author: SUSAN M. CHEHARDY, Judge.

text:
    HOSE SPECIALTY & SUPPLY MANAGEMENT CO., INC. v. Steve GUCCIONE.
    No. 03-CA-823.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 30, 2003.

      William H. Daume, Terrytown, LA, for Defendant-Appellant, Steve Guccione.
    Denise L. Martin, Degan, Blanchard & Nash, New Orleans, LA, for Plaintiff-Ap-pellee, Hose Specialty & Management Co., Inc.
    Panel composed of Judges THOMAS F. DALEY, SUSAN M. CHEHARDY and WALTER J. ROTHSCHILD.
   SUSAN M. CHEHARDY, Judge.

This is a suit by an employer for an injunction to enforce nondisclosure and noncompetition clauses contained in an employment contract. The former employee appeals an adverse judgment that enjoins him from performing or participating in various acts that would compete with Hose Specialty’s business. We vacate in part, affirm in part, and remand.

Hose Specialty & Supply Management Company, Inc. (formerly Hose Specialty & Supply, Inc.) filed suit against Steve Guc-cione on April 24, 2003, seeking injunctive relief prohibiting Guccione from “disclosing the confidential and proprietary customer and pricing lists of Hose Specialty to any person, firm, corporation, or association, from soliciting Hose Specialty’s customers, and/or from using Hose Specialty’s confidential pricing lists in connection with his employment.” The petition made the following allegations:

Hose Specialty is in the business of supplying industrial hose to its customers. Its specialized customer list is confidential and is crucial to its business. Guccione was employed by Hose Specialty for approximately six years at its corporate offices in Belle Chasse, Louisiana. His duties included contacting customers on Hose Specialty’s customer list and selling Hose Specialty’s products to the customers.

lain connection with his employment Guccione entered into an Employment Agreement, in which he acknowledged that Hose Specialty’s customer list was a valuable proprietary asset, he agreed not to disclose the customer list to any person, firm, corporation or association, and he agreed not to solicit any customers of Hose Specialty within all 64 parishes in Louisiana, as well as certain counties in Mississippi and Alabama, for one year from his termination of employment.

On or about April 14, 2003 Guccione left Hose Specialty’s employ. Hose Specialty alleged that after his departure Guccione used Hose Specialty’s proprietary customer list and pricing list to solicit business from Hose Specialty’s customers, in violation of the employment agreement.

Hose Specialty asserted it would suffer immediate and irreparable injury if Guc-cione were allowed to use the confidential proprietary information to compete with Hose Specialty. Hose Specialty sought a temporary restraining order and injunctive relief against Guccione to enjoin him from using the confidential information.

The court issued a temporary restraining order and set a hearing for May 8, 2003, at which the only witnesses were the president of Hose Specialty and the defendant.

TESTIMONY

James E. Strickland testified he is president of Hose Specialty & Supply, which he described as a hose distributorship mainly servicing the oil-service sector of the oil industry. It sells hoses to oil companies, oil service companies and supply companies. Strickland said that over the 23 years Hose Specialty has been in business, the company has developed a customer list through personal contact with outside and inside salespeople, who develop relationships from working individually with particular customers and servicing the clients. Strickland said the 1 ¿customer list is ever-changing and is developed through sales to customers or personal contact by outside salespeople.

Strickland testified that the list is confidential and it is maintained in the database of the company’s main computer system and in the laptop computer system of every salesperson. Each salesperson’s computer has a list of the customers that salesperson is in charge of servicing. The salespeople make daily entries on a sales management database through the laptop system. The laptops are the property of Hose Specialty. When a salesperson leaves, the laptop computer remains in Hose Specialty’s possession.

Strickland testified further that his salespeople, as a condition of their employment, enter into an employment agreement that contains a customer confidentiality agreement. When the company hires new salespeople, they are provided with a customer list, which consists of a base of customers on whom they call on a daily, weekly or monthly basis, depending on the customer’s requirements. The salespeople also are responsible for developing additional customers. Commission reports are generated from the customer list in the computer system and the commissions from those sales are part of the salespeople’s compensation.

According to Strickland, Steve Guccione began employment with Hose Specialty in early 1997. He was required to sign an employment agreement and he was provided with a list of already-established customers to whom he was required to provide service. Strickland said Guccione was not fired, but quit the company without telling Strickland why he was leaving. Strickland said that although Guccione gave the company two weeks notice, Guc-cione was paid two weeks’ vacation pay in lieu of remaining for the notice period. Strickland stated, “It’s not Imprudent to have an outside salesperson that’s going to be leaving to be calling on your customers for the next two weeks. It just doesn’t make good business sense.”

Strickland testified further that after his departure, Guccione contacted Hose Specialty customers to solicit business from them. Strickland learned of it when customers contacted the company’s inside salespeople to inform them Guccione had been soliciting their business and telling them he could undercut the prices offered by Hose Specialty.

According to Strickland, if Guccione continues to solicit business from Hose Specialty’s customers, the company would incur monetary damage, although it would be “hard to put a figure on it as it progresses in time.” Strickland estimated there were as many as 40 customers on Guccione’s particular list. He said it was too soon to know whether Hose Specialty had lost any business to Guccione, but there was the potential to lose quite a bit of business.

Strickland testified there are probably eight companies in the Greater New Orleans area or in Southeast Louisiana that sell hose in direct competition with his company. To his knowledge, no one has the customer list “exactly the way that Hose Specialty has developed it.” He admitted, however, a competitor could have a list 98% similar to Hose Specialty’s because “you could probably fabricate a list by going, taking a ride down Peters Eoad or whatever. It’s the relationships that we protect through the Employment Agreement....” He said the list is exclusive because the company paid to develop the relationships between the outside salesperson and the individuals within those companies.

With regard to the price list, Strickland stated that Guccione had delivered many quotes to many customers. He admitted that at Hose Specialty the inside sales people provide the price quotations to the outside salespeople; the outside salesperson has nothing to do with the pricing, but simply informs the customer of | fithe price quoted by the inside salesperson. He said that Guccione had access to all the pricing provided to his customers. Strickland admitted there is no single “price list,” stating, “We have 18,000 items. I’m sure he’d have to go on the computer system to know what every item cost.” He said the pricing information is contained within the company’s internal computer network and is not available to the public.

Strickland also admitted that Guccione had to sign the Employment Agreement as a condition of his employment and that Guccione had no input on the actual terms of the contract.

Steve Guccione testified that while he was at Hose Specialty, he was never given a customer list, but rather was given assigned accounts and told to call on them. He admitted, however, he had a listing of customers to whom he was assigned. He denied that he had solicited Hose Specialty’s customers since leaving its employ. He testified that since going to work for Taylor Industries, he was soliciting customers from a list provided by the new company.

Guccione admitted he had called on some of the same individuals or entities on whom he called for Hose Specialty. He denied that he was calling on all the same customers as he had at Hose Specialty and said some were not on his list from Hose Specialty. He admitted, however, that he was calling on Hose Specialty customers even though he had agreed not to.

Guccione stated, “[I]t’s open territory. Everyone goes after the same customers. All the hose companies in the industry goes [sic] after the same customers.” Guccione also testified that in excess of 15-20 companies in this area sell hydraulic hose, including “major players like Taylor’s and Hose Specialty.” He said he knows of no company that buys hose only from Hose Specialty.

Guccione said that every time he asked for a list at Hose Specialty, he was told it could not be printed. He was told what accounts to call on. There was a sales |7meeting every Monday morning; they were assigned certain accounts, plus they cold-called people in certain territories. He had a notebook in which he jotted down whom he saw. He said he returned all that to the sales manager on his last day at Hose Specialty. Guccione said he saw 50 to 100 accounts on a rotating basis. Some of them were “cold calls”; not all of them bought hoses from him.

Guccione said he had no access to the main computer at Hose Specialty, which contained the pricing information. When he needed a price he had to contact the inside sales people, who would give the prices for particular products to him. Guccione denied that he knew prices for any particular pieces of equipment or hose that he sold. Further, Guccione said, the laptop computers provided to the salespeople by Hose Specialty were specially altered so that no printing could be done from the laptop. He also said he had no idea how to price products for the company; they never showed him how to do a quote, how to price out anything, or what profit margins to use.

Guccione denied he had ever revealed to anyone else the names of his customers at Hose Specialty. He specifically denied ever giving Taylor any information regarding his Hose Specialty contacts. He reiterated that every customer on whom he has called was on the list given him by Taylor. He said he was given a list of 150-200 customers by Taylor. His territory for Hose Specialty was the West Bank, East Bank and Venice. His territory for Taylor is Harvey, Houma and Venice. Taylor has branches in Morgan City, Lafayette, Venice, Harvey, and Golden Meadow. Hose Specialty has six or seven locations in Louisiana and Houston.

