendall Construction, the primary contractor, to build a laboratory and storage plant in St. John the Baptist Parish. Kendall in turn contracted with Muller Electric on June 9, 1980 to perform the electrical work on the project. Neither contract was recorded in the parish records.

When a large portion of the bill remained unpaid after the work was completed in 1982, plaintiff filed its lien and instituted this suit. Subsequently a settlement was reached whereby Dupont was dismissed from the suit after it paid plaintiff the retainage of $25,002.03, and plaintiff reserved its right to proceed against Kendall for the matters still in dispute. The contested items concern two claims for extras in the sum of $4,473 and $376, clean up charges of $425.96, and interest and costs.

Following trial, judgment was rendered in favor of plaintiff for the sum of $376 on one invoice, $156 for recordation and filing of the materialman’s lien, and “interest on all amounts paid, both pursuant to the compromise heretofore entered into between the parties, and amounts awarded herein.”

Judgment was rendered in favor of Kendall Construction Co., Inc., in the sum of $425.96 allowed as a chargeback against plaintiff, and plaintiff’s claim against defendant for $4,473 under Invoice No. 8420 was dismissed. Each party was ordered to bear its own cost.

Plaintiff has appealed and defendant has answered the appeal.

In this court plaintiff-appellant contends the trial court erred in (1) disallowing the # 4,473 claim; (2) allowing the chargeback of $425.96; and (3) failing to allow it to recover court costs.

Relative to appellant’s first contention, the bill for $4,473 represents the cost of labor and material for furnishing and installing control wiring for 26 exhaust fans and four air handling units, including connections, firestats, solenoid valves and stop/start push buttons. (A firestat is a devise enabling a unit to cut off the motor in the event of fire.)

Plaintiff contends this was extra work not contemplated by the contract, plans or specifications. Defendant contends it was part of plaintiffs contractual obligation.

From the documentary evidence and the testimony of the witnesses it is clear that a problem existed in interpretation of the specifications prior to the time plaintiff submitted its bid.

John Tauzy, plaintiffs electrical estimator, prepared the original bid. He reviewed all of the specifications and noted a conflict in the section dealing with controls.

The electrical specifications called for some work relative to exhaust fans under the supervision of the mechanical or control contractor, and the mechanical specifications defined the control work as part of the mechanical contractor’s responsibility.

Tauzy called the electrical engineer employed by the architect and discussed the apparent conflict with him. After this conversation he concluded it was not part of the electrical contractor’s responsibility and submitted his bid accordingly.

While the work was in progress Tauzy received a letter from Emile Babst & Co., Inc., the industrial and mechanical contractor, indicating their control contractor, Johnson Controls, was questioning the firestat installation on the equipment fans. Johnson proposed to furnish the firestats to Muller, with Muller to provide the installation and wiring.

Tauzy replied by phone and letter that the specifications called for the electrical contractor to connect the firestats for single phase fans if the fans were associated with the lab hoods or benches and not if the firestats were associated with other lab equipment.

Tauzy then wrote to Mr. Charles Zammit at Kendall Construction, enclosing Babst’s letter, stating plaintiff’s position with reference to the controls — namely that Muller would connect the firestats to the single phase exhaust fans and that all other control wiring was the responsibility of the control contractor.

John Baxter, assistant general superintendent of Kendall Corporation, answered Tauzy’s letter indicating the power wiring was plaintiff’s responsibility and ordered it to proceed with the work immediately to maintain job progress.'

Baxter testified the specifications were ambiguous and that they did not clearly provide what areas the firestats, solenoid and valves were part of. He noted it was specified everywhere in the control documents, but he decided it was part of the electrical contract because the plans show it in the power wiring and not in the control wiring. He authorized Muller to provide the power to the fan motors, keep records, and submit a claim.

Tauzy testified the additional work was done by Muller and daily time and material records were kept at Baxter’s direction, and each record was signed by a representative of Kendall Construction Co. Tauzy stated it is not customary to keep time and material sheets for work clearly covered under a contract, nor is it customary or necessary for the contractor to sign time or material sheets for work done on the job. Baxter acknowledged the request to keep time and material sheets, but indicated it was only for the purpose of considering the claim.

If we were to adopt plaintiff’s position the invoice covers extra work not called for under the contract. If we were to adopt Kendall’s interpretation, the work performed was provided for by the contract.

With respect to the interpretation of agreements our Civil Code provides:

“When the intent of the parties is doubtful, the construction put upon it, by the manner in which it has been executed by both, or by one with the express or implied assent of the other, furnishes a rule for its interpretation.” LSA-C.C. art. 1956.

Since Baxter acknowledged the contract was ambiguous and accurate records were kept to verify the work performed, we conclude Kendall is responsible for payment for the extra work involved, and we will amend the judgment accordingly.

Relative to appellant’s second contention, the contract provides for daily clean-up work.

Tauzy testified whenever there was trash on the job the foreman requested a truck to take trash to the dump. The trash consisted principally of boxes for lighting fixtures, receptacles, switches and extra pipe cut off and not used. Tauzy visited the job site on four occasions.

Mr. Muller, vice president of Muller Electric, handled all of the billing. He received the bill for clean-up work in April 1980 and immediately called Michael Gurtler, president of Kendall Corporation. Gurtler told him the bill was being sent to all subcontractors in case they did not do their own clean up, and advised him to ignore the bill.

