Judge Garrison

[Richard Coleman]

The defaming and vilification of Jim Garrison will probably never cease completely. Not as long as there are tools like Reitzes, and McAdams etc., and others to succeed them down through the years. But so far, nobody has thought to take a look at Garrison's career as a judge for La's 4th Circuit Appeals Court, at least as far as I know. I am currently compiling a listing of cases whose decisions he either wrote, dissented from or concurred with. In view of attacks on him like that of Nicholas Katzenbach ("He's a nut") I offer here a sample of Judge Garrison's performance. Readers can judge for themselves whether he shows signs of being a megalomaniac, "nut" or any of the other choice slurs cast about him. Much more to come.

Voelker v. Voelker, 488 So. 2d 1204 - La: Court of Appeals, 4th Circuit 1986


488 So.2d 1204 (1986) Charles Albert VOELKER v. Cynthia Ann Gervais VOELKER.


No. CA-4852. Court of Appeal of Louisiana, Fourth [B]Circuit.[/B]
May 12, 1986. Rehearing Denied June 18, 1986. 1205*1205 Charles P. Ciaccio, Wessel, Bartels & Ciaccio, New Orleans, for plaintiff-appellee.

A. Scott Tillery, Tillery & Tillery, Chalmette, for defendant-appellant.

Before GARRISON, KLEES and WARD, JJ.

GARRISON, Judge.

This is an appeal from a judgment of the district court dated June 7, 1985 providing as follows:

"IT IS ORDERED, ADJUDGED AND DECREED that Cynthia G. Voelker be and she is hereby granted the care, custody and control of the minor children born of the marriage, namely, Cherie Anne Voelker, Charles Albert Voelker, Jr. and Clint Andrew Voelker, subject to reasonable visitation in favor of Mr. Voelker upon his giving reasonable notice to Mrs. Voelker.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Cynthia G. Voelker be and she is hereby granted the use and occupancy, pending partition of the community property, of the family home located at 1209 Missouri Street, Chalmette, Louisiana.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Charles Albert Voelker be and he is hereby ordered to pay unto Mrs. Voelker 33% of his unemployment compensation benefits plus 33% of his net profits or income from any other source, as alimony pendente lite; and in addition to pay unto Cynthia G. Voelker 7% of his unemployment compensation benefits plus 7% of net profits or income from any other source as child support.

IT IS ORDERED that Charles Albert Voelker shall account to Mrs. Voelker on the 15th day of each month, commencing June 15, 1985, for net profits and income from any source, and that all child support and alimony payments shall be made on the 15th of each month.

IT IS FURTHER ORDERED that Charles Albert Voelker shall pay the mortgage note on the family home at 1209 Missouri Street, Chalmette, and that Cynthia G. Voelker shall pay all utilities for the said residence."

The trial court additionally provided the following oral reasons for judgment:

"THE COURT:

This is a case like the average case. The usual case. There's not enough money to go around. We have three children here that will suffer for the sins of their parents. I'm glad it's on their conscience and not on mine.

The wife will be granted the use of the family home. She will be granted the care, custody and control of the minor children. The wife claims that there's no problem with visitation to the father. I hope there will continue not to be any problems.

The father will be granted the rights of reasonable visitation upon giving reasonable notice to the mother. You cannot expect to go over there and just pick them up whenever you feel like it. He has to give notice to make sure they're ready, and see if they have any other commitments. The father will pay 33 percent of his unemployment pluss 33 percent of any net profits or income or net income from any other sources as alimony pendente lite.

Mr. Voelker will pay seven percent of his unemployment and plus seven percent of any net profits of any enterprise or seven percent of any net proceeds received from any source whatsoever as child support for his three minor children.

He'll have to account to his wife on the 15th day of each month commencing 1206*1206 June 15th, '85 for all of his outside enterprises such as trawling, crabbing, doing work of any character, carpentry, et cetera, plus he'll pay the note on the family home. He'll not be required to pay any of the utilities, and the wife will have to pay that out of whatever she receives. There's just not enough money to go around.

Mr. Voelker is out of work, and if he were living with his wife, she'd have to suffer that loss with him together.