Guccione testified there are other employees who left Hose Specialty and have gone to work for its competitors. He listed several names of former Hose Specialty personnel and said they also had signed employment agreements, but that | she has never heard of the company suing them for enforcement of the agreement. He admitted that some of the customers on Taylor’s list were also customers of Hose Specialty and that he had sold to them anyway.

The Employment Agreement contains the following relevant passages:

Agreement Dated January 2, 1997, between Hose Specialty and Supply Co., Inc. (“Employer”) and Steven P. Guc-cione (“Employee”)
11.) Disclosure Information. Employee acknowledges that the list of the employer’s customers as it may exist from time to time is a valuable, special, and unique asset of the employer’s business. Employee will not, during or after the term of his employment, disclose the list of Employer’s customers or any part thereof to any person, firm, corporation, association, or [sic] any reason or purpose whatsoever. In the event of a breach or threatened breach by Employee of the provisions of this paragraph, Employer shall be entitled to an injunction restraining Employee from disclosing, in whole or in part, the list of Employer’s customers, or from rendering any services to any person, firm, corporation, association, or other entity to whom such list, in whole or in part, has been disclosed or is threatened to be disclosed....
* * *
14.) Restrictive Covenant. For a period of one year after the termination of this Agreement, no matter which party terminates this Agreement, whether for cause or without cause i.e., for a period of one year after employment Employer terminates for any reason, Employee shall not, within all sixty-four (64) parishes of the state of Louisiana, within the following counties of the State of Mississippi: Wilkinson, Amite, Pike, Walthall, Marion, Lamar, Forrest, Perry, Greene, George Stone, Pearl River, Hancock, Harrison and Jackson; and within the following counties of the State of Alabama: Baldwin and Mobile; directly or indirectly, own, manage, operate, control, be employed by, participate in, or be connected in any manner with the ownership, management, operation, or control of any business similar to the type of business conducted by Employer at the time of the termination of this Agreement, so long as Employer or its successors or assigns carry on a like business therein. Additionally, Employee shall not solicit |9customers of Employer within all sixty-four (64) parishes of the State of Louisiana and within the above-specified counties of the States of Mississippi and Alabama.

ACTION OF DISTRICT COURT

Ruling from the bench, the court rendered judgment in favor of Hose Specialty, followed by a written judgment dated May 12, 2003. In oral reasons for judgment the court stated:

When Mr. Guccione went to work for Hose Specialty on January 2, 1997 he signed an Employment Agreement, which he has acknowledged today. Tommy Tillis, who was his supervisor, signed for Hose Specialty & Supply Company, Inc. There has been no testimony today that Mr. Guccione did not understand what he was signing. On the contrary, Mr. Guccione was very credible and forthcoming and honest in his testimony. And that reflects that he understood what he was signing. He understood the nature of Hose Specialty’s business. And he admitted that the Taylor company business, for whom he is working at this point, is in essential part the same kind of business as Hose Specialty is.
At paragraph 11 of the contract, entitled “Disclosure Information,” Mr. Guccione by signing agreed and acknowledged “that the list of Employer’s customers as it may exist from time to time” — and that would be Hose Specialty’s customers — “is a valuable, special, and unique asset of Employer’s business.” Mr. Guccione signed, agreeing further at paragraph 11: “Employee will not, during or after the term of his employment, disclose the list of Employer’s customers or” — and this next phrase ... or clause is important — “or any part thereof to any person, firm, corporation, association, or any reason or purpose whatsoever.
Even more pertinent to today’s proceeding, at paragraph 14 of the contract signed by Mr. Guccione, entitled “Restrictive Covenant.” ...
The contract is clear and unequivocal.
Mr. Guccione is enjoined and restrained for a one-year period from the date he left the employ of Hose Specialty, which was on April 14, 2003, from specifically being employed by or in any way connected with the Taylor’s Company, by whom he is currently employed, or any other company which carries on any business similar to the type of business conducted by Hose |inSpecialty and Supply Management Company, Inc. Further, he is enjoined from soliciting customers within all sixty-four parishes of the State of Louisiana, or the Parishes [sic] of Mississippi and Alabama specified in the contract. And that would be from soliciting any customers of Hose Specialty Management Company, Inc. Furthermore, he is enjoined and restrained from disclosing the customer list of Hose Specialty Supply Management Company, Inc., or any part thereof at any time, within a period as required by law. And I believe the limits in the case law are — I believe the case law at an outer limit speaks in terms of five years.
Mr. Guccione is enjoined and prohibited from disclosing ... the customer list and the pricing list, or use [sic] confidential proprietary customer information, as he agreed to in his contract with Hose Specialty. He is restrained and enjoined from soliciting customers on Hose Specialty [sic] customer list, from contacting current customers, from entering the premises owned or occupied by Hose Specialty. He is enjoined for one year of being involved in the business in any like business whatsoever. So he should not need to contact Hose Specialty to find out if anybody is on their customer list, because he has agreed not to be in the business for a year.

The written judgment restrained and enjoined Guccione for a period of one year from the date he left the employ of Hose Specialty & Supply Management Company, Inc. on April 14, 2003 from the following:

1. Directly or indirectly, owning, managing, operating, controlling, being employed by, participating in, or being connected in any manner with the ownership, management, operation, or control of Taylor Industries and/or any business similar to the type of business conducted by Hose Specialty & Supply Management Company, Inc., within all sixty-four (64) parishes of the State of Louisiana, within the counties of Wilkinson, Amite, Pike, Walthall, Marion, Lamar, Forrest, Perry, Greene, George Stone, Pearl River, Hancock, Harrison and Jackson in the State of Mississippi, and within the counties of Baldwin and Mobile in the State of Alabama;
2. Soliciting customers of Hose Specialty & Supply Management Company, Inc., within all sixty-four (64) parishes of the State of Louisiana, within the ... counties of [same listing as in No. 1 above] in the Instate of Mississippi, and within the counties of Baldwin and Mobile in the State of Alabama.

The judgment further restrained and enjoined Guccione from

1. Disclosing the list of Hose Specialty & Supply Management Company, Inc.’s customers, pricing lists, confidential and/or proprietary information or any part thereof to any person, firm, corporation, or association;
2. Rendering services to any person, firm, corporation, association or other entity to whom the list of Hose Specialty & Supply Management, Inc.’s customers, pricing lists, confidential and/or proprietary information, in whole or in part, has been disclosed or threatened to be disclosed for the maximum time allowed by law.

On appeal Guccione contends the trial court committed reversible error in issuing injunctions based on the disclosure of the customer list, in issuing injunctive relief based on pricing or other proprietary information, and in enforcing the restrictive employment agreement.

Hose Specialty filed an answer to the appeal, seeking damages for frivolous appeal.

In his first assignment, Guccione argues the trial court erred in issuing injunctions based on disclosure of the customer list. He contends that plaintiff failed to prove there is an actual physical “customer list.” Defendant points out that when questioned on the list, James Strickland could not quantify how many customers there were and testified, “It’s the relationships that we protect through the employment agreement. ... The list is exclusive because the company paid to develop the relationship between the outside sales person and the individuals within the company.”

Guccione asserts, further, that the court erred in enforcing the injunctive relief clause because the contract requires a breach or threatened breach of | ^disclosure by Guccione. Guccione contends there was no testimony that could prove or even indicate that he disclosed the customer list to anyone. Strickland testified that Guccione had contacted customers who had done business with Hose Specialty, but Guccione testified he never disclosed a customer list to anyone and that he was given the names of certain customers by his new employer.

Guccione argues the contract contains no reference to pricing lists or other proprietary information. He assert that without a contractual basis for granting injunc-tive relief, Hpse Specialty must rely upon the provisions of the Code of Civil Procedure, under which it had to prove irreparable injury in order to obtain an injunction. Defendant contends that plaintiff failed to establish it had suffered or would suffer any irreparable harm if injunctive relief were not issued.

Finally, Guccione contends the agreement is unenforceable because it is over-broad. He asserts there was no testimony defining the territory in which Hose Specialty does business and no testimony that Hose Specialty does business in the entire state of Louisiana as well as in the Mississippi counties designated in the agreement. The only testimony regarding territories concerned the territories assigned to defendant by his new employer.

Guccione asserts further that there is too little information for the court to reform the agreement in order to enforce it. He contends that although the statute’s wording permits a contract restricting non-competition clauses to a parish or parishes, it says nothing about “county or counties,” and hence cannot apply to the Mississippi and Alabama counties listed in the agreement.