Muller received no other bill, but following suit Kendall Construction deducted $425.96 for clean-up charges from payment of another bill paid to Muller Electric for work performed. Mr. Muller had petty cash receipts showing the times plaintiffs trash was hauled to the city of Kenner land fill from December 3, 1980 through May 21, 1981.

Mr. Baxter, the only witness to testify on behalf of Kendall, stated plaintiff was charged for trash hauling because its field superintendent refused to maintain the cleanliness standards demanded by the safety department, OSHA or plant safety regulations which are extraordinarily strict requiring daily clean up. He was on the job daily.

Baxter knew Gurtler had told Mr. Muller to forget the bill, because they were satisfied with the electrical work, but Baxter claims the charge was simply deferred until later. He testified the bill of $425.96 was for 10 hours of work on April 8 and 9, 1981.

We find insufficient evidence in the record to support a charge of over $400.00 for a few hours of work principally ⅛ volved with removing empty boxes, and are therefore of the opinion defendant has not borne the burden of proof that it was entitled to this chargeback.

Relative to plaintiffs final contention, the trial court ordered each party to bear its own costs. Plaintiff-appellant contends equity should allow it to recover out-of-pocket court costs.

LSA-C.C.P. art. 1920 provides:

“Unless the judgment provides otherwise, costs shall be paid by the party cast, and may be taxed by a rule to show cause.
“Except as otherwise provided by law, the court may render judgment for costs, or any part thereof, against any party, as it may consider equitable.”

As stated above, the basic rule is that all costs, both the prevailing side’s and his or her own, are to be paid by the party cast although the court may make an “equitable” different provision for costs. That limit denies to a trial judge the power either to deny his or her own costs to a prevailing party or to assess another party’s costs against a prevailing party unless some circumstances present in the ease justify doing so. See Bonfanti Marine, Inc. v. State, 444 So.2d 218 (La.App. 1st Cir.1983); Bowman v. New Orleans Public Service Inc., 410 So.2d 270 (La.App. 4th Cir.1982).

The underlying principle of the code and the jurisprudence is that the party whose behavior unjustifiably causes costs to be incurred ought to pay them.

We agree with plaintiff-appellant’s position. It is entitled to be paid for all costs in these proceedings.

Defendant has answered the appeal claiming error (1) in awarding interest on the compromise agreement, and (2) in the trial court award of $376 to plaintiff on one of the invoices.

Defendant asserts that the subcontract agreement provides that Muller was not to receive its retainage until those funds were actually received from the owner (Dupont).

The compromise agreement sets forth that Muller’s retainage was to be paid to it contemporaneously with Kendall’s receipt of the retainage from the owner. As specifically noted under the terms of the receipt and release agreement, payment was made by joint check from the owner, endorsed to the order of Muller Electric Corporation. Since the retainage payment was made to plaintiff at the time provided for under the contract, we agree with defendant’s position on this issue only insofar as it refers to interest on the retainage funds.

We do not agree with their second contention.

Plaintiff charged defendant $376 for rerouting a conduit wire which it had already installed, because the missile deflector was much larger than that shown on the plans. When the deflector arrived it would not fit into the room, so the conduit had to be rerouted through no fault of plaintiff. It is entitled to be paid for that work.

For the reasons assigned the judgment appealed from is reversed insofar as it dismisses the claim against Muller Electric Corporation represented by Invoice No. 8420, and it is now ordered that there be judgment in favor of Muller Electric Corporation and against Kendall Construction Co., Inc., on this invoice for the sum of $4,473.00.

The judgment is further reversed insofar as it allows a chargeback against Miller Electric Corporation by Kendall Construction Co., Inc., in the amount of $425.96 for clean-up expenses.

The judgment is reversed insofar as it orders each party to bear its own costs, and it is now ordered that defendant pay all costs of these proceedings in both courts.

The judgment is amended to award Muller Electric Corporation interest only on all moneys paid or awarded herein, other than that paid pursuant to the compromise agreement on the retainage.

In all other respects the judgment appealed from is affirmed.

AMENDED AND AFFIRMED IN PART; REVERSED IN PART.


text:
    Edward HARRIS, Jr. v. JOHNS-MANVILLE SALES CORPORATION, a/k/a Johns-Manville Products Corporation.
    No. 83-CA-856.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 14, 1984.

      Gertler & Gertler, John B. Perry, New Orleans, for plaintiff-appellant.
    Jones, Walker, Waechter, Poitevent, Carrere & Denegre, Joseph J. Lowenthal, Jr., New Orleans, for defendant-appellee.
    Before CHEHARDY, BOWES and GRIS-BAUM, JJ.
   CHEHARDY, Judge.

Plaintiff, Edward Harris, Jr., instituted this suit for total and permanent disability benefits and penalties and attorney’s fees, under the provisions of LSA-R.S. 23:1031.-1, the occupational disease section of the Workmen’s Compensation Act. Named defendant was his former employer Johns-Manville Sales Corporation.

Following trial on the merits, judgment was rendered in favor of defendant dismissing plaintiff’s suit with prejudice. Plaintiff has appealed.

The issues presented for our determination are whether or not plaintiff has carried his burden of proof in establishing that he contracted asbestosis which rendered him totally and permanently disabled as a result of his employment with defendant, or, alternatively, whether he is entitled to judgment for loss of a physical function. We must also determine whether the trial court erred in dismissing plaintiff’s suit with prejudice.

