text:
    RED STICK CONFECTIONARIES, INC. v. COMMERCIAL UNION INSURANCE, CO., et al.
    No. 12278.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 20, 1978.
    Writ Refused Jan. 19, 1979.
    Stewart M. Thomas, Baton Rouge, of counsel, for plaintiff-appellee, Red Stick Confectionaries, Inc.
    Aubrey L. Moore, Baton Rouge, of counsel, for defendant-appellant, Commercial Union Ins. Co.
    John R. Olds, Baton Rouge, of counsel, for defendant-appellant, Conrad Adams.
    Robert J. Conrad, Jr., New Orleans, of counsel, for exceptor-appellee, A.I.C.C.O.
    Before SARTAIN, CHIASSON and EDWARDS, JJ.
   EDWARDS, Judge.

Defendants, Commercial Union Insurance Company and Conrad Adams, appeal an adverse judgment of the trial court which held them liable, jointly and in solido, to plaintiff, Red Stick Confectionaries, Inc., for the sum of $3,100 (less a $250 deductible) under a “cancelled” insurance policy, plus statutory penalties and attorney’s fees of $1,000.

The pertinent facts are not in dispute.

Red Stick obtained, through Adams’ insurance agency, an automobile fleet insurance policy issued by Commercial. The policy was effective for a one year period from June 13, 1974 to June 13, 1975.

Additionally, Red Stick, with the aid of Adams, obtained financing for the substantial premium generated by the policy through A.I.C.C.O., a premium financing concern. The finance agreement called for monthly payments, and conferred an irrevocable power of attorney on A.I.C.C.O. to cancel the policy should Red Stick default under the agreement.

After the January, 1975 installment payment was not received timely, A.I.C.C.O., on February 13, 1975, sent, pursuant to the power of attorney, a “Notice of Cancellation” (effective February 23, 1975) on the policy to Red Stick, and a copy thereof to Adams. Subsequently, Red Stick paid this installment and received a notice of reinstatement.

However, on February 25, 1975, Adams sent a memo to Commercial requesting that direct notice of cancellation be sent to Red Stick on two policies, one of which was the policy in question, for non-payment of premium. On February 25, 1975, Commercial mailed a notice of cancellation on the policy in question (effective March 7, 1975) to Red Stick, with the address given as “1687 Wooddale Court, Baton Rouge, La.”

On May 5, 1975, one of Red Stick’s vehicles was involved in a collision. Red Stick filed a claim based on this accident and was denied coverage by Commercial, which contended that the policy had been cancelled.

Thereafter, Red Stick filed this suit against Commercial for the damage sustained in the accident plus penalties and attorney’s fees under LSA-R.S. 22:658 for failure to pay the claim, contending that there was coverage and that it did not receive notice of cancellation. Additionally, Red Stick filed alternative claims (in the event Commercial’s cancellation was effective) against A.I.C.C.O. for return of premium payments, and against Adams for negligence in cancelling the policy and failing to notify Red Stick of the cancellation.

Various third party demands were filed among the defendants. All the third party demands were severed from the main demand, and are not before us on this appeal.

Prior to trial, A.I.C.C.O. filed a motion for summary judgment on the main demand. This motion was granted by the trial court, as evidenced by a minute entry of January 20, 1978. However, there is no signed judgment on this motion, nor is there any thing in the record to indicate that a judgment was ever signed.

After trial on the merits, the trial judge found: that Red Stick’s correct address at the time the policy was written was 4230 Jeffery Drive; that the agent erred in not using this correct address; that the notice of cancellation was not sent to this address; and that the purported cancellation was not effective.

Commercial contends that the trial court erred: 1) in finding that the cancellation was not effective; 2) in awarding penalties and attorney’s fees; and 3) in granting A.I.C.C.O.’s motion for summary judgment.

Adams maintains that the trial court erred: 1) in holding him liable; 2) in awarding penalties and attorney’s fees against him; and 3) in granting A.I.C.C.O.’s motion for summary judgment.

Commercial’s Appeal

Commercial contends that the policy in question was effectively cancelled on March 7, 1975, since the notice of cancellation was mailed to Red Stick at the address stated on the policy.

LSA-R.S. 22:636.1(D) provides in pertinent part:

“No notice of cancellation of a policy to which Subsection B or C applies shall be effective unless mailed or delivered by the insurer to the named insured at least twenty days prior to the effective date of cancellation; provided, however, that where cancellation is for nonpayment of premium at least ten days notice of cancellation accompanied by the reason therefor shall be given . . . ”

Our Supreme Court stated in Broadway v. All-Star Insurance Corporation, 285 So.2d 586 (La.1973) at p. 539, in interpreting a similar notice requirement under LSA-R.S. 22:636:

“The purpose of notice of cancellation is to make known to the insured that his policy is being terminated and to afford him sufficient time to obtain other insurance protection, (citation omitted).
“An interpretation which permits a deposit in the mails to conclusively terminate coverage undermines the purpose of the notice.”

The Court there held that affirmative proof of non-delivery of the statutorily required notice rendered the cancellation ineffectual.

Such is the situation in the instant case. The record supports the findings that the notice was mailed to an incorrect address and that Red Stick received no notice of cancellation. Accordingly, such notice, although mailed, is rendered ineffectual. Broadway, supra; Automobile Club Insurance Co. v. Aaron, 296 So.2d 464 (La.App. 4th Cir. 1974), writ refused, 300 So.2d 186 (La.1974).

On the issue of penalties and attorney’s fees, we believe that these items were properly assessed in this instance. Commercial had knowledge of Red Stick’s correct , address and nonetheless sent the notice of cancellation to an incorrect address.

This evidence is sufficient to support the trial court’s award of penalties and fees under LSA-R.S. 22:658. We find no error.

Finally, Commercial contends that the trial court erred in granting A.I.C.C.O.’s motion for summary judgment and in dismissing A.I.C.C.O. from the main demand.

As we noted above, there is no signed judgment in the record granting this motion. Accordingly, we do not reach this contention inasmuch as it is not properly before us.

Adams’ Appeal

The trial court held Adams liable, jointly and in solido, with Commercial for the damage sustained by Red Stick in the accident which should properly have been covered by the automobile fleet insurance policy. We believe this to be error.

There is no allegation in Red Stick’s petition, nor has there been any showing made that a solidary obligation exists between Adams and Commercial in favor of Red Stick.

Red Stick brought this suit as a result of a coverage dispute with Commercial. The claim asserted against Adams is in the alternative and is for damages in the event the coverage issue should be determined adversely to plaintiff. Plaintiff has succeeded on the coverage issue, and has asserted no other claim against Adams.

