author: REDMANN, Chief Judge.

text:
    AVONDALE SHIPYARDS, INC. v. DELTA MARINE CONTRACTORS, INC.
    No. 12355.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 2, 1983.
    Rehearing Denied Nov. 22, 1983.
    Writ Denied Jan. 27, 1984.

      Robert B. Acomb, Jr. and Edward J. Koehl, Jr., Jones, Walker, Waechter, Poitev-ent, Carrere & Denegre, and Ignatz G. Kiefer, Kiefer, Glorioso & Fleming, New Orleans, for Avondale Shipyards, Inc.
    James E. Stovall, Jackson & Stovall, New Orleans, for Delta Marine Contractors, Inc.
    Before REDMANN, C.J., and CIACCIO and SCHOTT, JJ.
   REDMANN, Chief Judge.

Delta Marine Contractors, Inc. appeals from a judgment in favor of Avondale Shipyards for $270,215.84 damages for breach of two Navy shipbuilding subcontracts. Delta contends that breaches by Avondale caused Delta’s noncompletion of its contracts. But the primary contention of Delta’s reconventional demand is that, in any case, Avondale owes Delta $4,000,000 in price adjustments under these and similar contracts on Navy ships and $7,000,000 damages for a judicial sequestration that put Delta out of business. Delta further contends that Avondale did not prove the costs of completion awarded on the two contracts Avondale sued on.

We conclude that Avondale did prove its cost of completion, although the correct measure of damages is not cost but excess cost of completion; that equitable adjustments in Delta’s prices were represented by Avondale to the Navy to be due in amounts so far in excess of Avondale’s $50,000 provisional payment that Avondale must be held to owe further equitable adjustments notwithstanding that Delta’s deficient financial records prevent a mathematical approximation of equitable adjustments; that Delta did not prove that Avondale caused Delta’s breach of contract; and that Avon-dale’s judicial seizure was not unlawful (and was in any case not the cause of Delta’s destruction).

Avondale had contracts with the Navy to build first seven and then 20 more ocean escorts. Avondale subcontracted some parts of that work to Delta by “purchase orders” for fabrication alone or fabrication and installation of items such as doors and stowage fixtures.

Whether caused entirely by the Navy or in part by Avondale (as, possibly, by its need to “rebuild” two hurricane-damaged vessels it had under construction), delays of ' about two years occurred in the building of the ships, and these delays allegedly affected Delta by a variety of increased costs for which it requested but, save for a $50,000 advance by Avondale for “business interruption,” did not obtain equitable adjustment as authorized by the purchase orders and the general Navy contract. Meanwhile, Delta billed Avondale for progress payments not on the basis of percentage of completion (but not over cost plus 5%) as agreed and as recited in the billings, but instead on a basis related to Delta’s cash expenditures, including expenditures unrelated to the Avondale purchase orders. One consequence of those two factors, precipitated by Delta’s insistence on an agreement for storage charges, was that the remaining installation portion of the 20-ship stowage fixtures purchase order was canceled. (Avondale deemed the storage charges high and preferred itself to store the fabricated items; Delta believed its own installation costs would be thereby increased and Avon-dale believed Delta could not do the installation for the price assigned to it anyway.) Another consequence was that Delta became unable to complete the final portion of the two largest orders and notified Avon-dale of its intent to cease operations and sell everything it had, including all work in progress.

Avondale then judicially sequestered (and later bonded out and used) the work in progress and the material Delta had for the Avondale orders. (Delta charges the seizure went beyond those items.) Avondale itself completed the fabrication.

Avondale’s sequestration action also asked reimbursement of progress payment overbillings, return of $14,000 of its $50,000 provisional advance, and damages caused by Delta’s breach, including costs of the transportation of the sequestered items to Avon-dale.

Delta’s reconventional demand alleged that Avondale, rather than Delta, breached their contracts, first by delays and by refusal to afford equitable adjustment for the increased costs caused by the delays, and finally by the judicial seizure that Delta claims destroyed Delta as a business entity.

The trial court commissioner, in a 63-page report, recommended a judgment for Avon-dale for $270,215.84, as Avondale’s cost (sic) of completion of the Delta purchase orders (save installation but including $18,571.36 cost of transporting and warehousing the items sequestered from Delta). The trial court judge noted “difficulty in determining whether the Delta Marine claims for adjustment due to delays and disruption by the U.S. Navy were included in Avondale’s claim submission and settlement with the Navy,” but he “affirmed” the “Judgment of the Commissioner.”

We preliminarily observe that if Delta was entitled to recover its government-caused delay losses from Avondale who in turn was to recover from the Navy, Avondale’s failure to recoup those losses from the Navy does not preclude Delta’s recovery from Avondale. But we also observe that, to be entitled to recover from Avondale, Delta had to present its claims in time for Avondale to present them to the Navy for reimbursement. Delta did timely present its claims in the amounts of $199,-565 and $645,557; but Delta did not timely present its $4,000,000 upward revision of those claims. That upward revision was not claimed until the reconventional demand in this lawsuit. (And it is clear that most if not all of these claims are for Navy delay despite the contention that Avondale itself engaged in delay to force concessions from the Navy.) We therefore do not consider the upward revision of Delta’s claims notwithstanding that Delta’s brief argues this upward revision at great length.

We further observe that the basic damages for breach of a contract are not cost of completion but the excess cost of completion (as even the contracts’ General Requirement 34b specified), and it is therefore irrelevant to the basic measure of damages that Delta’s progress payment billings exceeded their rightful amount. The basic measure of damages is excess of total actual cost over contract price, and total actual cost is composed of all progress payments (whether correctly calculated or not) plus the cost of completion. To put it another way, had the progress payments been less by a given number of dollars, Avondale would have owed that number of dollars more to Delta to complete the job, and therefore the difference between the amount Avondale should have paid to Delta to complete the contracts and the amount Avondale in fact paid to complete the job itself — the excess cost of completion— would be smaller by that same number of dollars. We therefore do not detail Delta’s overbillings although a large portion of record and briefs consists of evidence and argument on overbillings. (Although over-billings are in themselves a violation of the contract terms, Avondale did not claim nor establish the amount of interest arguably due because of early payment, nor any set-off from late payment; and we presume this possible element of damage was abandoned by Avondale as minimal.)

Delta breached the contracts that Avondale sued on (relative to the 20-ship contract) by failing to complete them (because of financial inability) and threatening instead to sell the fabricated items and materials it held. The federal contractual agreement gave Avondale a lien if not title to those things. Avondale’s sequestration was not proven to be excessive and, perhaps more determinative of Delta’s claim on this point, was not the cause of Delta’s destruction as a business, for Delta had previously notified Avondale that it was ceasing all operations and selling all its assets.

Furthermore, Avondale did not by its own breach of those contracts cause Delta’s failure to complete its performance. Avon-dale’s delay to accept delivery of fabricated items was anticipated and permissible under the contracts’ General Requirement 22 (although Delta was entitled to a price adjustment for costs occasioned by such a delay). Avondale’s delay in payment, especially of Delta’s late 1970 billings, was not shown to be a breach of those contracts, because Delta’s earlier billings were in excess of the agreed limitation of monthly billings to costs plus 5%; by paying the earlier billings Avondale had apparently already paid Delta more than Delta was entitled to. Avondale did owe Delta some price adjustment, but Delta could at all times have recovered its actual costs plus 5% by monthly billings (and the other contractual limit, percentage of completion times price, in fact would not have been reached). Delta was not entitled to bill any more than that (because cost plus 5% was a contractual limit on monthly billings). So Delta had no contractual right to payment of any price adjustment on those contracts until after its own performance was completed (except to the extent monthly costs plus 5% would have totaled more than the unadjusted price, a possibility that did not in fact occur). Thus no breach of those contracts by Avondale was proven to have caused Delta’s breach of those contracts, and Avondale is therefore entitled to damages. (The evidence suggests that the funds that Delta received from Avondale were quite adequate for Delta to have completed the contracts. In fact Delta funneled about $1,000,000 into an unsuccessful business project unrelated to the Avondale contracts, and that money came very largely from the Avondale contracts, the bulk in value of which was constituted by the two sued upon. It appears likely that Delta would have survived and prospered if it had merely abided the cost plus 5% billings limit, and had not engaged in its disastrous side venture.)

Avondale did breach earlier contracts with Delta (relative to the seven-ship contract) in the sense of not having “performed with good faith,” La.C.C. 1901, its obligation to “agree upon such adjustments in the ... price ... as will equitably compensate [Delta] for the increased cost incurred” from suspension. Equitable adjustments were subject to Navy approval, but Avondale did obtain from the Navy a provisional adjustment of the whole seven-ship contract of over $18,000,000 in response to Avondale’s total claim of $49,255,202, which expressly included $199,565 claimed by Delta, and Avondale’s lump-sum settlements with the Navy expressly included all subcontractors’ claims and therefore waived any requirement of express Navy approval. Notwithstanding that Avondale’s final claim did not expressly include any dollar amount claimed by Delta (or any other subcontractor), nor that the final settlement of the seven-ship claim of $17,034,507 (of $80,-000,000 for both 7- and 20-ship contracts) was less than the provisional adjustment, we conclude — especially in view of Avon-dale’s written representations to the Navy that Delta had suffered losses from Navy-caused delays — that Delta was entitled to equitable adjustment on its portions of the seven-ship contract substantially greater than, say, 7/27ths of the $50,000 total for both 7- and 20-ship contracts advanced by Avondale.

Avondale’s and the trial court’s positions are not incomprehensible because Delta’s billing practices made its accounting suspect and, moreover, its supporting records were lost or destroyed to such an extent that a solid accounting verification of delay costs is not possible. And, for many obvious reasons, Delta’s added costs of fabrication of doors and fabrication and installation of stowage fixtures are not necessarily proportional to Avondale’s added costs for whole-ship fabrication. Furthermore, Avondale’s own claim included substantial, unpriced change orders. There is thus no support for a conclusion that Avondale’s receiving a certain percentage price adjustment on the whole contract proves that Delta should receive the same percentage adjustment, or even that Delta should receive the same percentage of its claim that Avondale received of its claim. Nevertheless, as Avondale’s own claim letters to the Navy asserted, Delta did suffer to some extent from the Navy-caused delays, and the contracts entitled Delta to an equitable adjustment in price.