As stated in this court in Laurendine v. Fischbach & Moore, Inc., 398 So.2d 1220, 1221 (La.App. 4th Cir.1981):

“The plaintiff in a workman’s compensation action based on occupational disease must establish by a preponderance of the evidence that there is a disability which is related to the employment related disease. LaCoste v. J. Ray McDermott & Co., 250 La. 43, 193 So.2d 779 (1967). Similarly, the plaintiff must show that he contracted the disease during the course of his employment and that the disease was the result of the nature of the work performed. Bates v. Bituminous Casualty Corp., 266 So.2d 556 (La.App. 3d Cir.1972). It is sufficient that he establish the cause of his disability by a reasonable probability. Bryant v. Magnolia Garment Co., Inc., 307 So.2d 395 (La.App. 2d Cir.1975).”

The record consists of the testimony of plaintiff and four expert witnesses: Dr. Morton Brown and Dr. Michael LeBrun, specialists in pulmonary diseases and internal medicine, called as experts by plaintiff; Dr. Robert Jones, a pulmonary specialist, and Dr. Richard Datzman, a radiologist, testified on behalf of the defendant.

Plaintiff testified he was employed as a common laborer by defendant for six months in 1963. He worked in the pipe plant unloading bags of asbestos from box cars. The plant was dirty and dusty, and the bags often broke spilling asbestos on the floor.

Plaintiff returned to work in 1964, first in the pipe plant, and then in the grinding room regrinding pipes made of asbestos, sand and cement. The employees were provided with respirators because the area was dirty and dusty. However the rule about wearing the respirator was not enforced. Plaintiff worked for defendant in a variety of jobs, including making epoxy and painting the ends of asbestos pipes, working in the shingle department and driving a paver truck (similar to a power lift) in defendant’s yard. He was laid off in 1970, and the following day began to work as a roustabout and compressor operator for Texaco.

In 1973 he left Texaco to operate his own dump truck. The business prospered and he now owns two trucks and manages and supervises two employees.

Plaintiff claims he began to experience shortness of breath and loss of energy in 1977, which adversely affected his lifestyle. He formerly enjoyed active participation in basketball and baseball, but is unable to do so now. He did not seek medical attention until 1980 when he consulted attorneys who, aware of his prior employment with defendant and involvement with 'asbestos, referred him to Dr. Brown.

Dr. Brown testified he first saw Harris on May 29, 1980. Plaintiff complained of shortness of breath on exertion. He described his work for seven years with defendant and was concerned about the symptoms and their relationship to that employment. Brown referred plaintiff to Jo Ellen Smith Hospital for a complete evaluation.

A pulmonary function test was taken at the hospital. Two x rays of the chest were reviewed, interpreted and evaluated by Dr. LeBrun. These x rays had been lost or misplaced by Dr. Brown’s employees and were not available for interpretation at the time of trial.

Following the hospital work-up Dr. Brown concluded the x' ray and EPA view were almost normal except for thickening at both apexes of the lungs. The oblique views showed definite marked thickening of the pleural surfaces over both lungs and throughout the entire lining. Dr. Brown found this characteristic of exposure to asbestos which would be evidence of injury to the lungs by the asbestos fibers. The pulmonary function studies revealed a mild reduction in the vital capacity with no evidence of obstruction.

Plaintiff was discharged on June 29 with a diagnosis of pleural thickening of the lungs due to asbestos. He was also treated for a urinary track infection and thickening of the heart muscle. He was to return to Dr. Brown in one month for further evaluation and discussion. He did not return until February 19, 1981, at which time another x ray was made and a breathing test was given.

Plaintiff was to come back the following day, but did not return until July 11, 1982. At that time another x ray was taken, and a pulmonary function test was made. Then, for the first time Dr. Brown discussed his diagnosis of asbestosis with plaintiff.

The doctor testified the amount of damage, in view of the seven year’s exposure, was relatively mild but there was a definite injury and plaintiff therefore had other potential risks, such as a progression of the disease, cancer of the lung, cancer of the pleura and other sites, which is very common among asbestos workers. No treatment was recommended at any of Dr. Brown’s four evaluations over the two-year period.

Dr. LeBrun testified he was unacquainted with Mr. Harris, and had neither seen nor examined him. His office performed a pulmonary function test and a blood gas analysis on June 30, 1980 at Jo Ellen Smith Hospital and the doctor simply evaluated those tests.

He testified that the pulmonary function test indicated plaintiff’s total lung capacity was 75% of its predicted capacity. This can be indicative of lung disease. Harris tested lower than normal in other test areas, but this was suggestive of restrictive processes such as interstitial fibrosis. The blood gas analysis test was normal.

Dr. LeBrun confirmed that the tests are not diagnostic of anything, but simply an indication as to possible problems, “in other words you could have 20 diseases with the same results.”

Dr. LeBrun stated he had no way of knowing if plaintiff was suffering from asbestosis, and the interstitial fibrosis he noted was just a suggestion and could easily have been due to other causes. He “absolutely” denied saying plaintiff had asbestosis.

Dr. Jones, defendant’s pulmonary expert, evaluated Harris on August 16, 1982. Plaintiff complained of shortness of breath. At that time, chest x rays taken on that date at Tulane Medical Center showed some evidence of calcium deposits and pleural thickening. The doctor stated the results were normal. In his opinion the x rays presented no evidence of dust disease. He concluded plaintiff was not suffering from interstitial fibrosis and that his lungs in no way restricted him from working.