While questions may still exist regarding Adams’ conduct concerning this policy, such is not a matter to be resolved on this appeal.

For the above reasons, the judgment appealed is reversed insofar as it held Conrad Adams liable to plaintiff, and the judgment is affirmed in all other respects at Commercial Union Insurance Company’s cost.

REVERSED IN PART, AFFIRMED IN PART.

      . Evidence át trial indicated that the effective date may have been July 13, 1974 however this is not material for purposes of our review.

      . The testimony reveals that A.I.C.C.O. had previously issued other notices of cancellation to encourage delinquent payments, although the policy had never been cancelled by the insurer. On such occasions, A.I.C.C.O. would promptly issue notices of reinstatement upon receipt of the tardy payment.

      . The notice of cancellation on the other policy was mailed the same day and listed Red Stick’s address as “4230 Jeffery Drive, Baton Rouge, La.”


source: Caselaw Access Project

author: SARTAIN, Judge.

license: Public Domain

text:
    Tony WILSON, Husband, Plaintiff and Appellant, v. Virginia Watkins WILSON, Defendant and Appellee.
    No. 12285.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 20, 1978.

      Ronald L. Menville, Houma, for plaintiff and appellant.
    H. Sanders O’Neal, Houma, for defendant and appellee.
    Before SARTAIN, PONDER and EDWARDS, JJ.
   SARTAIN, Judge.

This litigation presents a single issue of law, namely, may a mother seek an execu-tory judgment for past due child support from the father after the child has reached the age of majority? The district court held that she could and overruled the father’s peremptory exception of no right of action.

The father, Tony Wilson, now appeals from a judgment awarding the mother, Virginia Watkins Wilson, an executory judgment for child support payments which accrued during the minority of Angela Jane Wilson. Only the exception of no right of action is urged as error. We affirm.

The Louisiana Supreme Court recently faced the same issue in Halcomb v. Halcomb, 352 So.2d 1013 (La.1977) and at p. 1017 stated:

“We agree that the wife may no longer institute original proceedings for the support of a child over whom she had custody after the child has reached majority; nor can she seek an increase of an award for the child’s future support after the child has reached majority. But this effect of a child’s majority does not apply to a motion by the mother to whom the award was made for the child’s support to have a child support award in arrears determined and made executory. The latter situation is distinguishable from the former in that an initial suit for support or a suit to increase a past award seeks to initiate a new claim on behalf of the adult child when the law has declared him capable of administering his own affairs and no longer entitled to child support; whereas, the latter situation involves an effort by the party to whom the award is due (the wife, not the child) to have determined and declared executory unpaid sums due as child support in a judgment of court in her favor rendered during the child’s minority.

For the reasons given in Halcomb, above, the judgment of the district court is affirmed at appellant’s cost.

AFFIRMED.


author: EDWARDS, Judge.

text:
    Gracie WHITE v. BOARD OF SUPERVISORS OF SOUTHERN UNIVERSITY
    No. 12290.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 20, 1978.

      J. Michael Cutshaw, Baton Rouge, of counsel, for plaintiff-appellant Gracie White.
    Julius X. Johnson, Asst. Atty. Gen., Baton Rouge, of counsel, for defendant-appellee Board of Supervisors of Southern University-
    Before SARTAIN, CHIASSON and EDWARDS, JJ.
   EDWARDS, Judge.

This is an appeal by plaintiff, Gracie White, from a judgment of the trial court which dismissed her suit against the Board of Supervisors of Southern University for damages resulting from her alleged wrongful termination.

White was employed as Counselor-Dean of Women, Resident Director of Progress Hall, a dormitory at Southern. She began her employment in 1971 and was employed under successive one-year contracts. In August, 1976, she received a contract of employment for the 1976-77 academic year at a salary of $6,698, plus the use of an apartment in the dormitory. She was an unclassified employee and not a part of the tenured faculty.

By a letter of August 9, 1976, from Clarence Marie Collier the Vice President for Student Affairs and Community Services, White was informed that she was being placed on probationary status for the fall semester. The letter further stated:

. . Another evaluation of your performance will be made. If a marked improvement is not shown, I am going to request the termination of your services effective December 18, 1976.”

White was further informed of the specific complaints regarding her work performance in a letter of September 22, 1976, from Helen M. Barron the Dean of Women. Additionally, White had personal conferences with Collier and Barron.

Subsequently on December 21, 1976, Collier wrote a letter concerning White to Dr. Roosevelt Steptoe the Vice President of Southern. Collier outlined the situation with regard to White’s job performance, stated that there was no marked improvement in White’s performance, and recommended that White be dismissed for willful neglect of duty and insubordination. Dr. Steptoe approved the dismissal and informed White by letter of December 27, 1976, that her employment was terminated as of December 31, 1976. Dr. Steptoe requested that White relinquish “all dormitory keys and other university properties.”

The trial judge in Oral Reasons for Judgment found: that there was just cause for White’s termination; that White was provided with a grievance procedure, as detailed in Southern’s handbook, to appeal her dismissal; and that White failed to employ this grievance procedure. The trial judge directed Southern to give White a reasonable time, not to exceed fifteen (15) days, to remove her personal belongings from the dormitory apartment, and dismissed White’s suit.

White assigns seven (7) errors allegedly committed by the trial court, which can be categorized into three areas: 1) denial of due process; 2) breach of contract; and 3) wrongful eviction.

First, White contends that Southern violated her constitutional rights by denying her procedural due process.

Due process requires that one be apprised of the charges or complaints and be given a fair opportunity to defend by confronting the witnesses against him. U.S. Const. Amend. XIV; La.Const. art. 1, see. 2. However, no set or fixed procedure is sacramental, rather each ease must turn on its own facts. Ferguson v. Thomas, 430 F.2d 852 (5th Cir. 1970).

The evidence supports the finding that Collier and Barron advised White of the various reasons for dissatisfaction with her job performance. These same complaints resulted in White’s dismissal.

Southern, as the trial judge noted, provides a three step grievance procedure for employees to appeal university actions, when they feel they are being treated unjustly. This procedure is spelled out in written form in Southern’s handbook and was available to White. Thomas Butler, Assistant Director of Personnel at Southern, testified that he discussed the grievance procedure with White and advised her of its availability.

Consequently, White was given notice of the charges and she was afforded a fair opportunity, via Southern’s established grievance procedure, to defend against these charges. She, however, declined to exercise her due process option.

We find that Southern satisfied the requirements of due process in this case.

Second, White contends that Southern breached the contract of employment and that the trial court erred in finding that she was discharged for cause.

White bases her allegation that Southern breached the employment contract on the disciplinary actions taken against her. She argues that Southern utilized probation as a sanction for her deficient performance, when such was not a penalty listed in Southern’s handbook and when more stringent sanctions, such as suspension without pay, were appropriate.