The trial court’s failure to make any additional adjustment was due to its view that supportive evidence was lacking. Yet, in addition to Delta’s extensive accounting projection, very supportive of Delta’s 7-ship claims is Avondale’s August 28, 1970 letter to the Navy, written when Delta’s 7-ship work was largely complete. That letter is not a mere transmittal of Delta’s claim to the Navy, for it declares “Avondale has reviewed the subcontractor’s claim and comments as follows: ..,” There follows in large part a recommendation that the Delta claims be honored (although never for any specific dollar amount). We say “in large part” because, as to two of the six categories of claims, that Avondale letter advised the Navy “Avondale can find no direct relationship between the subcontractor’s additional costs and direct Government responsibility.” As to the other four categories, Avondale’s letter commented in part:

“1. Interruptions and Delays in Installation
[Delta] claims $124,813.70 .... The disruption suffered by Delta parallels the disruption suffered by both Todd shipyards and Avondale as a result of the cumulative effect of all the government actions ....
“2. Non-Standardization of Drawings
[Delta] claims $9,815.60 .... [Delta] bid ... on the basis of the specification requirements which define the stowages to be in accordance with standard BuShips drawings .... The extremely crowded nature of the ship inherent in the Government’s design made the standardization of stowages impossible, and [Delta] has been subjected to the increased costs of customized stowage ....
“3. Changes in Cylinder Stowage Requirements
Delta claims $2,310.11 .... The Government is responsible for the additional cost ....
“6. Warehousing
[Delta] claims $57,336.75 .... [Delta] is entitled to the additional costs of warehousing caused by the Government-responsible delay.”

Those words are words of endorsement by Avondale of those parts of Delta’s claim, although not necessarily of their specific dollar amounts. A court of law can not allow Avondale to tell the government that the government should pay Avondale for Delta’s claim (plus 13.2% for Avondale’s profit) but then, after settling all claims with the government, tell Delta that Delta’s claim is almost worthless. Avondale cannot now make that assertion, unless Avondale can either explain away its endorsement of Delta’s claim to .the government or can show that the government expressly rejected the Delta claim. Avondale officers did testify that government auditors “had issued a non-favorable report” on the Delta claim; yet Avondale refused to give Delta any written auditors’ report to support that assertion, and did not produce it at trial. Avondale did show that the final form of its claim submission to the Navy did not expressly include any dollar amounts of any subcontractors’ claims, but that does not overcome Avondale’s earlier endorsement. If Avondale’s “review” of Delta’s claim satisfied Avondale that four of its six elements merited some payment by the government, that review should certainly have satisfied Avondale that it owed Delta some substantial agreement for equitable adjustment.

The Avondale letter-endorsement was not for the specific dollar amounts. Yet, just as Avondale rightly recognized the obligation to advise the Navy that two elements of Delta’s claim seemed unjustified, Avondale should equally have recognized an obligation to advise the Navy that the other four elements were exorbitantly overstated, if indeed that was Avondale’s view. Avon-dale’s failure to so advise the Navy is not the equivalent of accepting those elements’ dollar amounts, but in the context of equitable adjustment we deem the Avondale endorsement to estop Avondale from denying that some significant part of those elements is due.

We tend towards the view that a knowledgeable general contractor, itself entitled to similar equitable adjustments from the same causes, would ordinarily spot a subcontractor’s 100% or more over-statement of a claim for equitable adjustment, and would therefore not include such a claim in its own submission without some indication to the government in its “review and comment” of that subcontractor’s claim. Such a knowledgeable general contractor is presumably capable of making an educated estimate of the value of the subcontractor’s claim, at least within a broad margin of error.

“[T]here is an element of estimating in almost all equitable adjustments and there should be no question that estimates by knowledgeable people are relevant proof of the amount of a claim .... “At the level of the contracting parties, there is usually great awareness that estimates of the various elements of cost involved in equitable adjustment are the normal form of information which must be used to conclude the negotiation.” Nash, Government Contract Changes, 441-442.

Actual cost data is more probative than estimates, but in some cases “the boards and courts have recognized the difficulty a smaller contractor faces in keeping detailed records of actual costs and have excused the lack of such records.” Id., 443. And, although in most cases appeals boards, like government contracting officers, analyze claims on an item-by-item basis,

“In some cases, appeals boards use a much broader approach in arriving at the amount of the adjustment. When the data available and the testimony is highly complex, the appeals board will occasionally render a true jury verdict — an award of a dollar amount without any description or analysis of the elements of the adjustment. In such cases the boards weigh all of the evidence presented to them and reach a judgmental decision. These decisions are generally not in the amount requested by the contractor but are at a significantly lower figure. This reflects the caution exhibited by the appeals boards when faced with the lack of concrete costs and estimating techniques on which to base their decisions. “Another technique that is used with some regularity is the granting of a jury verdict at a percentage of the ‘total cost’ amount requested by the contractor .... There are a number of cases where the appeals boards have rejected the ‘total cost’ approach but have also felt that it was unfair to give the contractor no adjustment at all. In these cases, the boards have stated that they are using the jury verdict approach to give a portion of the total cost claim. Percentages of 30%, 38⅛%, 50% and 68% have been used in this manner. Usually this is done when, in considering one portion of a contractor’s claim, there is no proof of actual costs but the total cost presentation can be related to that portion of the claim. This is a good example of the willingness of the appeals boards to grant some relief in spite of the inability of the contractor to present evidence of the costs that were incurred as a result of the change.” Id., 446.

Avondale’s own lump-sum settlement of $80,000,000 on its $169,000,000 claim may itself have been in the nature of a “jury verdict” award, for it is conceded that it was not an item-by-item award and that no specific dollar amount was attributed to any element of Avondale’s overall claim.

Especially in view of Avondale’s endorsement of most of Delta’s 7-ship claim, considered in light of Avondale’s own familiarity with delay costs on this project, we deem it plain that Avondale’s contract at least obliged it to reach some “jury verdict” type of agreement with Delta for an equitable adjustment. We cannot fault Avondale’s letter’s rejection of two of the six described elements of this claim as not attributable to government delays. But the remaining four elements, totalling $194,276.16 (ignoring Delta’s later increases, never timely submitted to Avondale), were endorsed by Avondale to the Navy (though not as to dollar amount), and should have produced a substantial equitable adjustment.

The $50,000 provisional adjustment that Avondale advanced for Delta’s “business interruption” was for both 7- and 20-ship claims, for which Delta’s claims (including the 1971 reduction of the 20-ship claim) totaled about $865,000. Proration of the $50,000 over the 27 ships would mean that less than $13,000 of the $50,000 is attributable to Delta’s 7-ship claim, of which $194,-276.16 was endorsed (though not specifically as to amount) by Avondale to the Navy. That seems far too little as an equitable adjustment.

We conclude that any performance “with good faith,” La.C.C. 1901, of Avondale’s contractual obligation to agree with Delta upon equitable adjustment, under all the circumstances, could not have resulted in an equitable adjustment of less than a fourth of that $194,276.16. We would therefore allow Delta a “jury verdict” credit of $48,-569.04 on its 7-ship claim. (We here note our rejection of Avondale’s construction of a January 14, 1969 agreement to oblige Delta to provide warehousing of fabricated items indefinitely without charge until Avondale needed them; the August 1970 letter’s recommendation that the Navy pay Delta’s warehousing during the delay is wholly irreconcilable with such a construction.)

Delta’s claims on the 20-ship contracts also have some justification in the government-caused delays, and to some extent they have a general endorsement by Avon-dale in another letter of August 28, 1970. But Delta itself reduced its $723,814.33 claim by about 11% to $645,557 in June 1971 because of the partial cancellation of the installation portion, and the first element of this claim, labor rate escalation ($26,400), related to installation labor, eliminating, we estimate, about 80% of that element. The extended commitment element ($330,525) was not commented on by Avondale “as it is subject to audit.” As to the loss of efficiency element ($129,514), Avondale commented to the Navy only concerning $58,870 of (non-installation) labor, saying that that amount “represents a relatively small percentage of the total labor value .... Other participants ... have suffered larger percentages of inefficiency.” The non-standardization of drawings ($26,438.72) and the warehousing ($210,936.61) elements received the same favorable Avondale comment quoted above for the 7-ship claim. (Avondale itself received, of its $80,000,000 settlement, $62,965,493 attributed to the 20-ship contract, on which it had claimed a total of about $120,000,000.) We deem that Avondale letter an endorsement to the Navy of about $5,280 (20%) of the $26,400 labor rate escalation, $58,870 for loss of efficiency (without rejecting the balance of that element), and $26,438.72 plus $210,-936.61 for the last two elements (without rejecting the $330,525 extended commitment element “subject to audit”), or a total of $301,525.33 (although not specifically as to amount), which must be reduced by Delta’s June 1971 reduction of 11% to $268,-357.54. As we did in the 7-ship claim, we conclude that a good faith equitable adjustment could not have been less than a fourth of those endorsed amounts, or $67,089.39. We further believe that as to the non-rejected items of $330,525 and $70,644 (loss of efficiency other than labor), at least 10% of 89% (100% reduced by 11%), or $35,704.04, would have been a minimal equitable adjustment on Delta’s 20-ship claim.

As a final offset, we allow the uncontra-dicted $8,382.65 balance that Avondale owes Delta on an unrelated $195,250 LASH spools order.

But Delta’s appeal also complains of the trial court’s use of Avondale’s accounting of its cost of completion on several grounds. We conclude that Avondale’s testimony and records support the trial court’s finding that transportation of goods from Delta to Avondale and completion of fabrication cost Avondale $270,815.84 (including overhead and profit). Only excess cost of completion is recoverable as damages, however. From the cost of completion there would have to be deducted any balance due on the adjusted contract price, including the equitable adjustment (less some part of the $50,000 provisional advance Avondale made).