Dr. Jones had taken an in-depth history from plaintiff and was aware of the duties of his job with defendant and Texaco as well as plaintiffs detailed medical history. He looked for abnormalities which would be relevant to possible asbestos exposure, silica exposure or the effects of dust in general, but found nothing. An electrocar-diagram and a lung function test were also performed, but plaintiffs cooperation was poor.

In Dr. Jones’ opinion there was no evidence of a dust disease of the lungs. The lung function was apparently normal and there was no evidence of significant respiratory symptoms. He concluded plaintiff was not suffering from asbestosis.

Dr. Datzman reviewed plaintiff’s 1980 x rays at Jo Ellen Smith Hospital. He found no radiographic evidence of asbestosis nor evidence of any scarring or abnormalities of the lung. He also reviewed x rays from Tulane Medical Center and came to the same conclusion. He found no evidence of pleural thickening in any of the x rays.

After a careful review of the record, we find there has been no showing of any manifest error committed by the trial judge in determining that plaintiff has failed to carry his burden of proof that he is totally and permanently disabled, or that plaintiff suffers from any disability at this time associated with impairment of a useful physical function. Therefore the trial court acted properly in dismissing plaintiff’s claim.

Inasmuch as our Supreme Court recognizes asbestosis is a progressive disease, we do agree with plaintiff’s contention that his suit should have been dismissed without prejudice and we will amend the judgment accordingly. See Chivoletto v. Johns-Manville Products Corp., 330 So.2d 295 (La.1976), and LaCoste v. J. Ray McDermott & Co., 250 La. 43, 193 So.2d 779 (1967).

For the reasons assigned the judgment appealed from is amended so as to dismiss plaintiff’s claim without prejudice. In all other respects the judgment appealed from is affirmed.

AMENDED AND AFFIRMED.


text:
    RIVERLANDS NATIONAL BANK v. Wade WILLIAMS.
    No. 84-CA-140.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 14, 1984.

      Becnel, Landry & Becnel, Mary Hotard Becnel, LaPlace, for plaintiff-appellee.
    Robert R. Faucheux, Jr., Reserve, for defendant-appellant.
    Before CHEHARDY, KLIEBERT and BOWES, JJ.
   CHEHARDY, Judge.

On March 19, 1984, ex proprio motu, we ordered the appellant, Wade Williams, to show cause why his appeal should not be dismissed, on the following grounds:

There was no hearing on the merits and the overruling of the exceptions may not constitute an appealable judgment where there has been no showing of irreparable injury.

In this suit by Riverlands National Bank for a deficiency judgment after seizure and sale of movable property subject to a chattel mortgage, defendant Wade Williams filed an exception of nonjoinder of an indispensable party, his former wife. He alleged Linda Marie Williams was an indispensable party because at the time the promissory note and chattel mortgage were signed, a community of acquets and gains existed between Wade Williams and Linda Marie Williams. Accordingly, Williams alleged, the debt owed to plaintiff bank was a community debt, making Linda Marie Williams equally liable with Wade Williams for it. Defendant alleged further that Linda Marie Williams’ signature appeared on the mortgage act along with that of Wade Williams, making her equally liable with defendant.

At the hearing on the exception, the trial court ruled that since Linda Marie Williams signed neither the note nor the chattel mortgage with respect to the transaction, defendant’s argument that she is an indispensable party was without merit. Accordingly, the court overruled the exception. Wade Williams has appealed.

A judgment that does not determine the merits but only preliminary matters in the course of the action is an interlocutory judgment. LSA-C.C.P. art. 1841. An appeal may be taken from a final judgment and from an interlocutory judgment that may cause irreparable injury. LSA-C. C.P. art. 2083.

A judgment overruling an exception of nonjoinder of an indispensable party is an interlocutory judgment. Therefore, appellant must show irreparable injury to be entitled to an appeal before determination of the merits of the suit. The classification of indispensable party may be applied to a party only after the facts clearly establish that no complete and equitable adjudication of the controversy can be made in his or her absence. LSA-C.C.P. art. 641; State, Dept. of Hwys. v. Lamar Adv. Co. of La., Inc., 279 So.2d 671 (La.1973).

Defendant presented no evidence in support of his exception at the hearing thereon. LSA-C.C. art. 2357 provides that an obligation incurred by a spouse before or during the community property regime may be satisfied after termination of the regime from the property of the former community and from the separate property of the spouse who incurred the obligation. LSA-C.C. art. 2358 states that upon termination of a community property regime, a spouse may have against the other spouse a claim for reimbursement, subject to other codal provisions. Appellant has made no showing that his rights against his former wife for reimbursement or her rights to resist such a demand would be affected by failure to join her as a party defendant herein.

For the foregoing reasons, we conclude there is no showing of irreparable injury. Accordingly, the appeal is dismissed; the case is remanded to the district court for further proceedings.

APPEAL DISMISSED; CASE REMANDED.


author: KLIEBERT, Judge.

text:
    Christine Gandolfi, Wife of Warren M. SIMON, Jr. v. Warren M. SIMON, Jr.
    No. 83-CA-770.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 14, 1984.