In opposition, Hose Specialty asserts the trial court properly issued the injunction based upon the disclosure of Hose Specialty’s customer list, properly issued the injunction against the disclosure and/or use of Hose Specialty’s pricing liJist, that the restrictive covenant in the agreement is enforceable, and that Hose Specialty is entitled to damages for frivolous appeal.

Hose Specialty asserts that despite the fact that there was no printed, formal “customer list,” Guccione acknowledged in signing the Employment Agreement that “the list of the employer’s customers as it may exist from time to time is a valuable, special, and unique asset of the employer’s business.” In addition, Hose Specialty cites Guccione’s own testimony that he had a “set” list of customers to whom he was assigned by Hose Specialty.

Hose Specialty points out that the purpose of the non-disclosure clause is “to protect Hose Specialty’s relationships that have been established over the years,” which its sales employees are paid to develop for the benefit of its business. Hose Specialty argues, “In signing the Employment Agreement, Guccione agreed to protect those relationships by refraining from disclosing its eustomer[s] to Hose Specialty’s competitors.”

Hose Specialty contends that the trial court correctly found that Guccione had breached the restrictive covenant by soliciting Hose Specialty’s customers within one year of his termination of employment. Gueeione himself admitted that he intentionally solicited Hose Specialty’s customers, although he was contractually bound not to do so.

Hose Specialty further contends that because the restrictive covenant restricts the non-competition prohibition both in time and geographical location, it is valid. Hose Specialty argues, “It is immaterial that the restrictive covenant and the Trial Court’s judgment lists counties, as well as parishes. The provisions properly limit the non-competition agreement as required by statute.”

Finally, in its answer to the appeal Hose Specialty seeks damages for frivolous appeal, asserting there is no substantial legal question for appeal in this |ucase, that Hose Specialty presented sufficient evidence to support the trial court’s finding that the employment agreement was enforceable, that Guccione breached and/or threatened to breach the clear terms of the agreement, and that an injunction was warranted.

LAW AND ANALYSIS

La.R.S. 23:921 governs noncompetition contracts. It provides, in pertinent part:

A. (1) Every contract or agreement, or provision thereof, by which anyone is restrained from exercising a lawful profession, trade, or business of any kind, except as provided in this Section, shall be null and void.
* * *
C. Any person, including a corpora^ tion and the individual shareholders of such corporation, who is employed as an agent, servant, or employee may agree with his employer to refrain from carrying on or engaging in a business similar to that of the employer and/or from soliciting customers of the employer within a specified parish or parishes, municipality or municipalities, or parts thereof, so long as the employer carries on a like business therein, not to exceed a period of two years from termination of employment. An independent contractor, whose work is performed pursuant to a written contract, may enter into an agreement to refrain from carrying on or engaging in a business similar to the business of the person with whom the independent contractor has contracted, on the same basis as if the independent contractor were an employee, for a period not to exceed two years from the date of the last work performed under the written contract.
* * *
G. Any agreement covered by Subsections B, C, D, E, or F of this Section shall be considered an obligation not to do, and failure to perform may entitle the obligee to recover damages for the loss sustained and the profit of which he has been deprived. In addition, upon proof of the obligor’s failure to perform, and without the necessity of proving irreparable injury, a court of competent jurisdiction shall order injunctive relief enforcing the terms of the agreement.

lüiThe Louisiana Supreme Court’s most recent pronouncement on the proper interpretation and application of La.R.S. 23:921 regarding noncompetition agreements is SWAT 24 Shreveport Bossier, Inc. v. Bond, 00-1695 (La.6/29/01), 808 So.2d 294. In SWAT Zip the court interpreted “the limited exception found in § 921(C) to the general nullity of such agreements to apply only to those agreements in which the employee agrees to refrain from carrying on or engaging in his own business similar to that of the employer” and found the agreement before it unenforceable because its language went beyond the limited exception. Id at 296.

La.R.S. 23:921(A)(1) expresses Louisiana’s strong public policy disfavoring non-competition agreements between employers and employees. SWAT 24, 808 So.2d at 298. “Because such covenants are in derogation of the common right, they must be strictly construed against the party seeking their enforcement.” Id.

The SWAT 2b court held that La. R.S. 23:921(C) only allows an agreement that prohibits an employee from leaving and beginning his own similar business in competition with his original employer:

The presumption arising from the legislature’s deliberate change in the language, combined with the principle that we must strictly construe the exceptions to the longstanding public policy of this state disfavoring agreements not to compete, lead us to believe that the legislature intended that a noncompetition agreement restraining an employee from carrying on or engaging in his own business may be valid provided certain conditions are met. Conversely, an agreement that restrains an employee from carrying on or engaging in a competing business as the employee of another does not fall within the exception provided for by La. R.S. 23:921(0) and, instead, would be null and void pursuant to Subsection (A).

808 So.2d at 306.

|1fiThus, an agreement cannot prohibit an employee from working for a similar business in competition with the original employer. “Louisiana’s strong public policy restricting these types of agreements is based upon an underlying state desire to prevent an individual from contractually depriving himself of the ability to support himself and consequently becoming a public burden.” SWAT 24, 808 So.2d at 298.

Guccione in this case has not started his own business; rather, he went to work for a competing business as an employee. Accordingly, the trial court in this case erred in enjoining Guccione from “being employed by or in any way connected with the Taylor’s Company ... or any other company which carries on any business similar to the type of business conducted by Hose Specialty and Supply Management Company, Inc.” That portion of the judgment must be vacated.

On the other hand, “an employee whose noncompetition agreement comports with the requirements of La.R.S. 23:921(C) may be validly restricted from carrying on or engaging in his own competing business and from soliciting customers of the employer for his own competing business or the competing business of another.” 808 So.2d at 307.

Here, as in the SWAT 24 case, the language of the Employment Agreement goes beyond the limited exception to the statutory ban on noncompetition agreements by prohibiting Guccione’s employment in any capacity with any other business “similar to the type of business” conducted by Hose Specialty. Therefore, 117the contractual language is overbroad and thus is null and void. See SWAT 24, 808 So.2d at 308.

Further, as pointed out by Guc-cione, the Employment Agreement prohibits disclosure of Hose Specialty’s customer list, but it says nothing about a price list or other “confidential or proprietary information.” The judgment went beyond the scope of the agreement by including “pricing lists, confidential and/or proprietary information” in the injunction. Consequently, that portion of the judgment that enjoins disclosure of “pricing lists, confidential and/or proprietary information” is vacated.

With respect to the geographic bounds of the agreement, Guccione argues that the provisions of the contract prohibiting him from soliciting customers in specified counties in Mississippi and Alabama are unenforceable. He cites the language of La.R.S. 23:921(C) regarding geographic limitations, which states, “Any person .... may agree with his employer to refrain from ... soliciting customers of the employer within a specified parish or parishes, municipality or municipalities, or parts thereof ...Guccione contends that the statute does not mention counties and, hence, a restrictive employment agreement cannot apply to counties as geographic entities.

As the supreme court stated in SWAT 24, “we must strictly construe the exceptions to the longstanding public policy of this state disfavoring agreements not to compete.” 808 So.2d at 306. Public policy requires that the provisions of non-competition agreements be strictly construed in favor of the employee, and the agreements must strictly comply with the requirements of the statute limiting the territorial scope of such contracts. Turner Professional Services, Ltd. v. Broussard, 99-2838 (La.App. 1 Cir. 5/12/00), 762 So.2d 184, writ denied 00-1717 (La.9/29/00), 770 So.2d 356.

|1RWe find there is no significant difference between “parish or parishes” as used in the statute and “county or counties,” for both refer to the same type of geographic subdivision of a state. What is important is that the geographic limitation be express and clearly discernable. The agreement here satisfied that requirement by specifically listing the counties in Mississippi and Alabama to which the agreement applies. For this reason the geographic limitation is enforceable.

Further, we find the court did not err in enjoining disclosure of Hose Specialty’s customer list. Hose Specialty sufficiently proved there was either a breach or a threatened breach of that provision. Strickland testified that customers of Hose Specialty had advised the company that Guccione had called on them and solicited their business for Taylor by offering to beat Hose Specialty’s prices. Such action not only violates the non-solicitation clause of the agreement (which we find is enforceable), but also threatens a breach of Hose Specialty’s confidential customer list.

We also affirm the language that prohibits Guccione from soliciting customers of Hose Specialty for a period of one year from the date of his termination. However, that clause applies broadly across Louisiana and includes counties in Mississippi and Alabama, and must surely include customers with whom Guccione had no contact when he worked for Hose Specialty. Without knowing who those customers are, he will be unable to determine whether customers of his new employer are also on the Hose Specialty list. Accordingly, we shall direct the trial court to issue a protective order, under which Hose Specialty will be ordered to disclose to Guccione what customers he may not solicit, while Guccione will be ordered to maintain strict confidentiality of all such information.

| isln view of our conclusions here, we find no merit to Hose Specialty’s claim for damages for frivolous appeal.