The prices of the two 20-ship contracts Avondale sued on, including change orders, were $2,318,451 and $563,260, a total of $2,881,711, less the partial cancellation of installation, evaluated by Delta at the time at $189,061.52. That Delta evaluation was never expressly agreed to by Avondale, but it is consistent with the basic installation charge of $13,000 for each of 20 ships, and it is not contradicted by Avondale’s evidence. We fix those two contracts’ prices at $2,692,649.48 (not yet equitably adjusted). Of that amount Avondale paid approximately $2,650,032.78 (there are three sets of figures, within $15 of one another), leaving a balance of $42,616.70 that Avon-dale would have had to pay Delta had Delta completed the fabrication, in addition to any unpaid equitable adjustment.

We have concluded that an equitable adjustment was due of no less than $102,-793.43 on those two 20-ship contracts, although part of that must be considered paid by some part of the $50,000 provisional advance Avondale made.

Rather than assign some apportionment of that $50,000 to each of the 7- and 20-ship contracts, we reach an overall net award to Avondale as follows: $270,215.84 cost of completion, minus $42,616.70 due on basic contract prices (including change orders and cancellation), minus $102,793.43 equitable adjustment on the 20-ship contract, minus $48,509.04 equitable adjustment on the 7-ship contract, plus $50,000 provisional advance by Avondale, minus $8,382.65 unpaid on LASH spools, for a final amount of $117,854.02.

The judgment is amended to $117,854.02 plus interest from judicial demand (as awarded by the trial court), with all costs to be divided equally.


source: Caselaw Access Project

author: BYRNES, Judge.

license: Public Domain

text:
    L. Walker ALLEN, III and Lange W. Allen v. FIRST NATIONAL BANK OF COMMERCE.
    No. CA 0749.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 6, 1983.
    Rehearing Denied Nov. 22, 1983.
    Writ Denied Jan. 27, 1984.
    Kenneth J. Berke, Kathleen R. Allen, New Orleans, for plaintiff-appellant.
    Jones, Walker, Waechter, Poitevent, Carrere & Denegree, Edward D. Wegmann, James P. Browning, Jr., Harry S. Hardin, III, New Orleans, for defendant-appellee.
    Before GULOTTA, WARD' and BYRNES, JJ.
   BYRNES, Judge.

By this appeal L. Walker Allen, II and Lange W. Allen seek reversal of the granting of an exception of prematurity in their eviction suit against 1st. National Bank of Commerce (1st. NBC). We affirm.

The Allens instituted eviction proceedings based on an alleged breach of an indemnity clause in their lease with 1st. NBC. The breach alleged was the failure of 1st. NBC to defend the Allens in a tort suit filed against them as owners of the leased premises. On the basis of 1st. NBC’s refusal to assume their defense in that suit the Allens attempted to place the bank in default and cancel the lease.

The lease in question provided a 90 day grace period after written notice of default in which the lessee could cure the default. There is some question as to the validity of the notice in this case, which was sent to counsel for the bank’s insurer and not directly to the bank as provided in the lease. However, we base our ruling on the fact that the default was cured prior to the filing of the rule to evict. The record reveals that formal written notice of default was sent by the Allens to counsel for 1st. NBC’s insurer on September 21, 1982. By the terms of the lease 1st NBC was allowed 90 days to cure the default.

The record further reveals that on November 19, 1982 counsel for the Bank’s insurer agreed to abide by the indemnity clause of the lease and assume the defense of the suit. Thus, regardless of all other issues raised by this appeal it appears that the default complained of was cured before the rule to evict was filed on November 24, 1982. Moreover, the grace period provided in the lease for curing the alleged default did not expire until December 21, 1982, approximately one month after the rule to evict was filed. Under these circumstances the exception of prematurity was properly granted.

For the foregoing reasons the judgment of the trial court is affirmed at appellants costs.

AFFIRMED.


author: BYRNES, Judge. GARRISON, Judge,

text:
    PLUMBING SUPPLY HOUSE, INC. v. CENTURY NATIONAL BANK. CENTURY NATIONAL BANK v. PLUMBING SUPPLY HOUSE, INC.
    Nos. C A 0363, C A 0574.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 6, 1983.
    Rehearing Denied Nov. 22, 1983.
    Writs Denied Jan. 27, 1984.

      Kehl, Pickering, Cotogno & Delsa, Kenneth E. Pickering, Claudia Sue Dunn, New Orleans, for defendant-appellee.
    Leefe & Roniger, Guy L. Leefe, New Orleans, for plaintiff-appellant.
    Before GARRISON, BYRNES and WILLIAMS, JJ.
   BYRNES, Judge.

This is a consolidated appeal arising out of foreclosure proceedings instituted by ap-pellee, Century National Bank (hereinafter CNB), against Plumbing Supply House Inc. (hereinafter PSH), and its owners Mr. and Mrs. Milton H. Girard.

On January 24, 1978 PSH executed a promissory note in favor of CNB in the amount of $250,000.00, payable on demand. In order to secure this note PSH executed the following documents; a collateral chattel mortgage on its inventory, a ne varietur note for $225,000.00, a collateral pledge agreement pledging the ne varietur note to CNB, and an assignment of its accounts receivable to CNB.

In early 1979 CNB informed Mr. Girard, president of PSH, that the outstanding balance on the loan had to be reduced. To obtain the necessary funds Mr. Girard arranged for a loan to the corporation by Walter Heller & Co. This loan was conditioned on the assignment to Heller of the accounts receivable which had previously been assigned to CNB. To obtain their release Girard agreed that PSH would reduce the outstanding balance on its note by $65,000.00. He further agreed to arrange for the pledge of a collateral mortgage on his home by PSH as additional security for the debt of the corporation.

On April 26, 1979 Mr. & Mrs. Girard met with Dale Black, president of CNB, in the office of Lee Miller Jr., the bank’s attorney to perfect the collateral mortgage and pledge. The Girards executed a collateral mortgage and ne varietur note on their home, an hypothecation agreement authorizing PSH to pledge the ne varietur note as security for PSH’s $225,000.00 hand note, and a collateral pledge agreement. A notation was made on the back of PSH’s $225,-000.00 hand note to the effect that a collateral mortgage on the Girard house had been pledged as additional security on the note. There was a space below that notation for Mr. Girard, as president of PSH, to sign, but no signature appears.

In September 1979 PSH failed to pay a principal reduction of $25,000.00 which was due on the 30th of that month. On October 17,1979 PSH paid $15,000.00 of this amount but on October 25, 1979 CNB matured the collateral mortgage note and proceeded to foreclose on the inventory by executory process.

The inventory was sold at a Sheriff’s sale on March 31, 1980 but did not generate sufficient funds to satisfy the debt owed to CNB. PSH did not seek to enjoin this sale or take a suspensive appeal under C.C.P. Art. 2642. Instead they chose to file a suit for damages against CNB alleging that the bank breached its fidicuary obligation as pledge of the inventory by instituting foreclosure on the basis of unsubstantiated rumors that PSH was liquidating its inventory below cost and concealing the profits from CNB.

During the pendency of this suit CNB moved to foreclose on the Girard’s home, which they alleged had been pledged as additional security on PSH’s debt. The Gir-ards intervened and obtained a temporary restraining order forbidding the sale. CNB then moved for summary judgment and filed an exception of no cause or no right of action to PSH’s damage suit. The trial judge granted the motion for summary judgment, maintained the exception of no right of action and dismissed the suit. The court also denied the Girard’s request for a permanent injunction.

THE PLEDGE OF THE HOUSE

On appeal the Girards contend that no valid pledge of the collateral mortgage on their home was made by PSH. Their version of the facts is that during the April 26 meeting Mrs. Girard inquired as to the effect of the document she was signing and, upon discovering that her home was to be pledged to secure the debts of the corporation, she objected and refused to proceed further.

In support of their position the Girards assert that the collateral pledge agreement which they signed was intended to secure their personal indebtness to the bank and not the debts of the corporation. However, no evidence of a personal debt owed by the Girards to CNB was introduced at trial. They contend that their actions after Mrs. Girard’s objections show a lack of intent to pledge their house. They further argue that the absence of Mr. Girard’s signature of the back of the hand note where the additional security of the Girard’s house is noted proves that Mr. Girard, as president of the corporation, never pledged that security. Wé disagree.

As to the collateral pledge agreement we note that while this document may be evidence of an intent to pledge it is not necessary to perfect a pledge of the type involved in this ease. The pledge here was of a ne varietur collateral mortgage note in bearer form. To pledge such a negotiable instrument no written agreement or other formality beyond delivery to the pledge is required. CC Art. 3158, Terrebonne Bank and Trust Co. v. Smith, 415 So.2d 414 (La.App. 1st Cir.1982), First National Bank of Lafayette v. Gaddis, 250 So.2d 504 (La.App. 3rd Cir.1971), American Bank and Trust Co. v. Straughn, 248 So.2d 73 (La.App. 1st Cir. 1971).

Appellants are correct in observing that intent to pledge must also be shown for the contract of pledge to be complete. They argue that the circumstances surrounding the transaction do not show such an intent. The trial court found that there was a meeting of the minds between the parties as to the pledge of the Girard’s house. He based his finding on an evaluation of the testimony of the witnesses to the notarial act which created the collateral mortgage and the subsequent actions of the parties.

The notary who prepared the documents, the president of the bank, and the witnesses to the act all testified that no objection to the proceedings was raised at any time by either Mr. or Mrs. Girard. This testimony was of course contradicted by that of the Girards. However, the circumstances of the case indicate to this court, as they did to the trial court, that a pledge was intended and perfected.

Although the Girards argue that they did not intend to pledge their house to CNB they allowed the fully executed documents perfecting that pledge to remain in the bank’s possession even after they allegedly made it known that they did not want to pledge the house. No attempt was made to cancel or regain these documents until the bank initiated foreclosure proceedings. Moreover, the hypothecation agreement which authorized PSH to pledge the collateral mortgage note on the house contained a provision which provided for revocation of the corporation’s authority to pledge upon written notice by the Girards to the bank. No such notice was ever given.