      Paul S. Fiasconaro, Fiasconardo & Fias-conaro, New Orleans, for plaintiff-appellee.
    Birch P. Me Donough, Me Donough & Me Donough, New Orleans, Michael L. Glass, Provosty, Sadley & deLaunay, Alexandria, for defendant-appellant.
    Before BOUTALL, KLIEBERT and DU-FRESNE, JJ.
   KLIEBERT, Judge.

Judgment was rendered on May 27, 1983, signed on June 1, 1983 and amended on June 7, 1983, ordering Warren Simon, Jr., the father, to pay to Christine Gandolfi Simon, the mother, $750.00 per month for the support of Stephanie Lynn Simon and James Warren Simon, the minor preschool children of the marriage. Additionally, the child support payments and the visitation rights were suspended for the month of June 1983 by the judgment rendered on May 27, 1983.

The father brought this devolutive appeal, contending the trial judge erred in setting the child support because he failed to (1) consider the income and circumstances of the wife; (2) require the wife to produce evidence as to the actual expenses attributable to the support of the children, and (3) consider the husband’s lack of income and large amount of debts. The mother answered the appeal contending the award was inadequate and the judge erred in suspending the June 1983 payment. We amend the judgment and, as amended, affirm it.

The record shows one of several rules filed for specific visitation rights was tried on the same day as the rule for child support. It is apparent from the record there was considerable animosity between the parents over visitation rights at the time the child support rule was heard.

The evidence submitted at the hearing on April 1, 1983 outlines the respective incomes of the parties. The father is a practicing attorney who, for federal income tax purposes, showed a gross income of $64,-117.00 for 1980 and $61,554.00 for 1982, with a net income of $561.00 for 1980 and $3,523.00 for 1981. His business operating statement for the year 1982 shows a gross income of $67,323.96 and a net loss of $7,226.00 and a gross income of $19,855.21 for the first three months of 1983. As to the future, he contends the loss of a major client dims his prospects of future income from the practice of law.

Aside from his law practice, the father owns an undivided one-half interest, along with his first wife, in a home located at 102 Mulberry Drive, Metairie, La., which at the time of the hearing was being offered for sale for $316,000.00. The building was encumbered by a $127,000.00 first mortgage and a $50,000.00 mortgage securing funds owed to his first wife. He also owns a one-half interest in a house at 4700 Chateau Drive, Metairie, La., which is the former residence of he and his second wife. The father is also the payee under an installment sales agreement of his interest in a dairy company. The agreement calls for equal installment payments of $23,706.90 annually between February 1, 1981 and February 1, 1985 with simple interest on the unpaid installments at the rate of 9% per annum. This amounted to $8,233.00 in 1981 and declines each year as the installments are paid. Additionally, the father has a disputed contingent interest in the stock of Iberia Milk Company which is currently being held by his parents. An approximate value of $250,000.00 on the stocks was reflected on a financial statement prepared by the appellant.

The mother is a legal secretary earning $1,250.00 per month before taxes, with a take home pay of $1,007.34. The record indicates the mother has no assets except for her interest in the former family home at Chateau Drive.

When both parties are employed, their comparative salaries and responsibilities are properly utilized in determining the proportion each will bear in supporting the children of the marriage. Ducote v. Ducote, 339 So.2d 835 (La.1976); Dufrene v. Dufrene, 430 So.2d 759 (La.App. 5th Cir.1983). Likewise, the assets of the respective spouses and the reasonableness of their expenses are to be considered in determining the extent of their obligations to their minor children. Kellogg v. Kellogg, 375 So.2d 200 (La.App. 2nd Cir.1979); Casselmann v. Zaunbrecher, 430 So.2d 293 (La.App. 3rd Cir.1983).

In the instant case, the mother earns a little over $1,000.00 per month as a full time legal secretary while the husband' is entitled to receive installment payments of $23,706.98 a year plus interest due thereon thru 1985, while maintaining a private practice of law.

According to a list of expenses totalling $2,613.67, the mother’s major expenses were $600.00 for rent and $500.00 for food. At the time of the hearing, she was not expending all of the money shown on the list but rather was establishing what her living expenses would be were she to move away from her grandmother’s house and establish a residence of her own. We cannot say these expenses are on their face unreasonable.

The husband shows expenses of $3,851.51 attributable to other than his first family and expenses of $1,426.49 attributable to his first marriage. A large part of the expenses are due to mortgage payments, maintenance and insurance payments on real estate- which he owns in indivisión. The second largest category of expenses he lists are mortgage and insurance payments on automobiles and a boat. It is apparent that it is within the power of the father to reduce his expenses and/or liquidate his assets if his cash flow is not sufficient to meet his support obligations. Vorisek v. Vorisek, 423 So.2d 758 (La.App. 4th Cir.1982); Kellogg v. Kellogg, supra.

While we cannot apply a mathematical formula to determine a dollar value each should contribute, we should and do consider the totality of the relevant circumstances. Petrich v. Petrich, 430 So.2d 829 (La.App. 5th Cir.1983); Prudhomme v. Prudhomme, 381 So.2d 906 (La.App. 3rd Cir.1980). .

Based on the record before us, we cannot say the trial judge abused his wide discretion in setting the support amount at $750.00 per month. Absent an abuse of discretion, the lower court’s determination of child support should not be disturbed. Kellogg v. Kellogg, supra; Dufrene v. Dufrene, supra; Pittman v. Pittman, 418 So.2d 23 (La.App. 1st Cir.1982).