DECREE

For the foregoing reasons, we vacate the language of the judgment that enjoins the defendant, Steve Guccione, from being employed by the Taylor company or any other company which carries on any business similar to the type of business conducted by Hose Specialty and Supply Management Company, Inc.

We also vacate the language that prohibits Guccione from disclosing Hose Specialty & Supply Management Company, Inc.’s pricing lists, confidential and/or proprietary information.

In addition, we vacate the paragraph that prohibits Guccione from “rendering services to any person, firm, corporation, association or other entity to whom the list of Hose Specialty & Supply Management, Inc.’s pricing lists, confidential and/or proprietary information ... .has been disclosed or threatened to be disclosed.”

Finally, we remand and order the trial court to enter a protective order regarding disclosure to Guccione of what customers he is prohibited from soliciting, as discussed above.

In other respects the judgment is affirmed. Costs of this appeal are assessed equally against the parties.

VACATED IN PART, AFFIRMED IN PART, AND REMANDED WITH INSTRUCTIONS.

      . We acknowledge the legislature’s recent amendment of La.R.S. 23:921 by Acts 2003, No. 428, § 1, which altered subsection (B) to include the phrase, “or other interested party in the transaction,” and added new subsection (H), which provides, "For the purposes of Subsections B and C, a person who becomes employed by a competing business, regardless of whether or not that person is an owner or equity interest holder of that competing business, may be deemed to be carrying on or engaging in a business similar to that of the party having a contractual right to prevent that person from competing.” Although that language appears to legislatively overrule the SWAT 24 case, we will not apply the new version of the statute retroactively to this case. Since it affects contract rights, it makes a substantive change in the law, and therefore should have prospective application only. See La.C.C. art. 6.


source: Caselaw Access Project

author: IpSOL GOTHARD, Judge.

license: Public Domain

text:
    Veronica Evans and Alfredo EVANS v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY and Andra Theriot.
    No. 2003-CA-1003.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 30, 2003.

      Michael I. Rodriguez, New Orleans, LA, for Plaintiffs/Appellants.
    James S. Thompson, Nicholas C. Gristi-na, Porteous, Hainkel & Johnson, LLP, New Orleans, LA, for Defendants/Appel-lees.
    Panel composed of Judges SOL GOTHARD, THOMAS F. DALEY and MARION F. EDWARDS.
   IpSOL GOTHARD, Judge.

Plaintiffs, Veronica and Alfredo Evans, appeal from the trial court’s judgment dismissing their suit against defendants, State Farm Mutual Auto Insurance Company and Andra Theriot. For the reasons that follow, we affirm the decision of the trial court.

The plaintiffs filed this suit for damages as a result of an alleged automobile accident. Plaintiffs contend that on February 9, 2001, they were traveling in a 1994 Nissan Pathfinder being driven by Alfredo Evans, when the left rear side was struck by a box which had fallen off a truck, causing Mr. Evans to swerve violently and to strike the curb. Mr. Evans stated that the box was the size of a refrigerator box. Mr. and Mrs. Evans both contend that they received cervical and lumbar injuries as a result. They were both treated by a physician recommended by their attorney. Plaintiffs did not produce any evidence of vehicle damage at the trial.

Defendant, Ms. Theriot, testified that she was traveling on Highway 90, at the intersection of Highway 90B, driving a pick-up truck. She had three sections of a sectional sofa, in boxes, in the back of the truck. Her husband was following behind her in another vehicle. She was unaware that one of the boxes had fallen off the truck until her husband contacted her by cell phone and told her that the box had fallen off the truck and that he would pick it up. He also told her that the box did not hit anyone. Both the sectional and the box it was in were undamaged in the fall. Photographs of the box at trial supported the testimony that the box was undamaged, and also show that the box was smaller than a refrigerator box.

|sMr. Evans testified that after the box fell off the truck, he followed Ms. Theriot. He was unable to catch her, so he wrote down her license plate number. He then drove home and called the police. Ms. Theriot testified that the police came to her house to investigate. She told them that a box had fallen off her truck, but to her and her husband’s knowledge it did not hit anything. She was given a citation, which was later dismissed.

The trial court considered the testimony of both parties and found that plaintiffs failed to meet their burden of proof in proving that an accident actually occurred. In her reasons for judgment, the trial judge specifically stated that, “This Court finds it difficult to assign credibility to the Plaintiffs’ testimony.”

In this appeal, plaintiffs argue that the trial court committed manifest error in failing to render a judgment in favor of the plaintiffs.

It is well established law that a district court’s finding of fact may not be set aside in the absence of “manifest error” or unless it is “clearly wrong.” Leal v. Dubois, 2000-1285 (La.10/13/00), 769 So.2d 1182. Where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). Stobart v. State, 617 So.2d 880, 882 (La.1993) set forth a two-part test for the reversal of a factfinder’s determinations: (1) The appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court, and (2) the appellate court must further determine that the record establishes that the finding is clearly wrong (manifestly erroneous).

The appellate court may not merely decide if it would have found the facts of the case differently. Ambrose v. New Orleans Police Dep’t. Ambulance Serv., 93-3099 (La.7/5/94), 639 So.2d 216, 221. “An appellate court should not substitute its opinion for the conclusions made by the district court, which is in a | ¿unique position to see and hear the witnesses as they testify.” Leal, supra at 1184-5. “Where there is conflict in the testimony, reasonable determinations of credibility and reasonable inferences of fact should not be disturbed on appeal.” Arceneaux v. Domingue, 365 So.2d 1330, 1333 (La.1978). Furthermore, “where two permissible views of the evidence exist, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong.” Stobart, supra at 883.

The reason for this well-settled principle of review is based not only upon the trial court’s better capacity to evaluate live witnesses (as compared with the appellate court’s access only to a cold record), but also upon the proper allocation of trial and appellate functions between the respective courts.

Pinnsoneault v. Merchs. & Farmers Bank & Trust Co., 01-2217, (La.4/3/02), 816 So.2d 270, 279.

This is not to say that a factual finding of the trial court cannot be overturned. The court in Ambrose v. New Orleans Police Dep’t. Ambulance Serv., supra at 221, recognized that, although deference is to be accorded to the factfinder, the Court of Appeal and the Louisiana Supreme Court have a constitutional duty to review the facts. Because of this constitutional function, “it has every right to determine whether the trial court verdict was clearly wrong based on the evidence, or clearly without evidentiary support.” Id. at 221.

The trial court found that the only credible witness in this case was Ms. Ther-iot, and that plaintiffs failed to meet their burden of proving that an accident actually occurred. After reviewing the record in this matter, we cannot say that the trial court committed manifest error or was clearly wrong in this determination, or that its findings were without evidentiary support.

For the above discussed reasons, the judgment of the trial court is affirmed. All costs are assessed against appellants.

AFFIRMED.


author: | .SOL GOTHARD, Judge.

text:
    In re MEDICAL REVIEW PANEL OF Keisha CONERLY.
    No. 02-CA-0485.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 30, 2003.
    C.A. Fleming, III, Metairie, Louisiana, for Plaintiff/Appellant.
    Charles F. Gay, Jr., C. Byron Berry, Jr., Adams and Reese, for Defendants/Appel-lees.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., SOL GOTHARD and WALTER J. ROTHSCHILD.
   ON REMAND FROM THE LOUISIANA SUPREME COURT

| .SOL GOTHARD, Judge.

This malpractice action has been before this Court previously in In re Medical Review Panel of Conerly, 02-485 (La.App. 5 Cir. 11/13/02), 833 So.2d 384. Plaintiff, Keisha Conerly, brought the action after being diagnosed with hepatitis C virus. Conerly alleged she contracted the virus from two blood transfusions she received as an infant at Ochsner Foundation Hospital in 1979. In that opinion we reversed the trial court’s judgment granting a defense exception of prescription as to plaintiffs claims of strict liability in accordance with Williams v. Jackson Parish Hospital, 00-3170 (La.10/16/01), 798 So.2d 921. Defendant sought review of that opinion in the Louisiana Supreme Court, and the matter has been remanded to this Court for re-consideration in light of the Supreme Court’s new pronouncement in David v. Our Lady of the Lake, 02-2675 (La.7/02/03), 849 So.2d 38.