In addition Mr. Miller sent the Girards a bill for his services in preparing the collateral mortgage as well as a copy of the mortgage and pertinent information concerning its recordation of behalf of the bank. The Girards paid this bill without objection. Moreover, when the Girards transferred the property to a trust for their grandchildren the collateral mortgage in favor of CNB was listed as an outstanding encumbrance. The Girards did not contact the bank or Mr. Miller to ascertain why an encumbrance which they contend was invalid was so recorded.

Appellant attaches great significance to the fact that Mr. Girard never endorsed the back of the $225,000.00 hand note after the pledge of the Girard’s house as additional security was noted on the back. However, we have found no law which requires this endorsement to establish CNB’s right to executory process. Its absence seems relevant only to the issue of intent to pledge.

The trial judge concluded that, under the circumstances of this case, the Gir-ards had failed to establish the absence on an intent to pledge their home. We agree.

The Girards also contend that, assuming the existence of a pledge, the evidence of that pledge was insufficient to support ex-ecutory process. We find this contention to be without merit.

A promissory note secured by a collateral mortgage and payable to bearer may be pledged by mere delivery. No authentic evidence of endorsement or transfer is required to entitle the transferee to foreclose by executory process. Terrebonne Bank and Trust Co. v. Smith, supra. First National Bank of Lafayette v. Gaddis, supra.

Because no authentic evidence of the pledge of this ne varietur bearer note is required, the delivery of that note by the Girards to CNB and CNB’s continued possession of that note until foreclosure was instituted was sufficient to support execu-tory process.

Appellant’s contention that CNB did not allege the existence of a pledge of the collateral mortgage note on the Girard home in its petition for executory process is not supported by the record. We have reviewed that petition and find that it includes allegations of a pledge of the house for the debts of PSH.

THE DAMAGE SUIT

We next address the dismissal of PSH’s damage suit. The basis for this suit was the allegation that CNB breached its pledge agreement by precipitously foreclosing on PSH’s inventory based on unsubstantiated rumors of covert liquidation and concealment of profits without first making demand on PSH and allowing it 24 hours to post additional security. We find this contention to be without merit.

The petition for executory process filed by CNB reveals that a late payment by PSH was the primary reason for the foreclosure and not the rumors alleged by the Girards. A reading of the collateral pledge agreement reveals that, contrary to the allegations of the Girard’s petition, CNB was given the option to mature the note upon late payment of any installment or demand additional security. The bank chose to mature the note. A demand for additional security was not a condition precedent to foreclosure. We can see no abuse of right or breach of a contractual duty in CNB’s exercise of this option.

The Girards also contend that, because the bank failed to make demand for payment or give notice that the note had been matured they had not been put in default and thus the note was not due. This position is not supported by the record. The collateral mortgage agreement signed by Mr. Girard waived demand and notice and allowed the Bank to foreclose on the pledged security without first putting PSH in default. Thus the Girard’s contention that these omissions constituted a wrongful seizure is without merit.

We cannot see how CNB’s exercise of its rights under the collateral mortgage constituted bad faith. Had they foreclosed solely on the basis of unsubstantiated rumors this claim would perhaps have merit. This however was not the case and we are unwilling to infer bad faith from the Bank’s assertion of it’s contractual rights.

Because CNB was within its rights by foreclosing on PSH’s inventory based on late payments of the collateral mortgage note we cannot characterize the seizure of that inventory as wrongful. The illegality of the seizure is the ‘fault’ which forms the basis of an action for wrongful seizure under C.C. Art. 2315. In the absence of a wrongful seizure there is no basis for a damage suit.

Moreover, except for their allegations that CNB was acting on the basis of unfounded rumor, the Girard’s petition attempts to assert defenses to the use of executory process and not allegations of negligence or bad faith by CNB.

It is well settled that all defenses and procedural objections to an executory process proceeding are waived if the debtor allows the seizure and sale to proceed un-eontested by either a suit for injunction or suspensive appeal. Reed v. Meaux, 292 So.2d 557 (La.1974) Alison Mortgage Investment Trust v. Commercial Leasing and Financing Co. Inc., 334 So.2d 705 (La.App. 3rd Cir.1976). Thereafter, defects of a substantive nature, such as a lack of authentic evidence, may be urged in a direct action to annual the sale if the property remains in the hands of the seizing creditor. Reed v. Meaux, supra. However if the property is in hands of a third party the debtor may use any defense, procedural or substantive, which he could have urged in the original proceeding as a defense to a suit by the creditor for a deficiency judgment. League Central Credit Union v. Montgomery, 251 La. 971, 207 So.2d 762 (1968).

In this case PSH failed to avail itself of the procedural protection which the law provides to debtors in an executory proceeding. Instead a petition for damages was filed on March 6, 1983, more than a week before the scheduled sale. Thus it appears that the suit for damages was filed at a time when injunctive relief was still available to PSH.

In these circumstances we agree with the trial court that PSH waived any objections to the foreclosure proceeding by its failure to object to those proceedings in the manner mandated by CCP Art. 2642. As previously discussed we have reviewed the record of the foreclosure proceedings and find that they were properly conducted and that no wrongful seizure took place. We therefore affirm the dismissal of the damage suit.

Both judgments of the lower court are affirmed. All cost of this appeal are to be borne by the appellant.

AFFIRMED.

GARRISON, J., dissents with reasons.

GARRISON, Judge,

dissenting:

It appears to me that a grave injustice has been done to the plaintiff in this case.

From the pleadings, the judge below has thrown out of court — unheeded and unheard — a plaintiff who has been virtually plundered of his property. The defendant bank, in contrast, appears to have profited richly from its very own irregularities.

The plaintiff’s petition for damages, well and fully pleaded, describes a raid on plaintiff’s business of which Attila the Hun justly could be proud. The resultant stampede of creditors apparently made the permanent ruin of his substantial enterprise irreversible. The loss to plaintiff appears to have amounted to millions of dollars. Yet this entire disaster seems to have been initiated by the bank’s precipitate over-reaction to a rumor which turned out to be untrue.

Are we really going to tell the plaintiff in such a case, one whose entire business has been destroyed and has come to the law for help, that he has “no right of action”?

The trial judge held that the plaintiff’s damage suit can be regarded as nothing more than a technical collateral attack on the foreclosure proceedings. The aggrieved plaintiff has been told that he first should have danced through the ritual minuet of seeking an injunction or appealing suspen-sively, failing which Louisiana law will not hear his claim for damages. But the plaintiff’s suit appears to me to be far broader than it was treated by the judge, far more than a mere procedural ploy.

The suit seeks recovery for the loss of plaintiff’s ability to function commercially, for the loss of business reputation, for the violation of its ownership and property rights, for the breach of defendant’s banking agreements with Plumbing Supply House and the violation of its fiduciary duties to Plumbing Supply House. The possibility of restitution for most of these losses addresses itself not merely to the procedural application of negotiable instruments law but more broadly to Civil Code Article 2315, the foundation upon which all tort law in Louisiana has been constructed.

The cases apparently relied upon by the trial judge for his actions simply do not appear to be apt. In this case plaintiff seeks recovery of damages from the Century National Bank, .not annulment of the sale of its inventory. Here, a judgment in the plaintiff’s favor on the suit for damages would not affect the title of those persons who purchased the plaintiff’s inventory at the Sheriff’s sale.

Even if, in fact, the plaintiff’s claim for damages could be limited to a collateral attack upon the original executory proceeding and a showing of defects in that proceeding, then the plaintiff nevertheless should have his opportunity to show the apparently pronounced ill practices and improper procedures employed by the defendant bank. Such actions, if their occurrence is confirmed by evidence, strike at the very foundation of executory process and should be brought out into the light of day.

Article 2315 does not contemplate conditional responsibility and the duty to repair damage caused is not contingent upon conditions. That Article should not be regarded as contemplating the requirement of contingent necessities (simply because exec-utory process appears to have been the instrument of damage) such as first paying homage to injunction or annulment or sus-pensive appeal.

In the final analysis, Article 2315 is entirely Civil in origin, has no relation to the common law and derives none of its effect from it. Consequently it is not susceptible of interpretation on the basis of common law principles. Yet that is precisely what the trial judge has sought to do in this case. The particular common law conditions which he would require in order for the plaintiff to have access to Article 2315 are the seeking of an injunction or a suspensive appeal.

The imposition upon Article 2315 of such contingencies are difficult for me to reconcile with Civil method. These “requirements” are not only patently of common law origin, with regard to their applicability to any tort action, but are essentially procedural in nature.

Thus, under Article 2315, the elements of a cause of action are fault (which embraces all conduct falling below a proper standard), causation and damage, All tort liability in Louisiana arises exclusively from the delictual principles of the Civil Code articles governing offenses and quasi offenses (Civil Code Articles 2315 to 2324).

In a State in which fact pleading replaces ritual, the question as to which door the plaintiff has entered should not be sacramental. To dispose of this case so casually — in the face of apparent fault by the defendant and possible damages of millions of dollars to the plaintiff — does not permit the full and balanced disposition for which such a case appears to cry out. Considering the clear applicability which I believe exists in the Civil Code, the judge below (and our majority opinion, as well) seems to be informing the plaintiff that “you may have a cause of action, but we have a little game we play which prevents us from hearing it.”

I must dissent from any such capricious resolution. The plaintiff should have his day in court.

      . Hightower v. Dr. Pepper Bottling Company of Shreveport, Inc., 117 So.2d 642 (La.App. 2nd Cir.1959).

      . Article 2315 does not contemplate conditional nor contingent responsibility. Marine Ins. Co. v. Strecker, 234 La. 522, 100 So.2d 493 (1958).

      . Hightower v. Dr. Pepper Bottling Company of Shreveport, Inc., supra.

      . Grad v. U.S., D.C.1977, 435 F.Supp. 189; Straley v. Calongne Drayage & Storage, Inc., 346 So.2d 171 (La.1977), on remand 350 So.2d 1231 (La.App. 4th Cir.1977); Weiland v. King, 281 So.2d 688 (La.1973).

        .Guilyot v. Del-Gulf Supply, Inc., 362 So.2d 816 (La.App. 4th Cir.1978).


author: LOBRANO, Judge.

text:
    SUCCESSION OF Spencer L. KEARL.
    No. CA-0678.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 6, 1983.
    Writ Denied Dec. 9, 1983.