The trial judge, however, did abuse his discretion in ordering the June 1983 support payment suspended. Although we are in full sympathy with his frustrations over the refusal of the parents to reconcile their differences in the interest of the children, he exceeded his authority in seeking to penalize the mother by suspending the children’s support payment for the month of June 1983.

Accordingly, the judgment of the trial court is amended to reverse the portion thereof suspending the father’s obligation to make the children’s support payment of $750.00 due in June 1983 and, as amended, is affirmed. All costs of the appeal are to be borne by the father.

AMENDED AND, AS AMENDED, AFFIRMED.


text:
    Annie M. Price, Widow of Willie PRICE v. JOHNS-MANVILLE SALES CORPORATION a/k/a Johns-Manville Products Corporation.
    No. 83-CA-852.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 14, 1984.
    Judith A. Defraites, Gertler & Gertler, New .Orleans, for plaintiff-appellant.
    Thomas M. Nosewicz, Jones, Walker, Waechter, Poitevent, Carrere & Denegre, New Orleans, for defendant-appellee.
    Before BOUTALL, KLIEBERT and DU-FRESNE, JJ.
   KLIEBERT, Judge.

Annie Price, the widow of Willie Price, sued her husband’s employer, Johns-Man-ville Sales Corporation, the defendant, for compensation benefits under the provisions of LSA-R.S. 23:1231. The defendant filed a motion for summary judgment. The motion was grounded in the contention Willie Price had previously entered into a settlement agreement which compromised all rights under the Louisiana Workmen’s Compensation Act. The trial judge granted the motion and dismissed plaintiff’s suit. She brought this devolutive appeal. We affirm.

Willie Price was diagnosed as suffering from an occupational lung disease on July 8, 1980. The defendant contends plaintiff’s husband compromised and settled his cause of action for disability benefits in June of 1981. He then died on September 1, 1981 as a direct consequence of his occupational disease.

Although the motion for summary judgment alleges the petition for authority to compromise and the judgment of compromise of the compensation claim are attached to the motion for summary judgment, we do not find these in the record. However, plaintiff agrees a compromise settlement of all of the decedent’s workmen’s compensation claim was effected. Further, both parties liberally quote from the petition for authority to compromise and from the judgment compromising the claim and neither disputes the accuracy of the quotations. Therefore, in the interest of judicial economy, rather than remanding the case to supplement the record, we will consider the merits of the appeal.

The issue presented is identical to that presented in Condoll v. Johns-Manville Sale Corporation, La.App., 448 So.2d 169, opinion rendered on March 13, 1984; i.e., whether a compromised settlement of an injured worker’s disability claim settles the dependent spouse’s claim for death benefits under LSA-R.S. 23:1061, even though the dependent spouse was not a party to the injured spouse’s disability settlement and received no consideration whatsoever.

In the Condoll case, this court concluded the purpose of LSA-R.S. 23:1231 was to provide for death benefits to the dependents of an injured employee where the injured employee died prior to any compromise or adjudication of the compensation claim. The dependent’s right is to have the employer continue making to him the compensation being paid to the injured employee at the time of his death rather than a right to establish new compensation benefits for the dependent. Therefore, although the dependent’s right to have the compensation benefits continue is separate from the employee’s right to establish compensation benefits for an injury, the compromise of the employee’s claim forecloses future benefits to the dependent. Hence, following a settlement, there is no longer a right to compensation benefits by either the employee or the dependent unless the compromise judgment can be set aside for fraud, misrepresentation or failure to comply with the compromise procedures of the act. See Smith v. Cajun Insulation, Inc., 392 So.2d 398 (La.1980).

Accordingly, the judgment of the trial court is affirmed. Costs of the appeal are to be borne by the appellant.

AFFIRMED.


text:
    Simon TROXCLAIR et al. v. PARISH OF ST. CHARLES and Integrity Insurance Company.
    No. 83-CA-788.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 14, 1984.
    Rehearing Denied June 18, 1984.

      Mark B. Meyers, Phelps, Dunbar, Marks, Claverie & Sims, New Orleans, for plaintiff s-appellants.
    B.R. Malbrough, Renaudin, Casey & Holmes, New Orleans, for defendants-ap-pellees.
    Before KLIEBERT, GAUDIN and MARCEL, JJ.
   CLEVELAND J. MARCEL, Sr., Judge Pro Tempore.

This appeal originates in the Twenty-Ninth Judicial District Court, Parish of St. Charles, Louisiana, wherein the Honorable Joel T. Chaisson rendered judgment granting defendants’ rule to show cause why settlement should not be enforced. Such judgment further ordered plaintiffs’ trespass suit dismissed and defendants’ draft placed in the registry of the court subject to those endorsements already placed on it.

On June 15, 1982, plaintiffs filed suit against the parish of St. Charles and Integrity Insurance Company alleging trespass, property damage and mental anguish. After numerous delays, trial of the matter was finally scheduled for May 9, 1983. According to the transcript, present that date was then counsel for plaintiffs, Mr. Jules Carville, and defense counsel, Messrs. B.R. Malbrough and William V. Renaudin, Jr. However, after a brief in-chambers discussion, the matter was not tried but was continued.

Subsequently, on June 30, 1983, defendant Integrity Insurance Company filed a rule to show cause why settlement should not be enforced. This matter was heard August 11, 1983 and judgment granting that rule was rendered August 26, 1983. Plaintiffs retained different counsel and have now brought this appeal asserting the trial court should not have enforced the alleged settlement as such settlement fails to comply with the requisites of LSA-C.C. Article 3071.