In David, the court overruled Williams and held that claims in strict liability in tort for the transfusing of blood contaminated with hepatitis C are prescribed pursuant to La. R.S. 9:5628. David v. Our Lady of the Lake, supra, 849 So.2d at 49. Accordingly, we reverse that portion of our prior opinion which allowed the exception of prescription as to the strict liability claims and enter a ruling which affirms the trial court’s grant of the prescription and dismisses plaintiffs claim.

In our prior opinion, we pretermit-ted review of plaintiffs constitutional claim. Plaintiff asserted that La.R.S. 9:5628 is unconstitutional because of the discrepancy between the treatment of victims of public malpractitioners and the treatment of victims of private malpracti-tioners is a violation of the equal protection guaranty of both the United States and the Louisiana Constitutions. We now consider this argument and find it unpersuasive. We find it is clear from Williams, which found the statute is neutral on its face because it is placed as a Title 9 Civil Code ancillary and applies regardless of a provider’s status as qualified or unqualified medical provider under the Medical Malpractice Act, and from David, which applied the statute to an unqualified medical provider that this statute is constitutional. Accordingly, we affirm the trial court’s ruling that La.R.S. 9:5628 is constitutional.

For reasons assigned herein, we reverse that portion of our prior opinion in this matter and affirm the trial court’s judgment which denied the plaintiffs motion to declare La.R.S. 9:5628 unconstitutional, and granted defendant’s exception of prescription.

AFFIRMED.


author: JjMOON LANDRIEU, Judge Pro Tempore.

text:
    INTERNATIONAL MARINE TERMINALS PARTNERSHIP v. PORT SHIP SERVICE, INC.
    No. 2003-CA-0629.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 30, 2003.

      Maurice C. Hebert, Jr., Kelly T. Scalise, Liskow & Lewis, New Orleans, LA, for Plaintiff/Appellant.
    Michael Q. Walshe, Jr., Walter F. Wolf, III, Stone Pigman Walther Wittman L.L.P., and Timothy D. Seandurro, Dewey M. Seandurro, Seandurro and Layrisson, L.L.C., New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge MAX N. TOBIAS JR., Judge LEON A. CANNIZZARO JR. and Judge Pro Tempore MOON LANDRIEU).
   JjMOON LANDRIEU, Judge Pro Tempore.

Plaintiff-appellant, International Marine Terminals Partnership (hereinafter referred to as “plaintiff’ or “IMT”), appeals a judgment in favor of the defendant-ap-pellee, Port Ship Service, Inc., denying plaintiffs Petition for Preliminary and Permanent Injunction and dissolving the temporary restraining order previously issued against Port Ship.

IMT operates a privately owned dock on which it conducts its business of loading and unloading ships for bulk storage and transfer. Such vessels require visits by immigration officials, the coast guard, military-type guards, deliveries of supplies and equipment, and medical care to crew members as well as the delivery of other goods and services. Port Ship provides transportation for such purposes to ships moored at the plaintiffs dock as well as at other locations along the Mississippi. For years Port Ship offered its services pursuant to a cooperative arrangement with IMT. That arrangement no longer exists and IMT has started offering the same services to ships at its dock that used to be provided by Port Ship. IMT now objects to Port Ship using its privately owned dock when providing services to ships docked there. IMT does not object to Port Ship providing such services from the water side of ships docked at its premises. |? Indeed, as the water there is navigable, Port Ship has as much right to water access as does IMT. Port Ship says that it prefers to service the vessels that it contracts with from riverside gangways. This is not always possible because IMT’s operation involves barge-mounted cranes that often block access to riverside gangways, thereby forcing Port Ship to access the ship via IMT’s dock. Port Ship even argues that IMT often intentionally blocks riverside access because IMT wishes to compete with Port Ship for the service business. The record does not support this argument.

IMT sought to enjoin Port Ship from using its dock facilities and a TRO was granted by the trial court in favor of IMT. However, in dissolving that TRO and dismissing IMT’s petition for preliminary and permanent injunction, the trial court issued written reasons which in pertinent part state that:

IMT’s docks are located several hundred feet out in navigable waters of the Mississippi River, and the permit by which they exist prohibit IMT from impeding navigation in the river in any way.

IMT does not contest this finding. The trial court’s written reasons go on to state that:

The navigation of the ships which moor at IMT and their very seaworthiness require the visits and services which are provided by Port Ship Service. This fact is known to IMT, in fact, they have begun providing the same services for profit in competition with Port Ship Service.

IMT does not dispute this finding. IMT does not dispute the fact that the services provided by Port Ship are services that are necessarily and customarily provided to a ship. The ships serviced by IMT are the proper parties to assert this implicit right of service. However, in this case none of the ships with whom IMT could be said to have such an implicit understanding are party to these 1¡proceedings. Port Ship does not assert any direct business or contractual relationship with IMT. In fact, the record supports the trial court’s finding of a “failed business relationship between the two companies.” Accordingly, the underlying questions as seen by this Court are:

1. Does Port Ship have the right to assert the right of service running in favor of ships using IMT’s facilities? The nonjoinder of a party (in this case the owners of cargo on the ships moored at IMT’s docks) or the failure to state a right of action by the plaintiff may be noticed by this Court on its own motion. La.C.C.P. art. 927B.
2. If Port Ship does not have a third party right arising out the contract existing between IMT and the cargo owner with ships moored at IMT’s dock, does Port Ship have a right to use the dock based on some other legal theory?

Under Article I § 4 of the Louisiana Constitution, IMT has the right to use, control and protect its privately owned and appropriately permitted dock. These rights allow IMT to contract with cargo owners to permit the ships carrying their cargo to dock at their facility while the ship is being loaded or unloaded. These contracts may produce effects for third parties only when provided by law. La. C.C. art. 1985. The 1984 Revision Comments under La. C.C. art. 1985 provides in pertinent part:

(b) Because of the ever-increasing importance of third party-beneficiary contracts, this Article provides that contracts bind only the parties unless they have lawfully stipulated otherwise.

Port Ship has the burden of proving the existence of a stipulation pour autrui running in its favor. Paul v. Louisiana State Employees’ Group Ben. Program, 99-0897 (La.App. 1 Cir. 5/12/00), 762 So.2d 136. Port Ship has not referred to a stipulation pour autrui or third party beneficiary contract using those terms, but many of its allegations have such implications.

14A stipulation pour autrui is never presumed; rather, the intent of the contracting parties to stipulate a benefit in favor of a third party must be made manifestly clear. Id.; Guidry v. Hedburg, 98-228 (La.App. 3 Cir. 11/4/98), 722 So.2d 1036. It must be express and in writing. Id.; Concept Design, Inc. v. J.J. Krebs & Sons, Inc., 96-1295 (La.App. 4 Cir. 3/19/97), 692 So.2d 1203. There is nothing in the record that meets these requirements.

Port Ship, in effect, argues that it has the rights arising out of whatever contractual/business relationship exists between the ships it services and IMT. Port Ship does not contend that there is anything in the contractual/business relationship existing between the ships it services and IMT specifically or explicitly conferring any rights on Port Ship. Port Ship contends that its right to service the ships docked at IMT’s dock is implicit. However, Port Ship does not contend that this implicit right is exclusive to it. The trial court’s written reasons for judgment says that any “ship service company which has been contracted by the ship is entitled to access to the ship by and across the dock to which the ship is moored, or by any other means of access which either the ship-owner [sic] or its invitee deem to be reasonable and necessary to facilitate that operation.” This statement by the trial court effectively wrests control of IMT’s dock away from IMT and hands it to the owners of ships moored at the dock and Port Ship. Such a generalized, non-specific, implicit right does not constitute a stipulation pour au-trui under La. C.C. art. 1978, et seq., in favor of Port Ship. Moreover, the “failed business relationship” existing between Port Ship and IMT is such that it can be certain that IMT, in contracting with cargo owners to moor the ships at its |sdock, did not have the requisite intent to confer a benefit upon Port Ship such as would be required to constitute a stipulation pour autrui in favor of Port Ship.

The trial court’s written reasons for judgment fail to clarify the legal theory upon which Port Ship may claim the benefit of the contractual relationship existing between the cargo owner with ships moored at IMT’s dock and IMT. Port Ship does not contest the fact that it has no direct legal relationship with IMT.

IMT makes the following statement in its original appellant brief:

To discharge ships, IMT and the ship owner place derrick barges along side the outside of ships. The barges are tied in a way to safely and efficiently accomplish the discharge of the ship. For instance, the crane barge is tied to the ship with a lead wire of sufficient length to safely facilitate the movement of the crane along side the ship to prevent the line from breaking, thus endangering persons and property. This safe, necessary, and customary tie-up may at times unintentionally prevent use of the riverside gangway of ships.

(Footnotes deleted throughout.)