The testimony in the record indicates that Southern elected to use probation as a less strict form of discipline in an effort to give White an opportunity to improve her performance and retain her job, despite the fact that some of the enumerated offenses were cause for immediate termination. We do not believe that this conduct amounts in any way to a breach of the employment contract.

Regarding the issue of just cause for White’s termination, we find that the evidence supports the trial court’s finding that there was just cause for the dismissal. We find no manifest error.

Third, White contends that Southern wrongfully evicted her from the dormitory apartment provided in connection with her employment, and that she is entitled to damages.

The paucity of evidence on this issue indicates that in January, 1977, subsequent to White’s termination and after her refusal to vacate the dormitory apartment, Southern changed the locks on this apartment, but continued to allow her access to the apartment to remove her belongings.

Southern had the right to evict White. In this instance however, Southern failed to follow the statutory procedure and consequently, is liable for damages. Rivers v. Tessitore, 165 So.2d 888 (La.App. 4th Cir. 1964); LSA-C.C.P. art. 4702.

We believe an award of $250 as damages for wrongful eviction is appropriate in view of the evidence in the record.

For the above reasons, the judgment appealed is reversed insofar as it denied appellant damages for wrongful eviction and judgment is herein rendered in favor of appellant and against Southern in the amount of $250.

The judgment of the trial court is affirmed in all other respects. Costs are to be paid one half by White and one half by Southern. See Segura v. Louisiana Architects Selection Board, 362 So.2d 498 (La. 1978).

REVERSED IN PART, RENDERED AND AFFIRMED IN PART.


author: CHIASSON, Judge.

text:
    B. E. WELCH v. CROWN-ZELLERBACH CORP. et al.
    No. 12405.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 20, 1978.

      H. O. Lestage, III, DeRidder, for defendants-relators.
    Charles B. W. Palmer, Amite, for plaintiff-respondent.
    Before SARTAIN, CHIASSON and EDWARDS, JJ.
   CHIASSON, Judge.

To understand the current posture of this litigation, we believe it is necessary to briefly explain its history and then provide a statement of the case as it now appears before us.

HISTORY AND STATEMENT OF THE CASE

On April 28, 1971, Barney Edward Welch (Welch) filed suit against Robert Campbell, Inc. (Campbell) and its insurer, Southern Casualty Insurance Company (Southern), for individual and solidary liability in a workmen’s compensation action, suit number 38,841 of the Twenty-First Judicial District Court in and for the Parish of Tangi-pahoa. Austin Carpenter (Carpenter) was joined as a defendant in this suit. Welch attempted to also join Crown Zellerbaeh Corporation and its insurer (Crown Zeller-bach), but this action was dismissed. Before Crown Zellerbaeh was dismissed from suit number 38,841, Welch filed a separate suit against Crown Zellerbaeh on the same workmen’s compensation claim. The lower court rendered a judgment in favor of Welch against Campbell, Southern, and Carpenter for workmen’s compensation benefits, penalties, legal interest, attorney’s fees, medical expenses and costs. Campbell and Southern appealed, but no appeal was taken by Carpenter. This court reversed the lower court’s decision insofar as it pertained to defendants Campbell and Southern, Welch v. Robert Campbell, Inc., 316 So.2d 822 (La.App.1st Cir. 1975), and the Louisiana Supreme Court denied Welch’s application for certiorari or writ of review, Welch v. Robert Campbell, Inc., 321 So.2d 523 (La.1975). The judgment in suit number 38,841 is therefore final.

The separate suit that Welch filed against Crown Zellerbaeh was filed on October 11, 1973 and bears number 43,044 of the Twenty-First Judicial District Court in and for the Parish of Tangipahoa.

On February 10, 1976, Welch filed a pleading titled “First Supplemental And Amending Petition And Third Party Demand” in suit number 43,044 by which he sought to join Campbell and Southern as third party defendants. We must note at this point that at the time this petition was filed there was no reconventional demand filed by Crown Zellerbaeh against Welch. Therefore, plaintiff in the main demand (Welch) cannot assert a third party action against Campbell and Southern. CCP Article 1111 .

Clearly the third party action as contemplated by the Code of Civil Procedure does not provide for a plaintiff asserting a defendant’s third party rights. Furthermore, CCP Article 1112 provides:

“The defendant in reconvention likewise may bring in his warrantor, or any person who is or may be liable to him for all or part of the reconventional demand, and the rules provided in Articles 1111, and 1113 through 1115 shall apply equally to such third party actions.”

Welch was not a defendant in reconvention and therefore CCP Article 1112 does not apply. Therefore, the addition of Campbell and Southern at this point is a joinder action. This was an attempt on Welch’s part to again sue Campbell and Southern on the same cause of action which had been decided in suit number 38,841.

After the joinder of Campbell and Southern in suit number 43,044, they filed decli-natory and dilatory exceptions to Welch’s February 10, 1976 petition on the basis of improper use of third party action, insufficiency of citation, improper service and vagueness. On March 2, 1976, Crown Zel-lerbach filed peremptory exceptions of prescription, peremption and res judicata. On April 26, 1976, Campbell and Southern filed a peremptory exception of res judicata.

On April 30, 1976, Welch’s motion for a preliminary judgment in workmen’s compensation under La.R.S. 23:1316 was filed and denied the same day.

Also on April 30, 1976, all of the exceptions were argued and the court took them under advisement. On January 24, 1977, a judgment was signed sustaining Crown Zel-lerbach’s exceptions and dismissing Welch’s suit against Crown Zellerbach. Welch’s timely motion for new trial was denied and he was then granted a devolutive appeal.

Since Welch’s appeal as to Crown Zeller-bach is an issue in this writ application, we will first explain its disposition and then return to the proceedings in the trial court.

On October 17, 1977, the First Circuit Court of Appeal affirmed the trial court’s judgment sustaining Crown Zellerbach’s exceptions and dismissing Crown Zellerbach from the suit. B. E. Welch v. Crown Zeller-bach Corp., 351 So.2d 1255 (La.App.1st Cir. 1977).

Welch applied for and was granted writs to the Supreme Court. Welch v. Crown Zellerbach Corp., 353 So.2d 1045 (La.1978).

On May 22, 1978, the Louisiana Supreme Court reversed this court and the trial court, holding that Crown Zellerbach’s exception of prescription was sustained in error and remanded the case for further proceedings. Welch v. Crown Zellerbach Corp., 359 So.2d 154 (La.1978).