LSA-C.C. Article 3071 states:

“A transaction or compromise is an agreement between two or more persons, who, for preventing or putting an end to a lawsuit, adjust their differences by mutual consent, in the manner which they agree on, and which every one of them prefers to the hope of gaining, balanced by the danger of losing.
This contract must be either reduced into writing or recited in open court and capable of being transcribed from the record of the proceeding. The agreement recited in open court confers upon each of them the right of judicially enforcing its performance, although its substance may thereafter be written in a more convenient form.”

The second paragraph of this article previously read: “This contract must be reduced into writing.” However, a 1981 amendment rewrote that paragraph allowing such agreements to be recited in open court provided they are capable of being transcribed from the record of that proceeding.

The purpose of LSA-C.C. Article 3071 is to insure proper proof of extra-judicial agreements. Martin v. Holzer Sheet Metal Works, Inc., 376 So.2d 500 (La.1979). Although Martin was rendered prior to the above-mentioned amendment, we recognize that the purpose remains the same regardless of whether the agreement was actually reduced to writing or recited in open court and transcribed.

In the instant case, looking solely at the record, we can find no proof, either written or recited in open court, of the existence of any extra-judicial agreement. Appellee, however, continually asserts that such agreement was recited in open court at the May 9, 1983 hearing. We have examined carefully the transcript of that hearing contained in the record before us and cannot find any such recital.

Although there was an in-chambers, off-the-record discussion at the May 9 hearing, the nature of that discussion was never recited in open court. In fact, upon returning to the bench, the trial judge remarked that the parties were attempting to work out an amicable disposition of the pending matter and that he would.like to have the parties settle within seven days. The last statement made before the May 9 hearing was concluded was the trial judge’s apparent conclusion, “There has been a tentative offer made to settle this case.”

At the August 11, 1983 hearing, defense counsel chronologically presented the events of this case to the court. Mr. Car-ville, plaintiffs’ counsel at that time, was in agreement and responded, “Your Honor, basically what was said is correct.” Appel-lees now argue that such acknowledgment by Mr. Carville amounts to a judicial confession under LSA-C.C. Article 2291. We do not agree.

Appellee is now attempting to use Mr. Carville’s subsequent statement to prove the existence of that which simply did not legally exist. Our civil code speaks directly on compromise through Article 3071. To make a settlement judicially enforceable, it must either be reduced to writing or recited in open court. Recital of such agreements in open court must make full disclosure of the terms so that all parties concerned are fully apprised of their rights and obligations.

As this agreement was not legally perfected, the enforcement of the settlement was error. Accordingly, we afford no legally binding affect to the August 11 hearing.

Therefore, for the foregoing reasons, the judgment appealed from is hereby reversed and the matter is remanded to be reset for trial. All costs are to be paid by appellee.

REVERSED AND REMANDED.

      . Art. 2291. The judicial confession is the declaration which the party, or his special attorney in fact, makes in a judicial proceeding.
      It amounts to full proof against him who has made it.
      It cannot be divided against him.
      It cannot be revoked, unless it be proved to have been made through an error in fact.
      It cannot be revoked on a pretense of an error in law.


author: GAUDIN, Judge.

text:
    COMMERCIAL BANK & TRUST COMPANY v. Salvador CANALE, M.D.
    No. 83-CA-347.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 14, 1984.
    Writ Denied Sept. 14, 1984.

      Robert G. Creely, Amato & Creely, Gret-na, for defendant-appellant.
    A. Russell Roberts, Metairie, for plaintiff-appellee.
    Before BOWES, GAUDIN and GRIS-BAUM, JJ.
   GAUDIN, Judge.

Appellant is Dr. Salvador Canale, against whom a judgment on a promissory note was rendered in the 24th Judicial District Court.

On appeal, Dr. Canale contends that the trial judge erred in not recognizing his defenses of (1) equitable estoppel, (2) lack of consideration and (3) partial acceptance of a compromise settlement vitiating litigation seeking the entire amount due on the note.

We do not find error in the rejection of these defenses, and we affirm the judgment in favor of the Commercial Bank & Trust Company.

The loan in question was for the benefit of Dr. Canale’s friends, among them Clyde Carson and Cal Vada, who, according to Dr. Canale, were “... purporting to build installations selling Popeye’s Fried Chicken...” in Las Vegas, Nevada.

Dr. Canale executed a $40,000.00 promissory note and immediately turned all of the funds over to Carson and Vada, who were unable themselves to borrow money from the bank. Neither Carson nor Vada was required to sign the note.

Subsequently, payments on the obligation were made by Carson and Vada, the indebtedness reduced and new promissory notes signed by Dr. Canale. The final note, the one sued on, was in the amount of $36,000.00.

In raising the defense of equitable estop-pel, Dr. Canale cites Wilkinson v. Wilkinson, 323 So.2d 120 (La.1975), in which three necessary elements are discussed. They are: (1) a representation by conduct or word, (2) justifiable reliance and (3) a change in position to one’s detriment because of the reliance. Dr. Canale argues that he shouldn’t be held responsible for payment of the note because of representations made by Beauregard Redmond, the bank’s president, to the effect that the obligation to repay was Carson’s and Vada’s and not Dr. Canale’s.