In other words, IMT is also providing services to the ship moored at its dock when it places derrick barges along side the outside of the ship. Port Ship does not contest this fact, although Port Ship does contend that IMT may do so intentionally to block Port Ship’s waterside access to the ship. As we noted earlier, the record does not support this contention.

A trial judge has great discretion to deny a request for a preliminary injunction. A to Z Paper Co., Inc. v. Carlo Ditta, Inc., 98-1417, pp. 8-9 (La.App. 4 Cir. 9/9/98), 720 So.2d 703, 708. The trial court’s denial of IMT’s request for a preliminary injunction will not be overturned by this Court “absent clear abuse of the great discretion offered the trial court.” HCNO Services, Inc. v. Secure Computing Services, Inc., 96-1693, 96-1753, p. 8 (La.App. 4 Cir. 4/23/97), 692 So.2d 835, 841. Before issuing a preliminary injunction, the trial court should consider whether the threatened harm to the plaintiff outweighs the potential harm or inconvenience to the defendant and whether the issuance of the preliminary injunction will disserve the public interest. Chandler v. State, Dept. of Transp. & Development, 02-1410, p. 6 (La.App. 1 Cir. 3/28/03), 844 So.2d 905, 909.

Port Ship states in its brief that it “has never sought access, much less unfettered access, to any other property at the IMT facility.” Port Ship claims that “[t]he only reason that Port Ship needs to use IMT’s dock is because IMT blocks the river-side gangway with its crane barges.” IMT does not dispute Port Ship’s right to waterside access. But IMT has just as much right to waterside access. When IMT ties up crane barges to the vessels it is servicing at its dock it is just a temporary condition occurring during the course of IMT’s servicing of the vessel. Of course, when Port Ship is moored at the riverside gangplank it is reasonable to assume that Port Ship’s presence there would block access to others including IMT. Therefore, we find this argument unpersuasive. Rather, this is an ordinary inconvenience rather than a violation of Port Ship’s right to use navigable waters. Moreover, IMT allows Port Ship to access its dock if responding to an emergency while the gangway is blocked.

IMT argues that to allow Port Service the type of access to its dock that Port Ship seeks would be a violation of the Maritime Transportation Security Act of 2002 (MTSA). This post 9/11 national security legislation is intended to prevent unauthorized personnel form accessing the nation’s vital shipping interests. That is not the issue here.

We agree with IMT that if Port Ship were to commit repeated trespasses upon IMT’s dock, IMT would be entitled to the injunctive relief it seeks. When a 17petitioner seeks to have a person enjoined from continuing an illegal act, he is not required to show immediate or irreparable harm. Worthen v. DeLong, 99-1149 (La.App. 1 Cir. 6/23/00), 763 So.2d 820, 826; Jurisich v. Jenkins, 99-0076 (La.10/19/99), 749 So.2d 597, 600; Davis v. Town of St. Gabriel, 01-0031 (La.App. 1 Cir. 2/15/02), 809 So.2d 537, 542, writ denied, 02-0771, 02-0803 (La.10/14/02), 827 So.2d 420. Port Ship does not dispute the fact that it has entered IMT’s dock without permission and that it would do so again in the future unless enjoined from doing so.

We also agree with IMT’s contention that state law applies:

As historically construed by the Supreme Court, maritime jurisdiction does not embrace accidents on land, or injuries inflicted to or on extensions of land such as docks and piers. Parker v. South Louisiana Contractors, Inc., 537 F.2d 113 (5th Cir.1976), reh. denied, 539 F.2d 710 (5th Cir.1976), cert. denied, 430 U.S. 906 (97 S.Ct. 1175, 51 L.Ed.2d 582) (1977), citing Victory Carriers, Inc. v. Law, 404 U.S. 202 (92 S.Ct. 418, 30 L.Ed.2d 383) (1971) and Nacirema Operating Co. v. Johnson, 396 U.S. 212 (90 S.Ct. 347, 24 L.Ed.2d 371) (1969).

Tidewater, Inc. v. Baldwin-Lima Hamilton Corp., 410 So.2d 355, 359 (La.App. 4 Cir.1982).

Port Ship argues that its entry upon IMT’s dock is privileged because it is fulfilling a contractual obligation to a vessel moored there. The only case Port Ship cites in support of this proposition is Marastro Campania Naviera, S.A. v. Canadian Maritime Carriers, Ltd., 959 F.2d 49, 53 (5th Cir.1992). In that case entry onto the property of another was done pursuant to court order. It therefore does not present a persuasive analogy.

Port Ship also cites the Restatement (Second) of Torts but it is equally unpersuasive. Nothing in the language of the sections of the Restatement relied |supon by Port Ship nor in the examples supporting those sections, bears any relationship to the facts of the instant case.

Even were this court to assume for purposes of argument that when IMT allows ships to moor at its dock that it implicitly authorizes dockside access to all those with whom such ships may contract, such implicit authorization only lasts until it is explicitly revoked by IMT. In this case there is no question that if Port Ship ever had such implicit authorization, it has been explicitly revoked by IMT. Therefore, whatever implicit authorization Port Ship may have had arising out of the mere fact that it had a contractual relationship with a ship moored at IMT’s dock has long since been revoked. Furthermore, there is no evidence of any explicit contractual provision existing between any cargo owner with a ship moored at IMT’s dock and IMT, requiring IMT to allow dockside access to those providing services to the ship such as Port Ship. Additionally, there is no evidence that even if there were such contractual provisions that they could be construed as stipulations pour autrui enforceable by third parties such as Port Ship. Therefore, we cannot agree with the following findings of the trial court:

Thus, when IMT invites a ship to moor at its facility in order to profit from and perpetuate its business, IMT invites all those upon whom the operation of the ship relies, including ship service companies. IMT has no right to impede anything which may be necessary in the operation of such a ship, including the delivery of groceries or the repair of equipment.
A ship service company which has been contracted by the ship is entitled to access to the ship by and across the dock to which the ship is moored, or by any other means of access which either the ship-owner [sic] or its invitee deem to be reasonable and necessary to facilitate that operation.
| aPort Ship is not a trespasser at IMT if engaged in satisfying a contractual obligation to a ship moored at IMT.
As such, IMT has no right to impede nor enjoin use of its dock by Port Ship Service if that company has a contractual relationship with a ship moored at IMT.

This Court is not prepared to allow Port Ship to impinge upon IMT’s private property rights in the absence of any relevant legal authority. Port Ship has cited no relevant legal authority.

Therefore, we find that the trial court committed reversible error by abusing its discretion in dissolving the TRO and in denying IMT’s prayer for preliminary and permanent injunction. Accordingly, the judgment of the trial court is reversed and the case is remanded for further proceedings consistent with this opinion. Port Ship is to bear the cost of this appeal.

REVERSED AND REMANDED.

      . La. C.C. art. 1978 permits a contracting party to stipulate a benefit for a third person.


author: JACHARLES R. JONES, Judge.

text:
    Christopher AHNER and Jennifer Ahner, individually and on behalf of their Minor Daughter, Amanda Ahner v. Mark HATFIELD and State Farm Mutual Automobile Insurance Company.
    No. 2003-CA-0632.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 30, 2003.

      Michelle D. Robert, New Orleans, LA, for Plaintiff/Appellee.
    Fred M. Trowbridge, Jr., Porteous, Hainkel & Johnson, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge CHARLES R. JONES, Judge JAMES F. McKAY III, and DENNIS R. BAGNERIS SR.).
   JACHARLES R. JONES, Judge.

The Appellant, State Farm Fire and Casualty Company, appeals the judgment of the district court granting summary judgment in favor of the Appellees, Christopher Ahner, his wife, Jennifer Ahner, and their daughter, Amanda Ahner. The judgment in which the Appellant seeks review is interlocutory, therefore, this appeal is converted to a writ application, and shall be considered under our supervisory jurisdiction.