Approximately two months after the trial court had rendered the judgment sustaining Crown Zellerbach’s exceptions, the trial court on April 6, 1977 signed a judgment maintaining Campbell’s and Southern’s exception of res judicata and dismissing plaintiff’s action as to them. No appeal was taken from this judgment. On April 12, 1977, Welch filed a pleading titled “Motion For New Trial And/Or To Set Aside For Judgment.”

On December 2, 1977, Welch filed a pleading titled “Petition To Annul Judgment” alleging the judgment of April 6, 1977 to be null by virtue of the court’s lack of jurisdiction to render and sign such a judgment because of the pending appeal. Campbell and Southern filed a peremptory exception of no cause of action to the petition to annul, which exception was maintained by judgment rendered on February 17, 1978.

On February 21, 1978, Welch filed a motion for new trial.

On February 27, 1978, the judgment rendered February 17, 1978 was signed and notice was mailed to Welch’s attorney.

Two days after the Supreme Court had rendered its decision in Welch v. Crown Zellerbach Corp., supra, on May 24, 1978, Welch filed a pleading titled “Motion To Assign (1) Rule To Compel (2) New Trial: Alternatively Motion For Summary Judgment,” and a show cause order was signed setting a hearing. This motion basically asked for a trial to annul the judgments of April 6, 1977 and February 27, 1978 or a summary judgment annulling these two judgments. On June 5, 1978, Campbell and Southern filed a pleading titled “Motion For Rule To Show Cause Why Plaintiff’s Motion Should Not Be Stricken And Previous Order To Show Cause Should Not Be Recalled.” Campbell and Southern urged in their motion that since Welch did not appeal either the April 6,1977 or the February 27, 1978 judgments, they are final and plaintiff should not be allowed to proceed any further.

On June 16, 1978, the May 24, 1978 and June 5, 1978 rules to show cause were consolidated and the matter submitted on written memorandums.

On July 27, 1978, the trial court rendered two judgments. One judgment annulled and vacated the judgment sustaining the exceptions of Campbell and Southern. The trial judge did not specify which judgment he was annulling or vacating. The second judgment granted Welch a new trial as to the judgment of February 27, 1978. These last two judgments are the ones from which Campbell and Southern applied for writs.

On September 26, 1978, the First Circuit Court of Appeal issued an alternative writ and stayed the proceedings in the lower court.

JURISDICTION

Welch and the Honorable Gordon E. Cau-sey assert that on February 16, 1977, when the order for devolutive appeal was granted from the judgments sustaining Crown Zel-lerbach’s exceptions, the trial court was divested of jurisdiction over the case under CCP Article 2088, and therefore, any subsequent judgments rendered by the trial court were null and void.

The judgment of January 24, 1977 reflects that only Crown Zellerbaeh’s peremptory exceptions were sustained and suit was dismissed as to Crown Zellerbach. The minutes of February 16, 1977 granting Welch a devolutive appeal also reflect that only the judgment of January 24, 1977, sustaining Crown Zellerbach’s peremptory exceptions, was being appealed. The First Circuit Court of Appeal did not issue a stay order in this action. Neither this court nor the Louisiana Supreme Court in opinions concerning that appeal ever considered that any judgment relating to Campbell’s and Southern’s exception was before them. Both of these opinions dealt only with the sustaining of Crown Zellerbach’s peremptory exceptions as to Welch. B. E. Welch v. Crown Zellerbach Corp., 351 So.2d 1255 (La.App.1st Cir. 1977) and B. E. Welch v. Crown Zellerbach Corp., 359 So.2d 154 (La.1978).

The January 24, 1977 judgment was a final judgment as between Welch and Crown Zellerbach. We recognize that under the Louisiana Code of Civil Procedure multiplicity of appeals and piecemeal litigation are not favored. However, our Code of Civil Procedure does provide for the rendition of a partial final judgment. CCP Article 1915 provides in part:

“A final judgment may be rendered and signed by the court, even though it may not grant the successful party all of the relief prayed for, or may not adjudicate all of the issues in the case, when the court:
(1) Dismisses the suit as to less than all of the plaintiffs, defendants, third party plaintiffs, third party defendants, or interveners;
“If an appeal is taken from such a judgment, the trial court nevertheless shall retain jurisdiction to adjudicate the remaining issues in the case.”

In the instant case the trial court dismissed plaintiff’s suit as to one defendant [Crown Zellerbach] upon its sustaining the peremptory exceptions Crown Zellerbach had presented.

The article clearly states “If an appeal is taken from such a judgment, the trial court nevertheless shall retain jurisdiction to adjudicate the remaining issues in the case.” (emphasis supplied).

Further CCP Article 2088 provides:
“The jurisdiction of the trial court over all matters in the case reviewable under the appeal is divested, and that of the appellate court attaches, on the granting of the order of appeal and the timely filing of the appeal bond, in the case of a suspensive appeal or on the granting of the order of appeal, in the case of a devolutive appeal. Thereafter, the trial court has jurisdiction in the case only over those matters not reviewable under the appeal, including the right to:
(1) Allow the taking of a deposition, as provided in Article 1433;
(2) Extend the return day of the appeal, as provided in Article 2125;
(3) Make, or permit the making of, a written narrative of the facts of the case, as provided in Article 2131;
(4) Correct any misstatement, irregularity, informality, or omission of the trial record, as provided in Article 2132;
(5) Test the solvency of the surety on the appeal bond as of the date of its filing or subsequently, consider objections to the form, substance, and sufficiency of the appeal bond, and permit the curing thereof, as provided in Articles 5123, 5124, and 5126;
(6) Grant an appeal to another party;
(7) Execute or give effect to the judgment when its execution or effect is not suspended by the appeal;
(8) Enter orders permitting the deposit of sums of money within the meaning of Article 4658 of this Code; or
(9) Impose the penalties provided by Article 2126, or dismiss the appeal, when the appellant fails to timely pay the estimated costs or the difference between the estimated costs and the actual costs of the appeal.”

This article is to be understood to divest the trial court of jurisdiction over the case when the appeal is taken only with respect to those matters which are reviewable under the appeal. Therefore, since the January 24, 1977 judgment mentioned only the sustaining of peremptory exceptions and the dismissal of plaintiff’s suit as to Crown Zellerbach, it was the only matter reviewable on appeal and therefore only this fell under the divesting effect of CCP Article 2088. Walker v. Jones, 257 La. 404, 242 So.2d 559 (1970).

While we appreciate the problems involved in this lengthy and procedurally complicated case, we find that the trial court was not divested of jurisdiction as to Campbell’s and Southern’s exception when Welch was granted its devolutive appeal as to the sustaining of Crown Zellerbach’s peremptory exceptions.