Of course, I know it would be a lot easier then. If his girlfriend gives him any money, he's got to give her 40 percent of that. Any bills he can't pay, they can agree to sell some of the community property such as the boat, truck, anything else, and he can go see the referee in bankruptcy at 500 Camp Street. Prepare the Judgement, Mr. Tillery."

From that judgment, Mrs. Voelker appeals.

On appeal Mrs. Voelker argues that the trial court erred in phrasing the award in percentages instead of providing for a fixed amount.

In Zimmer v. Lavista, 367 So.2d 1312, 1313 (La.App. 4th, 1979) this court stated:

"However, we reject plaintiff's contention that the amount of the award for child support should be mathematically proportioned to her salary's percentage of the total income of the parties. This contention ignores many factors which are not susceptible to computation with mathematical exactitude, including an amount every individual needs for basic living expenses before reaching a point where there is some disposable income."

In Clynes v. Clynes, 450 So.2d 372, 375 (La.App. 4th, 1983), Judge Klees, as organ of this court, quoted:

"`... it should be borne in mind that calculation of child support by a mathematical formula is impossible and that all of the varying facts and circumstances of each individual case must be taken into consideration in fixing the amounts awarded.' Fall v. Fontenot, 307 So.2d 779, (La.App.3rd Cir.1975)."

Thus it is apparent that the trial court judge committed an error of law in phrasing his judgment in mathematical percentages.

After physical separation and prior to the hearing, Mr. Voelker was voluntarily paying his wife $600 a month and paying all of the bills in conjunction with their marriage, including house note, utilities, private school tuition, dancing lessons and cub scout costs, clothing, transportation, all credit card indebtedness, and two bank loan payments on his shrimp trawler.

Three weeks to a month before the hearing, Mr. Voelker was both "laid off" from his job of 10 years as a building inspector and injured his finger which prevents him from working. He presently receives $205 weekly or $888.33 monthly in unemployment compensation. He also owns a 30 foot shrimp trawler and has trawled in the past for extra income. He also has worked "side jobs" as a construction supervisor in the past for extra income. It is his testimony that his injured finger prevents him from engaging in any of these various occupations.

Mr. Voelker presently lives with either his mother or his female friend, Kelly Stonebreaker. He makes no financial contribution to either household and lives at both totally rent free. He testified that his current expenses total $575.00 a month. Accordingly, he has monthly disposable income on unemployment alone of $313.33. In addition, the trial court apparently believed, as do we, that Mr. Voelker has additional shrimp trawling income.


Mrs. Voelker, who is a traditional non-working housewife, has had two jobs since the separation. Both "jobs" were of the day-to-day worker variety for a market research company, filling out questionnaires in shopping malls. The first "job" was from 10:00 a.m. to 9:00 p.m. and paid $100.00. The second job also ran from 10:00 a.m. to 9:00 p.m. and paid $40.00 for the day.

Mrs. Voelker may or may not be receiving any income from the community home 1207*1207 upon partition of the community because the house was purchased shortly before their marriage as his separate property.

Because the trial court judge committed an error of law in writing percentages into the judgment, it is now up to this court to state a fixed dollar amount. Because he was voluntarily paying $600.00 a month before, we find the amount of $350.00 a month as alimony and $150.00 a month as child support appropriate.


For the reasons discussed, the judgment of the district court is amended by deleting paragraphs 3 and 4 and in inserting the following, and, as amended, is affirmed.

"IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that Charles Albert Voelker be and hereby is ordered to pay to Cynthia G. Voelker the sum of $350.00 per month in alimony and $150.00 per month in child support, both due and payable by and on the 15th of each month."

AMENDED AND AFFIRMED.

[Richard Coleman]

This one is a lawsuit between two businesses involving a foreclosure. Garrison wrote a dissent which follows the majority decision.

Plumbing Supply House v. Century Nat. Bank, 440 So. 2d 173 - La: Court of Appeals, 4th Circuit 1983

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 [B]Circuit.[/B]
October 6, 1983. Rehearing Denied November 22, 1983. Writs Denied January 27, 1984. 174*174 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 appellee, 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 175*175 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 Girards 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. We disagree.