FACTS AND PROCEDURAL HISTORY

On February 12, 2000, Christopher Ah-ner, was involved in an automobile accident in which an intoxicated driver, Mark Hatfield, struck Mr. Ahner’s vehicle seriously injuring him. On February 5, 2001, Mr. Ahner, Jennifer Ahner, and Amanda Ahner, filed a Petition for Damages against Mr. Hatfield who was uninsured, and State Farm Mutual Automotive Insurance Company in its capacity as Mr. Ah-ner’s uninsured/underinsured motorist carrier. The Respondents filed | ¡.suit against State Farm Mutual Automotive Insurance Company based on an insurance policy issued to his mother, Ms. Delia Anderson Clawson. Based on an umbrella policy issued to Ms. Clawson, the Respondents amended their petition adding State Farm Fire and Casualty Company. On June 25, 2002, State Farm Fire and Casualty Company filed a Motion for Summary Judgment, alleging that Mr. Ahner was not entitled to coverage. The Relator further argues that according to the terms of the policy, Mr. Ahner was “not the named insured, is not a resident relative of the named insured, and was not a passenger in either a vehicle insured by the policy or driven by the named insured when the accident occurred.” Mr. Ahner, however, argued that State Farm Fire and Casualty Company on its own volition added Mr. Ahner as an additional insured under the policy, and increased the premium in which Ms. Clawson paid. State Farm Fire and Casualty Company argued that it only added Mr. Ahner to the policy and raised the premium after Mr. Ahner falsely reported to them that he was a resident of his mother’s home on policies issued by State Farm Mutual Automobile Insurance Company to Mr. Ahner and his wife. On January 27, 2003, the district court denied the Motion for Summary Judgment filed by State Farm Fire and Casualty. The parties filed a Joint Motion and Order To Make Judgment Final. State Farm Fire and Casualty now seeks review of the January 27, 2003 judgment of the district court.

DISCUSSION

In the Joint Motion for Summary Judgment, the parties aver that there was “no just reason for delay.” This Court ordered the Relator to show cause why the judgment was not “interlocutory in nature and lacking proper certification by the district court as required by La. C.C.P. art. 1915.” The Relator submitted a brief essentially reiterating the sentiments of the Joint Motion and Order To Make 13Judgment Final. We further submit that we agree with the dissent articulated by Judge Kuhn in Motorola, Inc. v. Associated Indemnity Corp., 2002-1351 (La.App. 1 Cir. 10/22/03), 867 So.2d 723, 2003 WL 22404944. Judge Kuhn wrote:

Louisiana Code of Civil Procedure article 1915B(1) expressly provides that a partial judgment shall not constitute a final judgment unless it is designated by the court after an express determination that there is no just reason for delay. There is nothing ambiguous or unclear in the language employed by the legislature. Simply stated, article 1915B(1) means that when the trial court renders a partial judgment or partial summary judgment, it must expressly determine why the parties are entitled to an immediate appeal.

Consequently, this Court, by Order dated September 2, 2003, converted this appeal to an application for supervisory writ for the reasons stated as follows:

The mere use of the cursory language “there is no just reason for delay” is insufficient to meet the requirements of La. C.C.P. art. 1915(B)(1). This article provides that the district court must make an express determination that there is no just reason for delay before a partial judgment can be designated as a final judgment. [Emphasis in Original]

As for the merits of the writ application, we first examine the policy.

The Personal Liability Umbrella Policy issued to Ms. Clawson defines an insured covered as:

a.- the named insured;
b. the following residents of the named insured’s household:
(1) the named insured’s relatives; and
(2) anyone under the age of 21 under the care of a person named above; and
c. a person or organization while using or holding an automobile, recreational motor vehicle, or watercraft owned by, rented by, or loaned to the named insured, provided that the named insured gave permission for the type of use. A person or organization is not an insured if the use or custody is in the course of an automobile sales or service business or without the named insured’s permission.

| .According to the language of the policy, Mr. Ahner would not be covered under the provisions, as it is undisputed that he does not fit within the definition of an insured. However, State Farm Fire and Casualty instituted and accepted a change in the policy, and further accepted payment in regard to the change. Ms. Claw-son also accepted those changes and made payments reflecting the change. The statement issued by State Farm Automobile Insurance Company dated August 28, 1998 to January 3, 1999 evidences the modification. The declarations page of the statement in the section entitled “exceptions and endorsements” specifically stated that Christopher L. Ahner was included as an additional insured and lists his address at 8810 Gervais Street, New Orleans, Louisiana, 70127 1038. Ms. Clawson’s address was listed on this statement as 22511 Longleaf Dr. in Covington, Louisiana. Apparently, State Farm Automobile Insurance Company was aware that Ms. Claw-son and Mr. Ahner were not residing in the same home. There is further language demonstrating a modification to the policy on the statement which indicated that this policy numbered 5606652-A03-18G replaced policy number 5606652-18F. Additionally, there was a notice attached to this statement issued by both State Farm Mutual Automobile Insurance Company and State Farm Fire and Casualty Company which expressly stated that:

Coverage A of your policy is extended to the party named on the declarations page as an Additional Insured.... The Additional Insured:
1. has the same right of recovery under this policy as before;
2. is not liable for any premium or other expense under this policy;
3. is not a member of the State Farm Mutual Automobile Insurance Company of Bloomington, Illinois.
This policy will not be changed or terminated as to the interest of the Additional Insured unless we give such insured notice.

| RIt is well settled that a contract may be modified by the mutual consent of the parties. Vinet v. Estate of Calix, 2003-0572 (La.App. 5 Cir. 10/28/03), 860 So.2d 160. Modification of the contract can be presumed by silence, inaction, or implication. L & A Contracting Co., Inc. v. Ram Indus. Coatings, Inc., 1999-0354 (La.App. 1 Cir. 6/23/00), 762 So.2d 1223. Clearly, the parties agreed that Mr. Ahner was covered as an additional insured and was afforded all rights of recovery granted to Ms. Clawson.

The district court relied on a concept that is typically discussed in disputes arising out of the doctrine of accord and satisfaction. However, the concept is apropos in this instance. As also reasoned by the district court, State Farm Fire and Casualty Company cannot tacitly accept a change, accept payment as a result of the change, and opt to return the money to the insureds post accident to avoid liability. When a debtor tenders a check as payment in full of an obligation due under contract to his creditor, although a dispute exists, this offer by the debtor confers on the creditor a specific right to consent to full satisfaction of the debt by accepting the check or to retain his right under the prior agreement by rejecting the check. Without the debtor’s express or tacit consent, the creditor cannot make use of the check and then renounce the condition upon which the debtor made the offer. RTL Corp. v. Manufacturer’s Enterprises, Inc., 429 So.2d 855 (La.1983). In other words, Ms. Clawson has a reasonable expectation to receive coverage for | (¡her son, Mr. Ahner, after State Farm continuously, without objection, accepted full payment for the additional coverage and even indicated their acceptance in writing.

DECREE

Thus, for the reasons assigned above, the writ application filed by the Relator, State Farm Fire and Casualty Company is hereby DENIED.

APPEAL CONVERTED TO WRIT APPLICATION; WRIT DENIED.

      . Since the appeal is being converted to a writ application, State Farm Fire and Casualty will be referenced as the Relator, and Christopher Ahner, Jennifer Ahner, and Amanda Ahner will be referenced as the Respondents for the remainder of this opinion.


author: JACHARLES R. JONES, Judge. LBAGNERIS, J.,

text:
    Maurice STEWART v. SEWERAGE & WATER BOARD.
    No. 2003-CA-1301.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 30, 2003.
    John D. Lambert, Jr., Special Counsel, Gerard M. Victor, Assistant Special Counsel, Brian A. Ferrara, General Counsel, Sewerage & Water Board of New Orleans, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge CHARLES R. JONES, Judge DENNIS R. BAGNERIS SR., and Judge EDWIN A. LOMBARD).
   JACHARLES R. JONES, Judge.

This is an appeal of a Civil Service Commission’s (“hereinafter the Commission”) decision, overturning the Sewerage and Water Board’s (Board) disciplinary suspension of Maurice Stewart We affirm.

Mr. Stewart has been employed as a maintenance technician for the Board since May of 1996. On September 23, 2002, Mr. Stewart was issued a twenty-day suspension for initiating an altercation with a coworker on August 6, 2002. Mr. Stewart appealed the suspension to the Commission, and the matter was heard on November 12, 2002.

Two witnesses testified before the Commission’s hearing officer. Namely, Mr. Stewart and Anthony Joseph on behalf of the Board. Mr. Joseph was the Zone Manager, responsible for routing and supervising crews in the zone in which Mr. Stewart was assigned.

Mr. Joseph testified that he personally investigated the August 6th incident, and that after interviewing witnesses, determined that Mr. Stewart was the instigator of the altercation. Mr. Joseph further testified that he was personally aware of pri- or disciplinary problems involving Mr. Stewart, wherein Mr. Stewart had to be transferred from three different trucks for having problems with cojworkers.2 The record of a previous three-day suspension, that Mr. Stewart received for fighting on July 16, 2001, was also introduced. The Board presented no other witnesses. Only Mr. Stewart testified on his behalf, wherein he denied being the aggressor.