Having determined that the trial court retained jurisdiction over Campbell and Southern, we now proceed to the actions taken by the trial court subsequently.

SUBSEQUENT ACTIONS

On April 6, 1977, the trial court signed a judgment sustaining Campbell’s and Southern’s exception of res judicata and dismissing plaintiff’s cause of action against them. No appeal was ever taken from this judgment. However, on April 12, 1977, Welch filed a pleading titled “Motion For New Trial And/Or To Set Aside For Judgment.” This pleading was not acted upon by the trial judge but for the reasons given below, we believe that Welch abandoned this motion for new trial if indeed it was intended as such.

Welch stated his reasons for filing this motion were (1) that he had been denied a motion for new trial on February 7, 1977, and that (2) when his appeal was granted on February 16, 1977, that under CCP Article 2088, the trial court was divested of jurisdiction in the case.

It is important to note here that Welch has consistently asserted that once the appeal was granted as to the judgment of January 24, 1977 sustaining Crown Zeller-bach’s peremptory exceptions, the trial court was divested of jurisdiction. Therefore, it could easily be construed that when he filed the motion of April 12,1977, he was not asking for a new trial as to Campbell’s and Southern’s exception of res judicata since he believed his February 7, 1977 motion for new trial included all the defendants in the case. We need not go that far, however, for several reasons. Welch in his brief stated . .we admit Welch is individually barred from any money demands against Campbell and So. Casualty Ins. Co.”, and further argued that if Campbell and Southern were aggrieved by the January 24, 1977 judgment, they should have filed a motion for new trial as it was not Welch’s place to file this motion for them. Welch did not even discuss this April 12, 1977 motion in his brief and, in fact, asserted that the relief he prayed for was an annulment of the April 6, 1977 judgment. This is further supported by Welch’s next action on December 2, 1977, when he filed a petition to annul the judgment. For these reasons, we believe that Welch abandoned any motion for new trial he may have been asserting in the April 12, 1977 motion.

We now proceed to the December 2, 1977 petition to annul the judgment of April 6, 1977. In this petition Welch alleged that since the trial court lacked subject matter jurisdiction because of the appeal perfected, it constituted ill practice on the part of Campbell and Southern to obtain the signing of the April 6, 1977 judgment. Apparently, Welch was alleging both an absolute nullity based on CCP Article 2002(3) [lack of subject matter jurisdiction of the court] and a relative nullity based on CCP Article 2004 [a final judgment based on fraud or ill practice]. We must note here that having found that the trial court retained jurisdiction, the charge of fraud and ill practice cannot stand.

On December 15, 1977, Campbell and Southern filed a peremptory exception alleging no cause of action to the petition to annul. The exception was based on their argument that under CCP Article 2088, the trial court retained jurisdiction and, therefore, all of the grounds Welch alleged as a basis for a nullity of the April 6, 1977 judgment were without foundation. On February 17, 1978, a hearing was held on this exception and a judgment rendered sustaining the exception and dismissing Welch’s petition.

On February 21, 1978, Welch filed a motion for new trial. La.CCP 1974 provides that when notice of the signing of a judgment is required under Article 1913, (which it was in this case) the delay for applying for new trial begins to run on the day after the clerk has mailed, or the sheriff has served, the notice of signing of judgment as required by Article 1913. On February 27, 1978, the judgment was signed and notice of the signing was sent to the parties. The motion of February 21, 1978 was a request to the trial court for the reopening of the proceedings for further evidence in the interests of justice. Under La.CCP Article 1631 and Article 1632 the trial court may exercise its discretionary power and grant a reopening of the proceedings. Thompson v. Bullock, 236 So.2d 892 (La.App.3rd Cir. 1970). When the court signed the judgment on February 27, 1978 without reopening the case it, in effect, denied the motion. Chamblee v. Chamblee, 340 So.2d 378 (La. App.4th Cir. 1976).

Under CCP Article 1974, Welch had seven days, starting on February 28, 1978, to apply for a new trial. Welch failed to do so. Instead, on May 24, 1978, after all delays for appeal had run on the judgment of February 27, 1978, Welch filed a pleading titled “Motion To Assign (1) Rule To Compel (2) New Trial: Alternatively Motion For Summary Judgment.” Welch alleged the nullity of both the April 6, 1977 judgment and the February 27, 1978 judgment, and prayed for a new trial and/or a summary judgment setting aside the null judgments.

On June 5, 1978, Campbell and Southern filed a pleading titled “Motion For Rule To Show Cause Why Plaintiff’s Motion Should Not Be Stricken And Previous Order To Show Cause Should Not Be Recalled.” Campbell and Southern alleged that Welch had appealed neither the April 6,1977 judgment nor the February 27, 1978 judgment, and generally objected to this new action by Welch. On June 16, 1978, the rules to show cause were consolidated and the matter submitted on written argument.

On July 27, 1978 two judgments were signed. When this court originally issued the writ, we were under the impression that one judgment had been rendered which both vacated a previous judgment of the trial court and granted a new trial. The record before us reveals there were two separate judgments rendered the same day. One judgment of July 27,1978 annulled and vacated the judgment sustaining the exceptions of Campbell and Southern without identifying the affected judgment. The second judgment of July 27, 1978 granted Welch a new trial as to the February 27, 1978 judgment. It was from these last two judgments that this writ was taken.

First, as to the July 27, 1978 judgment annulling and vacating Campbell’s and Southern’s exceptions, Welch is attempting by a rule to show cause to annul a judgment. This procedure does not comply with the general rule that an action of nullity should be asserted by a direct action. Nethken v. Nethken, 307 So.2d 563 (La. 1975); American Bank & Trust Company v. Marbane Investments, Inc., 337 So.2d 1209 (La.App.3rd Cir. 1976).

We find that Welch had no grounds for an action of an absolute nullity and therefore, under our jurisprudence, he is required to utilize an ordinary proceeding to annul a judgment. Having failed to do so, Campbell’s and Southern’s objections are well founded.

Also applicable here is the well established prncipal that an action of nullity may not be substituted for nor take the place of an appeal. Ghauvin v. Nelkin Insurance Agency, Inc., et al, 345 So.2d 132 (La.App.1st Cir. 1977), writ refused.

The second July 27,1978 judgment granted Welch a new trial as to the February 27, 1978 judgment. For the reasons stated previously, we hold the May 24, 1978 motion for new trial was untimely.

For these reasons, the writ of mandamus is made peremptory and the Honorable Gordon E. Causey, Judge of the Twenty-First Judicial District Court for the Parish of Tangipahoa is hereby directed to vacate, set aside and annul the judgments rendered in this case on July 27, 1978.

This case is remanded to the district court for further proceedings not inconsistent with this judgment. The stay of proceedings previously issued is hereby recalled and vacated.