The trial judge, in his “Reasons for Judgment,” said that “... the required proof for equitable estoppel was not met.” There was no further elaboration, and we do not know which requirement, in the district judge’s opinion, was not satisfied.

Equitable estoppels are not favored in Louisiana and are invoked sparingly because they bar the normal assertion of rights. See Wilkinson v. Wilkinson, supra; Abbeville Lumber Co. v. Richard, 350 So.2d 1292 (La.App. 3rd Cir.1977); and numerous similar cases.

Here, Dr. Canale was the only person to sign the sued-on note and the others preceding it. The record does not suggest any confusion or lack of legal understanding on Dr. Canale’s part regarding his responsibilities once he willingly executed the initial note and, later, the others. While Dr. Ca-nale and his friends testified about the bank president’s assurance of perpetual forbearance, the record contains a letter from Redmond to Dr. Canale, to wit:

“As discussed, attached is the Commercial Bank’s renewal note in the amount of $36,000.00 dated November 15, 1980, interest due through that date in the amount of $1,483.35. This note represents a 60 day extension on the original $40,000.00 obligation with receipt of the 10% principal payment and interest due.
“I would appreciate if you would execute the enclosed note, both on the front and back where indicated, and return to my attention. Also as discussed, on or before the next maturity date, you will liquidate this obligation in full.”

Although Dr. Canale did not recall receiving the letter, the trial judge said:

“I’ll receive it in evidence for the limited purpose of showing that the letter was composed by Mr. Redmond and allegedly mailed.”

Regardless, the letter does not give the impression that the bank president was prepared to forever forego collection attempts. As Dr. Canale’s name was the only one on the notes, from beginning to end of the loan transaction, the obligation could only be enforced by suit against him.

Mr. Redmond did not testify at the trial and consequently did not directly contradict the statements about his alleged agreement not to sue Dr. Canale. This does give some credibility to an equitable estoppel defense, as parol evidence can be introduced to show a creditor’s promise to refrain from enforcement of an obligation. Celles Enterprises v. Peoples Bank and Trust Company, cited at 425 So.2d 853 (La.App. 3rd Cir.1982) and 437 So.2d 1114 (La.1983).

However, we cannot say that the trial judge, after considering all of the testimony and evidence, along with Louisiana’s jurisprudence imposing a firm and gripping duty on those who sign promissory notes, erred in rejecting appellant’s attempt to invoke equitable estoppel.

We note that Dr. Canale did not secure or even try to obtain from any bank executive a written promise not to litigate against him. In Celles Enterprises v. Peoples Bank and Trust Company, supra, the Third Circuit stated:

“Furthermore, the facts do not justify application of the doctrine of equitable estoppel. The loss complained of was brought about by plaintiff’s own neglect in failing to secure a written agreement with the bank.”

The failure to obtain a written agreement to forbear may not be critical to equitable estoppel, but this failure can be a factor for the court’s consideration, as it was in Celles.

Turning now to appellant’s other contentions, we are mindful of the fact that a lack of consideration can be a valid defense to a promissory note action.. Here, bank funds were tendered straightforward to Dr. Canale as the sole maker and obli-gor. Although he chose to transfer the funds to his friends, there was consideration.

Appellant relies on Bank of Coushatta v. Debose, 10 So.2d 386 (La.App. 2nd Cir.1942), but in this 42-year-old decision, the plaintiff bank was unable to prove that any funds had been paid to the defendant or that the bank’s ledger sheets showed a credit to defendant’s account for the amount of the sued-on note. These facts and circumstances differ from Dr. Ca-nale’s.

Finally, Dr. Canale contends that the agreed-on compromise settlement was final and binding, and that consequently the bank was required to sue on this agree ment rather than on the note itself. This allegation caught the attention of the trial judge, who wrote in his "Reasons”:

“The alternative defense of compromise presented a more serious issue, especially in view of plaintiff’s acceptance and negotiation of the partial payment by defendant in settlement.”

Dr. Canale offered, in compromise, the sum of $30,000.00, which included a $10,-000.00 payment and a $20,000.00 personal check signed by him. The bank agreed to this settlement, but Dr. Canale stopped payment on the $20,000.00 personal check before it would be negotiated.

The trial judge concluded that the stopped payment check voided the attempted settlement and he "... restored the parties to their former positions in the lawsuit, crediting the defendant for the partial payment on the original obligation.”

In support of his position, Dr. Canale quotes from Berger v. Quintero, 170 La. 37, 127 So. 356 (1930):

“If plaintiff was not satisfied with the settlement tendered, he should not have retained the check, and caused it to be certified by the bank upon which it was drawn, but should have returned it, in the absence of a waiver of the condition attached to the remittance. By retaining the check, and causing it to be certified, he is now precluded from rejecting it, and suing defendant upon the entire claim.”

In Berger, payment was made of the amount one party felt was due and a check for this amount was accepted by the other party. The check was not negotiated, but the recipient had it certified by the sender’s bank.

Dr. Canale actually tendered only one-third of the compromise figure. The trial judge did not consider the $20,000.00 personal check on which payment was subsequently stopped as legitimately having formed part of the sum paid in settlement, and we cannot find fault with this determination.

Likewise, we cannot say that the district judge erred in crediting Dr. Canale’s account with the $10,000.00 partial payment.

The district court judgment against Dr. Canale in the sum of $36,000.00 plus stated attorney fees, less a $10,000.00 credit, is affirmed, with appellant to bear all costs.

AFFIRMED.