After hearing the matter, Harry S. Ter-valon, Jr., Hearing Officer for the Commission, rendered his opinion and stated, “[biased on the testimony of all the witnesses, the evidence submitted, and the observation of the Hearing Officer, the case against Appellant is proven. The Appeal should be dismissed.” Thereafter, the three-member panel for the Commission rendered their decision on May 28, 2003, declining to follow the ruling of the Hearing Officer. Instead, the panel granted Stewart’s appeal and ordered the Board to reimburse Stewart for twenty days of back pay. The Commission’s findings stated in pertinent part:

The Appointing Authority has failed to introduce any evidence in support of its position. The conclusion of an investigator without any supporting evidence is not sufficient for the Appointing Authority to meet its burden of proof; particularly where the Appellant testifies to the contrary. The Appellant’s testimony is the only direct evidence presented at the hearing, and we will credit his testimony over secondhand reports. Further, the Appellant was never allowed the opportunity to cross-examine the evidence presented against him because the Appointing Authority failed to present the testimony of any witness to the alleged incident. No one who was involved or who witnessed the alleged altercation testified.
We are not prepared to accept the report of an investigator as the sole evidence in support of a disciplinary action. This is a formal hearing that requires testimony from first hand witnesses.

The Board argues on this appeal that the Commission was arbitrary and capricious in interfering with the authority of the Board to manage its department. Stewart is not represented by counsel and has not filed an appellee brief herein.

\ STANDARD OF REVIEW:

In Walters v. Department of Police, 454 So.2d 106 (La.1984), the Louisiana Supreme Court discussed the standard of review for an appeal of a city civil service commission decision as follows:

An employee who has gained permanent status in the classified city civil service cannot be subjected to disciplinary action by his employer except for cause expressed in writing. He may appeal from such disciplinary action to the City Civil Service Commission, and the burden of proof on appeal, as to the facts, is on the appointing authority. La. Const. Art X, § 8.
... The Commission’s decision is subject to review on any question of law or fact upon appeal to the appropriate court of appeal. La. Const, art. X, § 12(B).
This court has formulated jurisprudential precepts to guide the Commission and the courts of appeal in applying these constitutional principles. “Cause” for the dismissal of a person who has gained permanent status in the classified civil service has been interpreted to include conduct prejudicial to the public service in which the employee in question is engaged or detrimental to its efficient operation. The Commission has a duty to decide independently from the facts presented whether the appointing authority has good or lawful cause for taking disciplinary action and, if so, whether the punishment imposed was commensurate with the dereliction. A reviewing court should not reverse a commission conclusion ... unless the decision is arbitrary, capricious or an abuse of the commission’s discretion.
... Accordingly, a reviewing court should apply the clearly wrong or manifest error rule prescribed generally for appellate review in deciding whether to affirm the commission’s factual findings. ... Due concern both for the intention of the constitution and for the boundaries between the functions of the commission and of the court, however, demands that a reviewing court exercise other aspects of its review function with more circumspection. In reviewing the commission’s finding of fact, the court should not reverse or modify such a finding unless it is clearly wrong or manifestly erroneous. In judging the commission’s exercise of its discretion in determining whether the disciplinary action is based on legal cause and the punishment is commensurate with the infraction, the court should not modify the commission’s order unless it is arbitrary, capricious or characterized by abuse of discretion. Id. at 113-14 (citations omitted).

l/The Louisiana Supreme Court has determined that “arbitrary and capricious” in the context of a civil service commission decision means that there is no rational basis for the action taken. Bannister v. Department of Streets, 95-0404 (La.1/16/96), 666 So.2d 641. In Newman v. Department of Fire, 425 So.2d 753 (La.1983), the Supreme Court discussed the arbitrary and capricious standard as follows:

Disciplinary action against a civil service employee will be deemed arbitrary and capricious unless there is a real and substantial relationship between the improper conduct and the “efficient operation” of the public service. Id. at 754.

DISCUSSION

We do not find that the Civil Service Commission (the Commission) acted arbitrarily or capriciously when the Commission reversed the Order of Suspension of the Appellee, Maurice Stewart. On the contrary, the record demonstrates that the Commission did not err.

The Commission, upon review of the record of evidence and testimony taken before the hearing examiner, found that the appointing authority failed to present sufficient evidence to support a determination that the claimant was in fact responsible for conduct detrimental to the interest of the Commission, and that the claimant had in fact caused the altercation. The Commission further concluded that the legal standard of proof by clear and convincing evidence was not present in this record. I agree.

The Commission specifically noted that the hearsay testimony of Mr. Joseph was insufficient to meet the high legal standard required by the Commission, and the record supports this conclusion. Mr. Joseph testified:

IsQ: Did you investigate an incident that occurred on August 6th, 2002 involving Lonnie Thompson and Mr. Stewart?
A: Yes, I did.
Q: Okay. What did you discover?
A: Well, I spoke with the foreman on the truck. I spoke with a couple of the guys on the truck. And they told me that Maurice had had words prior to that date with another guy on the truck, which name was Larry Warren. And they told me the following day that Maurice got into an altercation the guy by the name of Lonnie Thompson.
So, I spoke with the supervisor on the truck and asked him who did he thought had really initiated the problem, and he told me that it was really Maurice, that the guys wasn’t giving him a problem, it was him that was initiating it.

It is obvious that the Commission determined that the failure to produce actual witnesses to the altercation by the appointing authority, persons whose statements could be subjected to close scrutiny, constituted a breach of the standard of proof required in these proceedings.

The lack of evidence available to the Commission and not presented at the hearing is also demonstrated through the testimony of Mr. Joseph:

Q: All right. After the incident, the most recent incident with Lonnie Thompson, did you have a disciplinary hearing?
A: Yes, we did.
Q: Okay. What was at the disciplinary hearing?
A: Myself, Jerome Marshall, which is my Q & A, E.J. McMillian; he was the foreman on the truck, Lonnie Thompson, Larry Warren, Eddie Williams, and Dan Eagan, which is my planning scheduler, and Maurice Stewart.

| r,These witnesses clearly had more competent evidence of misconduct than Mr. Joseph, and they were not called to testify at the hearing.

Finally, and more startling, is the further testimony of Mr. Joseph:

Q: Do you have any knowledge of why he was given a 20 days instead of a 3 day?
A: Well, I spoke with the Chief of networks, Eric Kelly, and he said he had reviewed his record and he knew the Maurice from certain incidents that had happened with Maurice. And he was the one who changed it from the three day to the 20 day suspension.

The collective testimony, above all, indicates the cavalier manner in which this matter was handled by the appointing authority, and supports the decision of the Commission to reject the recommendation of the hearing examiner.

DECREE

For the reasons stated herein, we affirm the judgment of the Civil Service Commission vacating the Order of Suspension of Maurice Stewart.

AFFIRMED.

BAGNERIS, J., dissents with reasons.

LBAGNERIS, J.,

dissents with reasons.

I respectfully dissent from the majority opinion, which affirms the judgment of the Civil Service Commission vacating the Order of Suspension of Maurice Stewart. Rather, I find that the Commission was arbitrary and capricious in overruling the Board’s decision to discipline Stewart.

Although the Board presented only Joseph to testify at the Commission hearing, it is clear from his testimony, and the documentary evidence submitted, that the disciplinary action was warranted. Joseph testified that he had firsthand knowledge of Stewart’s history of conduct problems from the time Stewart was first transferred into his zone in early 2001. Joseph explained how he personally investigated the incident that resulted in the July 2001 suspension, as well as the most recent suspension. Moreover, Joseph testified, in great detail, how he interviewed all witnesses, including Stewart, before concluding that Stewart was the aggressor in the August 6th altercation.

The record of the August 14th disciplinary hearing further demonstrates that Joseph, Stewart and five witnesses to the incident all took part in the hearing. The outcome of the investigation and hearing was the recommendation of a three-day suspension. Joseph explained that Eric Kelly, the Chief of Networks, thereafter increased the suspension to twenty | ?days, given his own knowledge of Stewart’s disciplinary record. The letter from the Board, advising Stewart of the suspension, also confirms the fact that Stewart’s prior record was a consideration in the imposition of the suspension.

To support a disciplinary action against a civil service employee, the Appointing Authority must demonstrate, by a preponderance of the evidence, that the conduct did in fact impair the efficiency and orderly operation of the public service. Newman v. Department of Fire, 425 So.2d 753, 754 (La.1983). When asked at the Commission hearing if Stewart’s conduct interfered with the operation of the Department, Joseph specifically testified that it did interfere, and that the work of the crew was interrupted. After a thorough review of the record, I find that the Board presented sufficient evidence and carried its burden of proof to support the disciplinary action taken against Stewart.

Accordingly, I find that the Commission acted arbitrarily and capriciously in modifying the decision of the Board. Thus, I would reinstate the twenty-day suspension imposed on Stewart.

      . I further note that the Commission Hearing Officer, after considering the live testimony of both Joseph and Stewart, found that the Board carried its burden of proof.