We especially note that this decision does not affect the rights of Welch against Crown Zellerbach as specified in Welch v. Crown Zellerbach Corporation, 359 So.2d 154 (La.1978).

Additionally, we note that we do not have presented to us any rights Crown Zeller-bach may have as against Campbell and Southern and we therefore do not discuss these.

WRIT MADE PEREMPTORY AND CASE REMANDED.

      . “The defendant in a principal action by petition may bring in any person, including a code-fendant, who is his warrantor, or who is or may be liable to him for all or part of the principal demand.
      “In such cases the plaintiff in the principal action may assert any demand against the third party defendant arising out of or connected with the principal demand. The third party defendant thereupon shall plead his objections and defenses in the manner prescribed in Articles 921 through 969, 1003 through 1006, and 1035. He may reconvene against the plaintiff in the principal action or the third party plaintiff, on any demand arising out of or connected with the principal demand, in the manner prescribed in Articles 1061 through 1066.”


author: PONDER, Judge. COVINGTON, Judge,

text:
    SAM MARRS EQUIPMENT COMPANY, Plaintiff and Appellant, v. C. & J. PAINTING AND SANDBLASTING CO. et al., Defendant and Appellee.
    No. 12142.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 20, 1978.

      William D. Grimley, Baton Rouge, for plaintiff and appellant.
    James E. Durbin, Denham Springs, for defendant and appellee.
    Before LANDRY, SARTAIN, BLANCHE, COVINGTON and PONDER, JJ.
   PONDER, Judge.

Plaintiff appeals from the denial of recognition of a lien under LSA-R.S. 9:4801.1, the statute granting a privilege on immova-bles for unpaid rentals of movables under some circumstances.

The sole issue is the propriety of that judgment. We reverse and render.

L. A. Lard Oil Co., Inc. entered into a contract with C & J Painting & Sandblasting Contractors. The latter rented some movable equipment from the plaintiff, which, in accordance with the statute, served a copy of the rental agreement on Lard. Upon receiving the copy of the rental contract, a representative of Lard called plaintiff and according to his testimony “told Mr. Broussard that if I had known I would be liable for that equipment that was stated in the letter that I wouldn’t have let them brought it there and he said, don’t worry, we are going to go along with this fellow, he is just getting started in business and we are going to see that you are treated right on the price of the equipment. We are going to try to let him get in business. He is just getting in and we are going to do all we can to help him.” Plaintiff’s witnesses denied that such a conversation occurred. Mr. Broussard’s version was that Mr. Lard only wanted an explanation of why the letter was sent. Later, Mr. Lard called plaintiff again to tell that he “was very much concerned about the price of that equipment and I said, I just wish you would come out here and either get the man to complete the job or get it off my property” and that plaintiff’s representative told him “you are not going to be charged for the full price of the equipment.” A representative of Lard also called plaintiff when Elliott abandoned the job to advise of the abandonment and to ask that the leased property be picked up. After some discussion plaintiff agreed that the rental would stop that day and the equipment would be picked up.

On the above facts the lower court did not base its decision on either estoppel or waiver. We agree with that conclusion.

The expression above quoted cannot be construed, we believe, as showing an intent to waive the right to a lien. Furthermore, we can find no estoppel because of any change in the position of Lard. At the time of the first telephone conversation, the privilege had already attached because of compliance with the statute. We cannot read the statute as giving Lard the power to require the removal of the equipment so as to avoid the privilege. His position, therefore, cannot have been changed.

Instead, evidently based upon defendant’s contentions in a memorandum filed in the record, the lower court based its decision upon plaintiff’s failure to prove continued use of the leased property in the following words:

“In the instant case there is no question that the rented property was placed on a construction site. However, it is the opinion of the Court that the defendant L. A. Lard Oil Company, Inc. has overcome the presumption as to the continued use of the leased property on their premises. The lessee of the equipment abandoned the job. It is the opinion of this Court that the burden thereupon shifted to the plaintiff to come forward with proof as to the continued actual use of the leased property in the repair of the tanks in order to establish liability upon the landowner. While the statute grants the privilege, it is still incumbant (sic) upon the plaintiff, lessor, to establish the amount which is due. This the plaintiff has failed to do in the instant case.”

We find this to be error. Under the statute the lessor has to prove that the equipment was located upon the premises and remained there for the period of time for which the privilege is claimed. The presumption is that the equipment was actually used. There is no requirement that the use be continued or continuous. The owner’s procedure to stop the rental in case of abandonment by the contractor is set forth in the statute.

Plaintiff sued for $2,400.93 together with legal interest from the date the sum was due plus the cost of recording the lien. However, it was pointed out that items sold and not leased amounted to $88.50 plus 6% sales tax thereon. The cost of the recording was not proved.

Under LSA-R.S. 9:4812, interest is due on the claim from recordation. Long Leaf Lumber, Inc. v. Svolos, 258 So.2d 121 (La. App. 2d Cir. 1972).

For these reasons the judgment dismissing plaintiff’s suit is reversed. There is now judgment herein in favor of plaintiff, Sam Marrs Equipment Company, and against L. A. Lard Oil Co., Inc. recognizing a lien in the amount of $2,307.12 together with legal interest thereon from September 29,1976 and all costs. This lien shall affect the following described property:

“North by U. S. Highway No. 190, approximately 134 feet, East by land of Joseph S. Jackson, South by Miley’s Subdivision, and West by Lots 1, 13, 12 and 11, of Square Nine of Shelly’s Homesites, the land being part of the 4.2 acres acquired by Shelly O’Neal from Joseph S. Jackson on February 18, 1948, by deed of record in Book 66, page 328 of the official records of Livingston Parish, Louisiana; and also being the identical property purchased by James D. Selman from Shelly O’Neal as per recordation of said deed in COB 69, page 486 of the Livingston Parish Public Records. Also described in accordance with survey by C. M. Moore, C. E. & Surveyor dated 21 March 1950 a plat of which is of record in COB 70 page 361 as follows: Commencing at a point 300 feet S. 36 degrees 30 min. west of extreme north corner of original tract of 4.2 acres, measure along south side of U. S. Highway No. 190, S. 36 deg. 30 min. west a distance of 131.8 feet and corner; thence leaving said Highway, measure S. 53 deg. 30 min. east 317 feet and corner; thence N. 0 deg. 20 min. east 163.4 feet and corner; thence measure N. 53 deg. 30 min. west 221 feet back to point of beginning.”
and
“A certain lot of land measuring 60 feet on U. S. Highway No. 190 by 169 feet, in depth between parallel lines, and starting on the south side of U. S. Highway 190 at the northwest corner of the first above described property; thence west in a westerly direction along the south side of said highway 60 feet or to the NE corner of Lot N of the Selman Subdivision; thence in a southerly direction along the east side of the said Lot N. 169 feet; thence in an easterly direction 60 feet; to the west side of the first above described property; thence north to point of beginning.”