      Guy W. Smith, Eric John Witmeyer, Simon, Peragine, Smith & Redfearn, New Orleans, for plaintiff/appellee Cyril M. Kearl.
    John D. Wogan, Neil Ann Parks, Monroe & Lemann, New Orleans, for plaintiff/appellant Rosemary N. Bridges.
    Before GARRISON, LOBRANO and GU-LOTTA, JJ.
   LOBRANO, Judge.

This litigation involves the interpretation of certain legacies in the last will and testament of Spencer L. Kearl, a resident of Orleans Parish who died on November 3, 1981. Decedent’s testament, dated November 2, 1981, is in olographic form, and provides as follows:

“To whom it may concern — this is my last will and supersedes all previous wills.
(1) I own a substantial amount of stock with E.P. Hutton & Co.
(2) I own a substantial equity that has been accumulated in St. of Colo, retirement plan.
(3) I own a 50% interest in properties in the Santa Rosa area of Florida. This investment is with Joe Bill Jackson. Papers I have are in an attached brown folder — Joe Bill can work out our recent economic positions — I trust him implicitly.
(4) I have my original $10,000 GI insurance and have paid up $2,000 more, so there should be about $12,000 in this source.
(5) I have been paying to the government by deductions from retirement pay what is in effect a policy that will of a major (sic) pay for life. This policy for Rosemary N. Bridges.
Following is how I want my properties distributed:
Rosemary N. Bridges—
Some oil equity I own 50/50 with Dave Loeffler
Government annuity $800,000 cash or stock my car
Bryant Kearl George Irvings furniture
John Bridges my photo equipment
Bry Cyril Russell Phyllis Marge The balance of my ownership in stocks, cash, or as desired, shall be split Vs to each of the bracketed.
I wish Cyril to execute my estate .... ”

The sole issue in this appeal is the interpretation of the legacy to Rosemary N. Bridges (appellant) which provides “$800,-000 cash or stock”, and the legacy to Bryant, Cyril, Russell and Marge Kearl and Phyllis Belnap (appellees), which provides “the balance of my ownership in stocks, cash or as desired shall be split Vs to each of the bracketed.”

Appellant contends that the bequest to appellees is a universal legacy, or a legacy under universal title, and therefore they are responsible for the debts of the succession. She claims her legacy is a particular bequest, and therefore should be delivered free and clear of all expenses. La.C.C. Art. 1480. Appellees admit that the bequest to appellant is a particular legacy, but they claim it is a bequest of a certain pro-rata share of decedent’s stock. As such, appellant must bear the brunt pro-rata of the stock market decline between date of death, and the date it was sold. Further, they claim that their legacy is a particular bequest also, and since there are insufficient funds in the residual estate, the particular legatees must share the debts in proportion to their legacies.

Without going into the mathematical computations of the trial court’s judgment it is sufficient to state that the lower court held both bequests to be particular, and that both must share the debts proportionately. Additionally, the trial court held that appellant’s legacy was one of stock, and therefore was subject to a pro-rata reduction because of the market decline.

In the interpretation of a last will and testament, the intention of the testator must be ascertained from the proper signification of the terms of the testament. La. C.C. Art. 1712. This court is bound to interpret the will as it is written and give effect to what the testator said, not to what anyone might speculate that the testator intended. Succession of Martin, 262 So.2d 46 (La.App. 1st Cir.1972), writs denied 263 So.2d 729. Where the language of the testament is clear and unambiguous, forced interpretations are not permissible and the court cannot “put words in the testator’s mouth.” Succession of Martin, id.

Bequest to Appellant

All parties are in agreement that the bequest to appellant is a particular legacy. Appellant contends, however, that it is a bequest of $800,000, which she can take either in cash or stock. We agree. A simple reading of the terms “$800,000 cash or stock” clearly manifests the testator’s intention to give appellant $800,000. Since decedent’s estate was more than sufficient to satisfy this legacy, appellant was given the option by the testator of taking cash or stock.

Bequest to Appellees

Since decedent failed to mention his Florida real property holdings in his bequest to appellees, they claim it manifest his intention to let that property pass intestate, thus making their legacy a particular one also. We disagree.

Testamentary dispositions in Louisiana are either universal legacies, legacy under a universal title, or a particular legacy. A universal legacy is one by which the testator gives to one or several persons the whole of the property he leaves at his death. La.C.C.Art. 1606. A residual legacy is a “universal legacy” and descriptive words of the different kinds of property composing the residue are not words of “limitation” but of “illustration”. Succ. of Peters, 192 La. 744, 189 So. 122 (1939). A legacy under universal title is that by which a testator bequeaths a certain proportion of the effects of which the law permits him to dispose, as a half, a third or all of his immovables or all of his movables, or a fixed proportion of all his immovables or movables. La.C.C. Art. 1612. Every legacy not included in the above two definitions is a particular legacy.

Whenever possible a will should be read as to lead to testacy, not intestacy. Succession of Carter, 332 So.2d 439 (La.1976). “In the absence of contrary expressions, the law presumes that when a will is executed the testator intends to dispose of his entire estate.” Succession of Carter, supra at 442.

“... the cases have recognized that in the interpretation of wills, the first and natural impression conveyed to the mind on reading the will as a whole is entitled to great weight. The testator is not supposed to be propounding riddles, but rather to be conveying his ideas to the best of his ability so as to be correctly understood at first view.” Succ. of Carter, id.

Applying the above cited legal principles to the language of decedent’s will we hold that the bequest to appellees was a universal legacy, and included the remainder of decedent’s estate. Decedent listed, in the beginning of his testament, all properties and belongings which he owned. It is illogical to conclude that he did not intend to dispose of them by last will and testament. The rational and logical interpretation of the phrase, “The balance of my ownership in stocks, cash, or as desired, shall be split ½ to each ...” is that the testator intended the balance of his entire estate to be given to appellees. This clearly is a residual or universal legacy. They have the option to take the balance of the estate in any form they desired, or whatever form the executor directed.

A reading of the whole testament, in logical order, leads this Court to this interpretation. Any other reading, including that propounded by appellees, leads to “putting words in the testator’s mouth,” or creating riddles where there are none. The particular legacy is free from the expenses of the estate, La.C.C. Art. 1642, and the universal or residual legacy must bear the burden of same. La.C.C. Art. 1480.

Accordingly, the judgment of the lower court is hereby reversed, and this matter is remanded for the filing of a Tableau of Distribution in accordance with this decree. All costs of this appeal to be borne by the estate.

REVERSED AND REMANDED.

      . Appellant does recognize that she is responsible for her pro-rata share of the inheritance taxes,

      . It is especially noted that not only did the testator describe the Florida property, but he attached copies of the titles to same to his last will.


author: WARD, Judge.

text:
    PAN AMERICAN IMPORT COMPANY, INC. v. Katherine Hebert, wife of/and Julius K. BUCK, and Janet Buck, wife of/and Jerry Verrette.
    No. CA-0697.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 6, 1983.
    Rehearing Denied Nov. 22, 1983.

      Mitchell J. Hoffman, Ann Wise, McClos-key, Dennery, Page & Hennesy, New Orleans, for plaintiff, appellee.
    Patrick C. Kelley, New Orleans, for defendants, appellants.
    Before WARD, GULOTTA and BYRNES, JJ.
   WARD, Judge.

A brief description of these three actions is essential to understand the relationships of these parties and to answer the threshold question: what issues and judgments are being appealed? Undisputed evidence introduced in trial showed that Janet Buck Verrette, the daughter of Katherine and Julius Buck, was employed by Pan Am as a cashier from June, 1976, until August, 1977, when she was fired after Pan Am discovered that she had stolen $61,374.62.

In the first of three consolidated suits, Pan Am filed suit in June, 1978, to recover its loss from the theft, and it named as defendants, “Janet Buck, wife of/and Jerry Verrette”. When filing the suit, Pan Am was obviously mistaken in identifying the defendants as husband and wife because Janet Buck and Jerry Verrette were not married until November, 1978, after suit had been filed. That suit was to recover $28,692.94, the amount lost after Pan Am had recovered $25,000 from its bonding company and $7,681.68 from some of its customers.

In answer to that suit, Jerry Verrette raised several exceptions and denied liability, principally because he and Janet were not married when the theft and conviction occurred. Pan Am amended its petition to allege that although Jerry and Janet Ver-rette were not married when the theft occurred, they were liable in solido for the losses. Motions for summary judgment were filed by both Pan Am and Jerry Ver-rette. The Trial Judge granted Pan Am’s Motion for summary judgment against Janet Verrette for $26,142.92, but he denied Jerry Verrette’s motion for summary judgment against Pan Am. The summary judgment against Janet Verrette was not appealed, and after it became executory in May, 1981, Pan Am instituted garnishment against Jerry Verrette’s salary, seizing it as a community asset to satisfy Janet’s separate debt to Pan Am. Jerry Verrette immediately asked for a temporary restraining order or an injunction to stop the garnishment of his wages. Neither was granted, and the Trial Judge permitted the garnishment to continue, but ordered the funds put into an escrow account until he decided Pan Am’s claims against Jerry Verrette and its right to garnishment of his salary.

Jerry and Janet Verrette filed the second of these cases in July, 1981, and petitioned for a separation of their community property, alleging that Jerry Verrette’s interest in the community property was being threatened by the conduct of Janet. Pan Am filed a petition of intervention and opposed the separation of the community; and this action was consolidated with Pan Am’s earlier suit and set for trial.

After the consolidation, Pan Am filed a third suit in January, 1982, seeking a “Declaratory Judgment, Revocatory Action and/or Action in Declaration De Simulation”, naming as defendants Janet’s parents, Katherine and Julius Buck, and Janet and Jerry Verrette and contending that a house on LaMarque Street in New Orleans is owned either by Janet alone or by both Janet and Jerry Verrette, although the conveyance records show that the house is owned by Katherine and Julius Buck. Pan Am alleges that her parents are interposed parties and that the house was purchased with funds which Janet had stolen. Pan Am, therefore, asked that the title to the house be recorded in the name of Janet or in the name of Janet and Jerry Verrette. Pan Am seeks to have either Janet or both she and Jerry recognized as owners so that it can seize the house to satisfy its judgment against Janet. This suit was consolidated with the first two, and the three consolidated cases came to trial on June 16, 1982.