176*176 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 case. 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 Girards 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 executory 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 177*177 instituted was sufficient to support executory 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 uncontested 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 178*178 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 courtunheeded and unhearda 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 suspensively, 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.[SUP][1]

[/SUP]

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.


179*179 Article 2315 does not contemplate conditional responsibility and the duty to repair damage caused is not contingent upon conditions.[SUP][2][/SUP] That Article should not be regarded as contemplating the requirement of contingent necessities (simply because executory process appears to have been the instrument of damage) such as first paying homage to injunction or annulment or suspensive 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.[SUP][3][/SUP] 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.[SUP][4][/SUP] 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).[SUP][5]

[/SUP]

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 casuallyin the face of apparent fault by the defendant and possible damages of millions of dollars to the plaintiffdoes 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.
[1] Hightower v. Dr. Pepper Bottling Company of Shreveport, Inc., 117 So.2d 642 (La.App. 2nd Cir.1959).
[2] Article 2315 does not contemplate conditional nor contingent responsibility. Marine Ins. Co. v. Strecker, 234 La. 522, 100 So.2d 493 (1958).
[3] Hightower v. Dr. Pepper Bottling Company of Shreveport, Inc., supra.
[4] Graci 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).
[5] Guilyot v. Del-Gulf Supply, Inc., 362 So.2d 816 (La.App. 4th Cir.1978).

[Jim DiEugenio]

Thanks for this.

I wonder, if anyone is doing a volume on this subject.

Garrison seems to have been a very thoughtful, careful, and insightful judge.

[Dawn Meredith]

Thanks for this.

I wonder, if anyone is doing a volume on this subject.

Garrison seems to have been a very thoughtful, careful, and insightful judge.

What a lovely idea. Thanks for doing this.

[Richard Coleman]

Wally BARKLEY
v.
LOUISIANA STATE RACING COMMISSION.
No. CA-5906.

Court of Appeal of Louisiana, Fourth Circuit.
April 9, 1987.

Stacey Moak, Cicero & Moak, Baton Rouge, for plaintiff-appellant.

William J. Guste, Jr., Atty. Gen., Robert A. Barnett, John E. Jackson, Jr., Asst. Atty. Gen., New Orleans, for defendant-appellee.

Before GULOTTA and GARRISON, JJ., and PRESTON H. HUFFT, J. Pro Tem.

GARRISON, Judge.

The appellant, Wally Barkley, was the holder of a trainer's license issued by the defendant, the Louisiana State Racing Commission. On April 30, 1985, a post race urine analysis of two horses trained by appellant tested positive for a prohibited drug, apomorphine. On May 10, 1985 a hearing was held before the Racing Stewards and for financial reasons, the appellant waived his right to have another test conducted on the remaining urine samples of the two horses. Therefore, in accordance with a commission rule stating that a trainer is the absolute insurer of the condition of horses trained by him, the appellant's trainer's license was suspended, effective immediately. Appellant then suspensively appealed the Steward's ruling to the Racing Commission. The deposit required for this appeal was $1,000.00, $500.00 for each ruling. At the Commission hearing, the appellant offered no evidence. Therefore, because the appellant had prior violations of the prohibited medication rule, the Commission revoked appellant's license in accordance with a Commission rule allowing for penalty enhancement for persons with multiple violations of that rule.

The appellant then appealed to the State District Court for Orleans Parish. After reviewing the evidence and memoranda, the trial judge affirmed the decision of the Louisiana State Racing Commission. In his reasons for judgment, the trial judge stated that the rights of the petitioner were not violated and that the rules of the Louisiana State Racing Commission are constitutional, are not contradictory and are not violative of state law. Appellant now appeals the decision of the district court.

On appeal, the appellant attacks the constitutionality of several Louisiana State Racing Commission Rules. Specifically, appellant claims that the following rules amount to a denial of due process of law:

1) Rule 11-6:53.37-1, which requires the immediate deposit of $300.00 for a referee urine analysis;

2) Rule 11-6:56, which requires the immediate deposit of $500.00 for a suspensive appeal of the decision of the Racing Stewards to the Racing Commission;

3) Rule 11-6:54.7, which provides for an enhanced penalty for the offender if he has prior violations of the medication rule.