The costs of this appeal are east against L. A. Lard Oil Co., Inc.

REVERSED AND RENDERED.

COVINGTON, Judge,

dissenting:

Under the lien statute, LSA-R.S. 9:4801.1, when the lessor of the leased equipment proves that the equipment was located upon and remained on the landowner’s property during the period of time for which the lien is claimed, there is formed “a rebuttable presumption” that the leased equipment was actually used in the construction work on the landowner’s property.

The trial judge made factual findings that the plaintiff had shown that the leased sandblasting equipment was placed upon and remained on the landowner’s property, but that the lessor had made certain representations to the landowner which caused it to allow the equipment to remain on its property although the lessee-contractor had abandoned the job, and which showed that the lessor was assisting the lessee beyond the mere leasing of the equipment. The trial judge then held that, based on these facts, the landowner, Lard, had successfully rebutted the presumption of LSA-R.S. 9:4801.1 so that the lessor, Marrs, was not entitled to a lien on Lard’s property.

The testimony of Marrs and Lard is in conflict. The trial judge chose to accept that of Lawson A. Lard, Jr., appellee’s president, over that of Jim Broussard, branch manager of Sam Marrs Equipment Company in Baton Rouge. Absent finding an abuse of the judge’s discretion, we should not disturb this determination of credibility of witnesses. Dyson v. Gulf Modular Corporation, 338 So.2d 1385 (La.1976); Rayner v. Rayner, 216 La. 1099, 45 So.2d 637 (1950).

The record reveals that the leased equipment was placed on Lard’s property. The requisite notice with a copy of the lease was sent to Lard. Upon receipt of the notice from Marrs of the lease, Mr. Lard immediately contacted the plaintiff; thereupon, Mr. Lard was informed of the purpose of the notice. After being informed that it was for the protection of plaintiff’s lien rights, Mr. Lard requested the plaintiff to remove the equipment from Lard’s property, stating to the plaintiff that Lard did not want to be liable for the rental of the equipment, as Lard had a contract with C. & J. Painting and Sandblasting Company for a fixed price. The plaintiff advised Lard not to worry, that the plaintiff was helping C. & J. get started in business. Later, Lard called the plaintiff to tell Marrs that the equipment was not properly operating, causing the work to be delayed. Lard experienced considerable difficulty in getting C. & J. to finish the work. C. & J. finally abandoned the job, necessitating that Lard get another contractor to complete the work. There was also another telephone call from the defendant Lard to the plaintiff about picking up the leased equipment, but Marrs refused to remove the equipment, informing Lard that its lease was with C. & J., not with Lard.

Despite the appellant’s contention, I do not feel that the trial judge erred in considering evidence as to the performance of the construction contract by C. & J., since the lessee’s performance was an integral part of the entire transaction, and the relationship between Marrs and C. & J. was more than mere lessor-lessee.

From his consideration of the foregoing factual situation, the trial judge expressed his opinion as follows:

“The Court is of the opinion that the plaintiff was assisting the defendant, C & J Painting and Sandblasting Company, beyond the mere rental of equipment to it. Further, that Mr. Lard would never have allowed the equipment to remain on his property after the first phone call, if it were not for the representations of the plaintiff.
“Liens are stricti juris and must be strictly construed against the lien holder. R.S. 9:4801.1 was added by Act 673 of 1975. It grants a privilege to the lessor of movable property or equipment used in construction or repair of any structure. Paragraph A thereof establishes a rebut-table presumption that the leased or rented movable property was actually used in the repair of the structure upon proof that said movable property was upon the construction site.
“In the instant case there is no question that the rented property was placed on the construction site. However, it is the opinion of the Court that the defendant L. A. Lard Oil Company, Inc. has overcome the presumption as to the continued use of the leased property on their premises. The lessee of the equipment abandoned the job. It is the opinion of this Court that the burden thereupon shifted to the plaintiff to come forward with proof as to the continued actual use of the leased property in the repair of the tanks in order to establish liability upon the landowner. While the statute grants the privilege, it is still incumbent upon the plaintiff, lessor, to establish the amount which is due. This the plaintiff has failed to do in the instant case.”

While I am somewhat concerned with the trial judge’s use of the term “continued use” of the leased equipment in his opinion, I believe, when the term is construed in context, that the trial judge was merely re-phrasing the statutory requirement of “use” during the period of time for which the lien is claimed and did not infer that only continued use of the lease equipment would meet the requisites of LSA-R.S. 9:4801.1. What the trial judge actually concluded was that Marrs had satisfactorily established the presumptive statutory requirements; but that Lard had successfully rebutted the presumption, so that Marrs was not entitled to a lien on the Lard property. I agree that Lard overcame the rebuttable presumption from the facts as found by the trial court.

Moreover, I am of the opinion that Lard’s plea of estoppel should be sustained. The doctrine of estoppel is applicable to this factual situation. A person who by his deed or conduct has induced another to act in a particular manner will not be permitted to adopt an inconsistent position, attitude or course of conduct and thereby cause loss or injury to the other. G. J. Deville Lumber Company, Inc. v. Chatelain, 308 So.2d 428 (La.App. 3 Cir. 1975), writ denied, 313 So.2d 239 (La.1975). The actions of the plaintiff misled Lard into believing that the plaintiff was actively interested in seeing that C. & J. completed this particular job, and that defendant would have no personal liability for rental payments on the equipment. The plaintiff can not now take an inconsistent position so as to cause loss to Lard. No one would normally expect to be held personally liable for rental charges under these circumstances so as to have a statutory lien attached to his property. Liens are stricti juris and must be strictly construed against the lien holder. Gauguin, Inc. v. Addison, 288 So.2d 893 (La.App. 1 Cir. 1973), writ denied, 293 So.2d 167 (La. 1974).

Furthermore, I feel that Marrs, through its actions, waived its lien rights on the Lard property. While it is true that under its contract with C. & J., Lard was not is a position to order C. & J. off the job when it received notice from Marrs of its claim of lien rights, Lard could have taken steps under the lien statute to protect itself; and undoubtedly would have done so except for the assurances of Marrs.