After a trial on the merits, in the first suit, the Trial Judge rejected Pan Am’s theft loss claims against Jerry Verrette, holding that the garnishment of Jerry Ver-rette’s salary was a legitimate seizure of community property but only until the community was dissolved, and not afterward. In the second suit, he ordered a separation of the community, retroactive to the filing of the petition for separation. In the third suit, he held that the house on LaMarque Street is the separate property of Janet Verrette, and he ordered it recorded in her name.

Before considering questions of substantive law, we must first decide what judgments are on appeal. Janet and Jerry Ver-rette appealed only the judgment in the third suit where the Trial Judge held that the LaMarque Street property was the separate property of Janet. Pan Am filed an answer to the Verrette’s appeal, but in its answer, it also seeks to have the judgments in the other two cases reversed and modified. The Verrettes claim that Pan Am cannot, through an answer in one case, appeal adverse judgments in the two other cases. On the other hand, Pan Am claims that because the three suits were consolidated for trial, they are consolidated for appeal, and that through its answer, it may seek modifications of those adverse judgments in the first and second suits.

In Reed v. Pittman, 257 La. 389, 242 So.2d 554 (1971) the Supreme Court considered whether an action taken in one suit would prevent a finding that another suit with which it was consolidated had been abandoned.

We are here concerned simply with the question of whether, when such separate suits are consolidated for trial, steps in the prosecution or defense of the consolidated proceedings may be regarded as taken not only in the principal suit but also in others consolidated for trial with it. We hold that they may.

In a more recent case, U.S. Fire Insurance Company v. Swann, 424 So.2d 240 (La.1982), the Court held:

... that appeals are favored in the law and should be maintained unless a legal ground for dismissal is clearly shown.... Unless the ground urged for dismissal is free from doubt, the appeal should be maintained.

In the instant appeal, there is a serious doubt. All three cases were consolidated for trial, and, although there were three separate judgments, the Trial Judge’s written “Reasons for Judgment” in the three suits was captioned with one title and filed in the record of one suit, not the one appealed, but rather the first Pan Am suit against Janet Buck and Jerry Verrette. Further, the matters are so intertwined that in their appeal of one case, the Ver-rettes designated the records in all three cases to be sent to this Court so that the issues raised could be more readily understood. We believe the principle of Reed stands for the proposition that cases consolidated for trial are to be considered as one, both for trial and appeal. Both Reed and Swann, supra, and the interest of justice dictate that the issues raised by the Ver-rettes and by Pan Am should be decided in this appeal.

Turning now to the first of these consolidated cases, Pan Am contends Jerry Verrette is liable in solido with Janet for her theft. The Trial Judge rendered judgment in favor of Jerry Verrette, and Pan Am asks that we reverse, arguing, first, that Jerry Verrette was a co-conspirator, second, that he “ratified” Janet’s debt by helping her pay it, and, third, that he was unjustly enriched by the theft. We disagree, and we affirm the Trial Court for the following reasons.

The Trial Judge made a factual determination that Jerry Verrette did not conspire to commit the theft, and we have no reason to disturb his findings. Janet was the Pan Am employee, and she, not Jerry, pled guilty to criminal charges. She and Jerry were not married while she was stealing from Pan Am, and even if he knew that she was stealing, nothing in the record indicates that Jerry conspired with her to commit the theft.

Nor do we find merit in the argument that he “ratified” her debt. Janet’s obligation to Pan Am is her separate obligation. Jerry’s assistance in paying it does not mean either that he ratified or assumed the debt or that he became a solidary obli-gor.

We also conclude that Pan Am cannot recover under a theory of unjust enrichment. To recover, there must be: 1) enrichment to one party; 2) impoverishment of the other; 3) a connection between those two elements; 4) no legal cause for the enrichment and impoverishment; and 5) no other remedy at law. Minyard v. Curtis Products, Inc., 251 La. 624, 205 So.2d 422 (1967).

Pan Am has not proven that there is a connection or that there is no other remedy in law. The connection that must be proven is the loss of a specific thing by one and receipt of it by another, or loss of a more or less certain sum by one and receipt of the money or substantially the same amount by another, so that one may fairly say that what is received or lost is one and the same thing, so that the connection may be said to be direct, not inconsequential or speculative. In the instant case, proof that Janet gave Jerry expensive gifts or paid for expensive trips and lavish meals is insufficient to establish that Jerry Verrette was unjustly enriched by funds stolen from Pan Am. We also find Pan Am has adequate remedies in law, a matter we reserve for later discussion. We, therefore, reject Pan Am’s claim that Jerry Verrette is liable in solido.

In the second case, Pan Am asks that we reverse the judgment of the Trial Court, in which he ordered a separation of property between Janet and Jerry Verrette. Pan Am argues that the petition for separation of property should have been denied as a fraud of its rights as a creditor because the separation terminates Pan Am’s rights to garnish Jerry Verrette’s salary. We agree, and we believe the Trial Judge erred when he granted a separation of the community.

Three Articles of the Civil Code are pertinent to our decision:

Art. 2374 Judgment of separation of property

When the interest of a spouse in a community property regime is threatened to be diminished by the fraud, fault, neglect, or incompetence of the other spouse, or by the disorder of the affairs of the other spouse, he may obtain a judgment decreeing separation of property-

Art. 2375 Effect of judgment

A judgment decreeing separation of property terminates the regime of community property retroactively to the day of the filing of the petition, without prejudice to rights validly acquired in the interim between filing of the petition and rendition of judgment.

Art. 2376 Rights of creditors

The creditors of a spouse, by intervention in the proceeding, may object to the separation of property or modification of their matrimonial regime as being in fraud of their rights. They also may sue to annul a judgment of separation of property within one year from the date of the rendition of the final judgment. After execution of the judgment, they may assert nullity only to the extent that they have been prejudiced.

When ordering a separation of the property, the Trial Judge discussed Article 2376, supra in his Reasons for Judgment:

[tjhere is nothing fraudulent about Ver-rette trying to shield his income from a pre-nuptial creditor of his wife. There is utterly no deceit involved. He is attempting to exercise a right conferred by the Code which inevitably is prejudicial to the creditors of the spendthrift spouse. In fact the article is designed to prejudice creditors by placing beyond their reach income and property which would otherwise be available to satisfy their claim.

We disagree with this interpretation. We do not interpret “fraud” to mean either “deceit”, or “misrepresentation of the truth.” If Article 2376 means creditors may intervene only when the petition for separation is deceitful, that is, when the parties have misrepresented the truth because they do not intend to separate the community, then the creditors’ right to intervene is a hollow one because it would be virtually impossible to prove that when the parties filed their petition, they had no intention to separate the property after judgment was rendered. We do not give “fraud” such a limited meaning.

In the context in which the word is used, “fraud” is more synonymous with “bad faith”. We believe “fraud” in this sense has been proven. The financial circumstances of the parties, the timing of the petition for separation, the unusual circumstances giving rise to this debt — all indicate that the sole purpose of separation was to avoid payment of the debt to Pan Am. In sum, when the sole purpose of a petition to separate community property is admittedly to avoid payment of a pre-existing debt, we believe that the petitioners are in bad faith and that separation of the community will unfairly deprive creditors of their rights.

Nonetheless, Jerry Verrette argues that Janet’s misappropriation of funds and her conviction occurred before their marriage and that he, a non-debtor spouse, should not be subjected to garnishment. He relies on the former community property law, in effect at the time of his marriage: community assets could be seized to satisfy the prenuptial debts of the husband but could not be seized to satisfy the prenuptial debts of the wife.

We believe the Legislature changed this when it made extensive changes in the community property laws by Act 709 of 1979. Article 2345, effective January, 1980, specifically provides that a separate obligation may be satisfied during the existence of a community property regime from community property, and it does not distinguish separate debts of the wife from separate debts of the husband. We believe the intent of the Legislature in enacting Act 709 was to eliminate legal differences between spouses by granting equal rights and imposing equal liabilities, and this intent is reflected in Article 2345. Further, when the Act is considered in its entirety, it is clearly meant to apply to those marriages before as well as those after its effective date. Spouses are bound by the current law rather than by the law at the time of their marriage.

The current law, La.C.C. Art. 2364, gives Mr. Verrette an action against Janet for reimbursement:

If community property has been used to satisfy a separate obligation of a spouse, the other spouse is entitled to reimbursement upon termination of the community property regime for one-half of the amount or value that the property had at the time it was used.

This Article, like Article 2345, does not distinguish between husband and wife, and we believe it gives further support to our holding. Since the community property may be used to satisfy a spouse’s separate debts, the spouses may settle their own financial struggles but not remove assets which are available to creditors.

Jerry Verrette also cites Bridgeman and Conway v. Korner Realty Co., 405 So.2d 344 (La.App. 4th Cir.1981) as support for his argument that the judgment of separation of property was correct. We do not believe Bridgeman supports his argument. When the legislature enacted the extensive changes in the community property law, the Acts provided that the changes would become effective January 1, 1980. The Acts further provided that couples living under the existing regime could adopt “a matrimonial regime of their choice” (either separate or community) before January 1, 1980, without court approval. Otherwise, the marital regime would be a community property regime, and Court approval would be required to “modify or terminate a matrimonial regime.” La.C.C. Art. 2329 Herein lies the distinction between Bridgeman and the instant case. The determinative issue of Bridgeman was whether a separation of property which would operate to deprive the creditor of a vested right would be allowed when the spouses, without Court approval, exercised their right before January, 1980, to elect a separate property regime. In the instant case, the Verrettes did not elect a separate regime before January 1, 1980; hence, court approval to change was required, and Pan Am, therefore, had a right to intervene and to prove that the separation would be in fraud of its rights. We perceive a vast difference and conclude that Bridgeman is not controlling of the instant case.