In a recent case before this Court, Hall v. Louisiana State Racing Commission, 505 So.2d 744 (La.App. 4th Cir.1987), the plaintiff challenged the constitutionality of the rules challenged by the present plaintiff. However, neither the trial court nor this Court addressed these issues because both courts found that the plaintiff's due process rights had been violated in another way. Specifically, this Court agreed with plaintiff's argument that the suspension of his license based upon nothing more than the commission's in globo introduction of evidence, without any foundational testimony or opportunity for cross-examination, deprived him of his right to due process. This Court stated in the Hall decision that:

"By this holding we do not intend to imply that hearsay evidence is inadmissible, or that documentary evidence is incompetent in an administrative hearing. Certainly they can be used, along with other competent evidence to reach a true factual finding. However, where a finding is based solely on this type of evidence and where an adverse party is not able to inquire into the very basis of that evidence, both substantive and procedural due process is violated. At the very least Hall should have had the opportunity to cross-examine the only evidence used against him."

As in the case of Norman Henry Hall, the present plaintiff's trainer's license was suspended solely on the basis of the Commission's in globo introduction of documentary evidence. Although the plaintiff does not allege insufficiency of evidence as a specification of error in his appeal, this Court is empowered to render any decision which is just, legal and proper upon the record on appeal. LSA-C.C.P. art. 2164. Therefore, because we find that the plaintiff's right to due process was violated, we remand this case to the Commission for rehearing with both parties allowed the opportunity to introduce evidence after establishing a proper foundation and to cross-examine that evidence.

Because this case is being remanded to the Commission for rehearing, we pretermit a ruling on the constitutionality of the Racing Commission rules challenged by the plaintiff.

REMANDED FOR REHEARING.

[Richard Coleman]

STATE of Louisiana
v.
Sean A. McDONALD.
No. KA-6026.

Court of Appeal of Louisiana, Fourth Circuit.
February 12, 1987.

Birch P. McDonough, McDonough & McDonough, New Orleans, for defendant-appellant.

Before SCHOTT, GARRISON and KLEES, JJ.

GARRISON, Judge.

The defendant, Sean A. McDonald, was charged by bill of information with possession of marijuana with intent to distribute, a violation of LSA-R.S. 40:966 A.[1] The defendant pled guilty to this offense and requested that the trial judge order a presentence investigation report prior to sentencing the defendant. This request was granted by the trial judge. After the trial judge received this report from the Department of Corrections which indicated a prior conviction in another state for possession of cocaine, he sentenced the defendant to serve two years at hard labor with credit for time served. Defendant appeals his sentence.

On appeal, the defendant argues that his sentence should be set aside because the trial judge did not adequately comply with the requirements of Louisiana Code of Criminal Procedure Article 894.1. Specifically, he contends that the trial judge did not "state for the record the considerations taken into account and the factual basis therefor in imposing sentence." LSA-C. Cr.P. art. 894.1©.

This court has stated that the requirements of Article 894.1 are satisfied, without the necessity for a remand, where evidence in the record clearly shows an adequate factual basis for the sentence. State v. Hawthorne, 454 So.2d 285 (La.App. 4th Cir.1984), writ denied 457 So.2d 1201 (La. 1984). The record in this case details the nature of the offense with which the defendant was charged and the pre-sentence investigation report prepared by the Louisiana Department of Corrections at the trial court's request details the personal history of the defendant including a prior conviction on a drug related offense. The trial judge's reasons reflect that he considered all of this information in his sentencing decision. Therefore, because the record reveals that the trial judge carefully considered the circumstances of the offense and the character of the offender in this case, we find adequate compliance with Article 894.1.

For these reasons, we affirm the defendant's conviction and sentence.

AFFIRMED.

[1] A person convicted of possession of marijuana with intent to distribute may be sentenced to a term of imprisonment at hard labor for not more than ten years and may be ordered to pay a fine of not more than fifteen thousand dollars.