In sum, when Janet was cast in judgment for her debt to Pan Am, although it was her separate obligation, community property assets were available to satisfy her debt, and she and Jerry could not elect a separate regime without court approval. Further, Pan Am had a right to intervene in the suit to separate the property to prevent fraud of its rights under. Because we have determined that the separation of the property is “in fraud” of Pan Am’s rights, we reverse the judgment granting a separation of property and allow the garnishment of Jerry Verrette’s salary to continue.

The final issue in this appeal is the judgment which declared the LaMarque Street property to be the separate property of Janet Buck Verrette. The conveyance office records reflect that on July 22, 1977, Katherine and Julius Buck purchased the property from Mr. and Mrs. Knox. Pan Am alleges that although Mr. and Mrs. Buck are shown as the vendees, the true purchaser was Janet alone or Janet and Jerry Verrette jointly. Pan Am contends the down payment and some monthly mortgage payments came from funds which Janet was stealing from Pan Am. Pan Am claims that the present recordation of the property in the names of Mr. and Mrs. Buck is a sham, and Pan Am seeks to have the property placed in Janet’s name, so that Pan Am may use its judgment against Janet to seize it, once the title and recordation reflect the true ownership of the property.

In their answer to Pan Am, Janet and Jerry Verrette stated:

Par.4 Janet and Jerry Verrette admit that they have resided at 3147 Lamarque Street, but show that they are not the owners of this property, nor have they ever been the owners of this property, and payments that are made on said property constitute rental payments, (emphasis added)

and

Par.14 That the defendant, PAN AMERICAN IMPORT COMPANY, INC., is obviously well aware of what the public records show in this matter and that said records show that Katherine and Julius Buck are the owners of certain property located at 3147 Lamarque Street, and although the depositions of both Katherine and Julius Buck have been taken in which they have stated that they are the owners of this property, that no counter letter exists between them and between Janet and Jerry Verrette....

When rejecting Janet and Jerry’s argument, the Trial Judge wrote in his Reasons for Judgment:

I am convinced that the house at 3147 Lamarque Street belongs to Janet Buck and that title was placed in her parents’ name fraudulently, as interposed parties. The Bucks’ admit that they purchased the house with someone else’s money. They acted neither like owners nor landlords in any way. While the money used in the down payment may have been delivered by [Jerry] Verrett, I do not believe he had the money for the down payment. Janet on the other hand had ready access to Pan American’s receipts. The conclusion is inescapable that Janet put up the money.
Judgment will be entered declaring the house the property of Janet Buck Ver-rette, without prejudice to the rights of Fidelity Homestead Association.

In this appeal, Janet and Jerry Verrette argue that the Trial Judge erred because Pan Am has failed to prove its case, that the LaMarque Street property belongs to Mr. and Mrs. Buck, or in the alternative, that it is the separate property of Jerry Verrette because he made the down payment.

Pan Am argues that the judgment declaring the LaMarque Street property to be Janet’s separate property should be affirmed. Pan Am argues first that since the Bucks have dismissed their appeal, the appeal of Janet and Jerry Verrette should be dismissed because they are not parties aggrieved by the judgment and they do not stand to benefit by a modification of the judgment; second, that since Jerry has claimed that the house is his separate property for the first time on appeal, his claim cannot be considered; finally, that the factual determination by the Trial Court that the property is Janet’s separate property and that the Bucks were interposed parties is a finding of fact that should be affirmed.

We agree with the arguments of Pan Am, and, therefore, we dismiss the appeal of Janet and Jerry Verrette and affirm the judgment of the Trial Court for these reasons.

In First Progressive Bank v. Verret, 357 So.2d 100 (La.App. 4th Cir.1978) this Court noted “the proper party to file the appeal is the aggrieved litigant,” so the initial determination is whether either Janet or Jerry Verrette is aggrieved by the judgment rendered by the Trial Court.

A review of the record shows that 1) the purchase of the house occurred before the marriage of Mr. and Mrs. Verrette; 2) funds were given to Mr. and Mrs. Buck to make a down payment; 3) the Verrettes reside in the house; 4) the Verrettes make monthly payments on the note; 5) they characterize the payments as rent, but the Bucks do not show rental income; 6) the Bucks assign the I.R.S. interest deduction to the Verrettes. Considering these facts, we agree with the Trial Judge: Janet’s parents were interposed parties.

We also conclude that Janet Ver-rette is not aggrieved by a judgment declaring her residence to be her separate property. It is difficult to understand how a party who is declared owner of the property is ever aggrieved, for even if the property is seized and sold to satisfy Janet’s debt, she is not aggrieved, rather she benefits from the reduction of her liabilities. Her appeal must be dismissed.

The appeal of Jerry Verrette must also be dismissed. He is asserting his claim that the house is his separate property for the first time on appeal, and this Court cannot now consider that claim. Further, Jerry Verrette rejected ownership of the house in his original answer to Pan Am’s petition. The law is clear that “on factual matters a party is bound by his pleadings...” State v. Ward, 314 So.2d 383 (La.App. 3rd Cir.1975) writ denied, 319 So.2d 440 (La.1975). Having stated in his answer that he is not the owner of the LaMarque Street property, he is not aggrieved by a judgment which vests title to property in Janet Verrette rather than Mr. and Mrs. Buck. Since Mr. and Mrs. Buck are the real parties at interest who may have been aggrieved by the judgment of the Trial Judge and since they have abandoned their appeal, we dismiss Janet and Jerry Verrette’s appeal and affirm the judgment of the Trial Judge holding the LaMarque Street property is Janet Buck Verrette’s separate property.

All costs of trial and this appeal will be assessed equally to Pan Am and to Mr. and Mrs. Verrette.

Affirmed in part.

Reversed in part.

      . For a full discussion of the issue, see “Unjustified Enrichment in the Civil Law and Louisiana Law”, by Barry Nicholas, 36 Tul.L.Rev. 605, 37 Tul.L.Rev. 49, particularly p. 55.

      . See Black’s Law Dictionary, definition of “fraud”. Admittedly, Black’s defines fraud as “an intentional perversion of the truth-” But it goes further and states “bad faith” and “fraud” are synonymous, and also synonyms of ' dishonesty, infidelity, faithlessness, perfidy, unfairness, etc.

      . Acts 921 of 1981 and 282 of 1982 gives the spouses the right to partition the community without court approval. We do not have to decide their applicability because it is clear a partition is effective as to third parties only when registered in the conveyance office, which was not done in the instant case.


author: GUIDRY, Judge.

text:
    STATE of Louisiana, Plaintiff-Appellee, v. John Nekita SLATE, Defendant-Appellant.
    No. CR83-118.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 12, 1983.
    William D. Dyess, Many, for defendant-appellant.
    James L. Davis, Dist. Atty., Dennis Stewart, Asst. Dist. Atty., Many, Abbott J. Reeves, Asst. Dist. Atty., Gretna, for plaintiff-appellee.
    Before GUIDRY, CUTRER and DOU-CET, JJ.
   GUIDRY, Judge.

On November 17,1982, the jury, by unanimous verdict found the defendant, John Nekita Slate, guilty of simple robbery, in violation of LSA-R.S. 14:65. He was thereafter declared an habitual offender and sentenced to ten years at hard labor in the custody of the Louisiana Department of Corrections. From this conviction and sentence the defendant has perfected this appeal urging that the trial court committed the following errors:

1. In failing to properly apply the sentencing guidelines set forth in Article 894.1 of the Louisiana Code of Criminal Procedure.
2. In failing to state for the record the considerations taken into account and the factual basis therefore in imposing sentence on the defendant, as required by Article 894.1(C) of the Louisiana Code of Criminal Procedure.
3. In imposing a sentence which, under the circumstances applicable to the defendant, is excessive and an arbitrary infliction of severe punishment resulting in cruel and unusual punishment of the defendant.
4. The defendant was not given adequate notice, under the provisions of Article 768 of the Code of Criminal Procedure, as to when, where and to whom certain inculpatory statements, confessions or admissions were made.

We consider these assignments of error in reverse order.

ASSIGNMENT OF ERROR NO. 4

In this assignment, the defendant contends that the trial judge committed reversible error in admitting alleged inculpatory statements over objection that the notice required by LSA-C.Cr.P. Art. 768 had not been given.

The statement in question as testified to by Chief Lambert and corroborated by Officer Rainer was elicited from the defendant during his interrogation at the police station. The statement, allegedly erroneously-admitted, is as follows:

“BY MR. STEWART:
Q. Chief Lambert, I remind you that you are still under oath.
A. Yes, sir.
Q. After you read the defendant his rights, and gave him his rights, did the defendant at any time admit that he had committed this offense?
A. He denied committing the offense.
Q. He didn’t make any inculpatory statements at all?
A. He wanted to pay the lady the money back.
Q. Okay. What exactly did he say?
A. He said he would be willing to give that money back to her, you know, the money she had lost, he would give the money back to her that she lost, you know, if charges wouldn’t be pressed, you know, or if they’d drop it.”

The inculpatory nature of this statement is questionable. On one hand, the defendant denies committing the offense, thus exculpating himself. On the other hand, he offers to pay back the money lost, creating an inference of guilt. Nonetheless, because a trier of fact might ultimately draw an inference of guilt from the statement, it will be treated as inculpatory.

LSA-C.Cr.P. Art. 768 provides as follows: “Unless the defendant has been granted pretrial discovery, if the state intends to introduce a confession or inculpatory statement in evidence, it shall so advise the defendant in writing prior to beginning the state’s opening statement. If it fails to do so a confession or inculpatory statement shall not be admissible in evidence. Amended by Acts 1982, No. 735, § 1.”

The record reveals that there was no pretrial discovery. Prior to beginning its opening statement, the State filed a notice in writing of its intention to introduce confessions or inculpatory statements and delivered such notice to the defendant. A copy of the notice filed by the State is attached to this opinion as “Appendix A”. Counsel for defendant did not object to the insufficiency of such notice at that time. After both opening statements were concluded and the State was examining its second witness, counsel for defendant, anticipating the introduction of the aforementioned statement, asked that the jury be removed and objected to the admission of any incul-patory statements made by the defendant. The basis of his objection was that the notice given him prior to the State’s opening statement did not comply with the requirements of Article 768. Defendant’s objection was overruled and introduction of the statement was allowed.

On appeal, the defendant asserts that this was error because the Article 768 notice was insufficient and the objection to the admissibility of the inculpatory statement was timely. In response, the State urges that defendant’s objection was untimely and that the notice was sufficient.

The State first contends that the trial judge properly overruled the objection, in that, the objection came too late, i.e., it was not contemporaneous with the filing of notice as required by LSA-C.Cr.P. Art. 841. We find that defendant’s objection was timely.

In State v. Palmer, 251 La. 759, 206 So.2d 485 (1968), the Supreme Court specifically indicated that the proper time to object to inculpatory evidence, because not preceded by an Article 768 notice, was at the time the testimony was given.

We also find that the Article 768 notice filed by the State was insufficient. The defendant correctly relies on State v. Sneed, 316 So.2d 372 (La.1975) for the proposition that a general notice, as here, that the State intends to use unspecified confessions or inculpatory statements does not comply with the requirements of Article 768. The notice in this case is similar to that involved in Sneed and for the reasons therein stated, we find that it does not comply with Article 768. Furthermore, unlike Sneed, the record in this case does not reflect that the accused had actual notice by other means (such as by motion to suppress, motion for oyer or bill of particulars) of the State’s intent to use inculpatory statements. See State v. Sneed, supra, cases cited therein, and State v. Williams, 416 So.2d 914 (La.1982).

Since the record reflects timely objection and the State’s failure to comply with the provisions of LSA-C.Cr.P. Art. 768, the trial court erred in admitting the aforementioned statement in evidence. Although error, we are convinced that the defendant’s rights were not substantially prejudiced by the admission of this evidence. The inculpability of the statement objected to is questionable and the other evidence of defendant’s guilt was so strong that we are convinced that there is no reasonable possibility that the evidence complained of contributed to his conviction. We, therefore, conclude that the error was harmless beyond a reasonable doubt and affirm the defendant’s conviction. See State v. Williams, supra; State v. Smith, 401 So.2d 1179 (La.1981).

ASSIGNMENTS OF ERROR NOS. 1, 2 AND 3

The defendant contends that the sentence imposed by the trial court is excessive and violative of Art. 1, § 20 of the Louisiana Constitution of 1974. He also contends that the trial judge failed to comply with LSA-C.Cr.P. Art. 894.1, which provides guidelines to be followed by the trial judge in imposing sentence. Our careful review of the record convinces us that it is necessary to remand this ease to the trial court for re-sentencing in compliance with LSA-C.Cr.P. Art. 894.1. Because resentencing is necessary, we do not reach the issue of excessiveness of the sentence imposed.

LSA-C.Cr.P. Art. 894.1 enumerates aggravating and mitigating factors to be considered by the trial court in imposing sentence, and requires that the trial judge “state for the record the considerations taken into account and the factual basis therefor in imposing sentence.” The purpose of the statute is to afford a reviewing court some insight into the reasoning process of the sentencing judge, so that the propriety of the sentence can be better evaluated. State v. Price, 403 So.2d 660 (La.1981). The trial judge need not state for the record his consideration of each of the aggravating and mitigating circumstances enumerated in the article. However, the record must reflect that the judge did consider these guidelines in particularizing the sentence to the defendant. State v. Quebedeaux, 424 So.2d 1009 (La.1982); State v. Guiden, 399 So.2d 194 (La.1981). The record should reflect that the trial court considered not only the seriousness of the crime and the defendant’s criminal history, but also the defendant’s personal history (age, mental status, dependents, family ties, employment record, emotional and physical health) and his potential for rehabilitation. State v. Quebedeaux, supra; State v. Jones, 398 So.2d 1049 (La.1981). The judge should indicate that he considered not only the factors militating for incarceration, but also any factor mitigating against it. State v. Ray, 423 So.2d 1116 (La.1982); State v. Franks, 373 So.2d 1307 (La.1979).

In the instant case, the trial court’s reasons for imposing sentence do not adequately reflect whether the factors listed in LSA-C.Cr.P. Art. 894.1 were considered. In imposing sentence, the trial court simply stated:

“The Court was involved in the previous cases in which the defendant plead guilty or was convicted of a felony. And has had ample opportunity to review previous pre-sentence investigations that were submitted to the Court in those cases, which are relatively recent.
The Court feels that on the basis of that information, the Court is prepared to impose sentence at this time.”

The trial judge failed to elucidate the factors evidenced in the pre-sentence investigation reports which were submitted to the court in connection with previous cases in which the judge was involved. These reports were not made a part of the appeal record. Further, the record does not reflect the nature of defendant’s previous convictions or that the trial court considered the information contained in the pre-sentence reports in light of the sentencing guidelines set forth in LSA-C.Cr.P. Art. 894.1. In short, the inadequacy of the reasons stated by the trial judge and the absence from the record of any information about the defendant make it difficult if not impossible for us to evaluate the appropriateness of this particular sentence. State v. Price, supra. From the record before us, we are unable to determine whether the trial judge simply failed to consider the factors set forth in Article 894.1 or whether he considered them, but found none sufficient to warrant a shorter sentence. Under these circumstances, we find it necessary to remand this matter for resentencing.

For the above and foregoing reasons, the defendant’s conviction is affirmed, but the sentence imposed is vacated; and the case is remanded to the district court for resen-tencing.

CONVICTION AFFIRMED; REMANDED FOR RESENTENCING.

APPENDIX “A”

STATE OF LOUISIANA VERSUS JOHN NEKITA SLATE

DOCKET NUMBER: 30,977 ELEVENTH JUDICIAL DISTRICT SABINE PARISH, LOUISIANA

TO: John Nekita Slate and his attorney of record

Please take notice that pursuant to Article 768 of the Louisiana Code of Criminal Procedure, the State of Louisiana gives notice of intention to use or introduce into evidence during the trial of this case, remarks, admissions, inculpatory statements and confessions made by the defendant, John Nekita Slate, to the investigating officers and/or other persons.

JAMES LYNN DAVIS

District Attorney 11th Judicial District State of Louisiana

CERTIFICATE

I hereby certify that the foregoing notice has been served on the defendant by delivering to the defendant and his attorney of record, , copies of the foregoing notice on this 17th day of November_ 1982, at Many. La.


author: DOUCET, Judge.

text:
    STATE of Louisiana, Plaintiff-Appellee, v. Eddie WILLIAMS, Defendant-Appellant.
    No. CR83-108.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 12, 1983.
    Rehearing Denied Nov. 28, 1983.
    Michael Johnson, Cottonport, for defendant-appellant.
    J. Edward Knoll, Dist. Atty., and David Lafargue, Asst. Dist. Atty., Marksville, for plaintiff-appellee.

      Before GUIDRY, CUTRER and DOU-CET, JJ.
   DOUCET, Judge.

The defendant, Eddie Williams, was charged with forcible rape (R.S. 14:42.1). Subsequently, after trial by a jury of twelve, he was convicted of attempted simple rape. Defendant now appeals.

No assignments of error were perfected as required by La.C.Cr.P. Art. 844. Therefore, this court is limited .to a review of the record for errors that are discoverable by a mere inspection of the pleadings and proceedings. C.Cr.P. Art. 920; State v. Jackson, 332 So.2d 211 (La.1976); State v. Gerald, 325 So.2d 574 (La.1976).

In brief, defendant presents two issues: (1) the propriety of jury instructions concerning responsive verdicts and sentences; and (2) sufficiency of the evidence that the victim was incapable of resisting by reason of stupor or abnormal condition of mind.

With respect to the first error assigned in brief, we note that “Attempted Simple Rape” is not responsive to a charge of “Forcible Rape” under La.C.Cr.P. Art. 814. An unresponsive verdict is error patent on the face of the record and is reviewable on appeal despite absence of an objection. State v. Turnbull, 377 So.2d 72 (La.1979). However, the record reveals that defense counsel requested inclusion of attempted simple rape as a responsive verdict in hope of his client receiving a lesser sentence. He cannot now be heard to argue that the conviction was not responsive to the indictment. Indeed, as aforementioned, he has not specified any assignments of error as required by La.C.Cr.P. Art. 920.

Moreover, the amendment to La.C. Cr.P. Art. 814 designating the responsive verdicts to a charge of forcible rape was not in effect at the time of the offense herein. Under said circumstances, the responsive verdicts to the crime of forcible rape must be determined in light of the statutes requiring responsive verdicts to be either guilty, guilty of a lesser included grade of offense or not guilty. La.C.Cr.P. Art. 815. Accord: State v. Turnbull, supra. Attempted simple rape has been found to be responsive to a charge of attempted forcible rape pursuant to La.C.Cr.P. Art. 815 (now superceded by La.C.Cr.P. Art. 814). State v. Turnbull, supra. See also: State v. Miller, 237 La. 266, 111 So.2d 108 (1959); 20 La.L.Rev. 606 (1960). Pursuant to Turnbull we find that attempted simple rape was responsive to defendant’s indictment for forcible rape.

The second error assigned in brief is totally without merit. The record indicates the defendant volunteered the victim a ride home from a bowling alley. Instead, he escorted the victim to a secluded area and raped her. At trial the victim testified as to her acts of resistance and resultant scratches and bruises. Her testimony in this regard was corroborated by the coroner’s report which also indicated the sexual act had been completed. A review of the record reflects that the victim was prevented from resisting the act due to force and threats of physical violence under circumstances where she reasonably believed that further resistance would not prevent the rape.

Furthermore, the fact that the defendant actually completed the crime does not preclude a conviction for attempt thereof. See: La.R.S. 14:27. The defendant cannot escape conviction by showing he committed a more serious offense inasmuch as failure is not an essential element of attempt.

For the reasons set forth hereinabove, the defendant’s conviction and sentence are affirmed.

AFFIRMED.

       NOTE: The appellant, does not contest the unresponsiveness of the verdict returned, but instead, objects to responsive verdicts in general as the multitude of choices offered arguably lessens the likelihood of a not guilty verdict, thereby diminishing the reasonable doubt standard. For the reasons assigned above, this issue will not be addressed.