LSA-R.S. 9:4801.1 specifically gives the landowner the right to terminate the lien rights of the lessor under certain circumstances by the giving of written notice of nonuse of the equipment to the lessor, in the following language:

“If the leased or rented movable property is abandoned by the lessee or renter, or is not actually being used in the erection, construction, repair, or improvement of immovable property, or in connection with the erection, construction, repair or improvement of any building, structure, or other immovable property, then in that event, the owner, his authorized agent or representative, or any person with whom the owner has contracted shall give the lessor or renter of the movable equipment or property written notice of the nonuse of the equipment, in which case the lessor or renter is hereby granted the right to take physical possession of the property or equipment leased or rented immediately upon receipt of the written notice. As of the date of the giving of written notice to the lessor or renter as provided by this Subsection, the privilege provided by the Section shall terminate as to the particular lease or rental transaction involved.”

As stated in Wardlaw Bros. Garage, Inc. v. Thomas, 19 La.App. 241, 140 So. 108 (2 Cir. 1932):

“Liens may be lost in a number of ways; that is, by payment of the claim secured, by waiver expressly agreed to, or by waiver arising by implication from the facts and circumstances of the particular case.”

In the instant case, I find that the lien rights of Marrs were lost by implication from the peculiar facts and circumstances herein. The plaintiff in effect told Lard that the lease was between Marrs and C. & J. and that Marrs was not looking to Lard for payment. The facts, as found by the trial judge as stated above and with which finding I agree, support a finding that there was a waiver of its lien rights by Marrs. The conduct of Marrs “was wholly inconsistent with an intention to assert the lien, but was fully consistent with its waiver.” Wardlaw Bros. Garage, Inc. v. Thomas, supra. See also Martinez v. Therma-King Sales and Service Division, 346 So.2d 798 (La.App. 1 Cir. 1977), writ denied, 349 So.2d 884 (La.1977); Babineaux v. Grisaffi, 180 So.2d 888 (La.App. 3 Cir. 1965).

Accordingly, the trial court’s judgment rejecting the demands of the plaintiff, Sam Marrs Equipment Company, although based on different reasons, was correct in its result.

Therefore, I respectfully dissent.

      . See 9:4801.1 C.


author: PONDER, Judge.

text:
    Gerald J. ST. AMAND v. TEACHERS’ RETIREMENT SYSTEM of Louisiana.
    No. 12221.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 20, 1978.

      William D. Treeby, James C. Gulotta, Jr., New Orleans, of counsel for plaintiff-appellant Gerald J. St. Amand.
    William T. Reeves, Jr., Asst. Atty. Gen., Baton Rouge, of counsel for defendant-ap-pellee Teachers’ Retirement System of Louisiana.
    Before LANDRY, COVINGTON and PONDER, JJ.
   PONDER, Judge.

Plaintiff appeals from the dismissal of his suit for benefits under the teachers’ retirement system on a peremptory exception of no cause of action.

The issue is whether a former member of the teachers’ retirement system who has received at his request a refund of the accumulated contributions may thereafter sue the system for benefits. We affirm.

Plaintiff, a teacher, sustained a permanent hearing loss and back disability. His application to the defendant for disability retirement was denied. He resigned from the school system and withdrew his contributions to the retirement system. Thereafter he filed suit for disability benefits.

We believe the case to be controlled by the portion of La.R.S. 17:640, that reads as follows:

“. . . The payment of any such refund to a member of the retirement system who has withdrawn from service . shall discharge all obligations of the retirement system on account of any creditable service rendered by the member prior to payment of the refund, and acceptance of such refund by a member who has withdrawn from service . shall constitute a release of all accrued rights of every kind and nature against the retirement system.”

By this statute, we believe, the legislature has effectively removed the possibility of the court granting the plaintiff any relief. Perhaps, the more technically correct exception would be that of res judicata, the statute being in the nature of a complete release; but it might be said that the legislature provided that thereafter- there would be no cause of action.

Appellant, in effect, contends that the statute does not apply to his plea to be allowed to redeposit his contributions and thus to become a member of the retirement system. He further contends that the approval of reentry of those physically able to resume teaching and the refusal of reentry to those not physically able to resume teaching amounts to unconstitutional and inequitable discrimination against him because of his physical disability.

We seriously doubt that plaintiff’s becoming a member again would have the effect of reviving his claim for disability benefits accrued at the time he withdrew from the system. Under La.R.S. 17:640, the operative fact is not that of being a nonmember but that of the withdrawal of the contributions after resigning from the school system.

The statutes are quite clear that one who is not a member cannot become a member and so be authorized to redeposit the contributions unless he meets the requirements of Section 591. Plaintiff alleges that his disability prevents his meeting those requirements.

We find nothing constitutionally invalid in requiring that a member of the Teachers’ Retirement System be a teacher as defined by the statutes.

For these reasons the judgment is affirmed.

AFFIRMED.


author: COVINGTON, Judge.

text:
    Vernon A. SMITH, Sr., Appellant, v. LSU MEDICAL CENTER, Appellee.
    No. 12237.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 20, 1978.
    John E. Brockhoeft, New Orleans, for appellant Vernon A. Smith, Sr.
    Rutledge C. Clement, Jr., New Orleans, for appellee.
    Before LANDRY, COVINGTON and PONDER, JJ.
   COVINGTON, Judge.

This is an appeal by Vernon A. Smith, Sr., the Appellant, who is a classified employee holding the position of Administrative Assistant for the Department of Animal Care at the L.S.U. Medical Center, from an opinion of the State Civil Service Commission granting the Request for Summary Disposition of the Louisiana State University Medical Center in New Orleans (L.S.U. Medical Center), the Appointing Authority, on the basis that the denial of a merit step increase in pay is not a disciplinary action on the part of the Appointing Authority; thus, it is not appealable. The Commission, therefore, denied the appeal. We affirm.'

The Appointing Authority asserts in its Brief that:

“Appellant is only eligible for the raise; in no way is he entitled to the increase. Management must use its discretion in rewarding meritorious employees. When an employee is so unquestionably undeserving of a pay increase as appellant, there has been no abuse of discretion and ample cause exists for a denial of a merit step increase. It is well established that ‘step increases are not to be considered automatic in nature or a vested right of an employee. Such increases should be merited by performance on the job and should not be granted without a careful analysis of an employee’s service.’ State Personnel Manual, Part 6, Page 6.4 (May 16, 1975).” (Emphasis by the writer of the Brief).

The basis for the Appointing Authority’s assertion was a letter dated December 20, 1977, from Dr. R. R. Gonzalez, Director of Animal Care Department, to Mr. John W. Bradley, Director of the Office of Personnel Services, L.S.U. Medical Center, recommending that Mr. Smith not be granted a merit increase in pay for specific reasons. The reasons were based on the direct observation of the Appellant’s daily work performance by his immediate supervisor. Dr. Gonzalez observed that Mr. Smith’s work performance was unsatisfactory in that he was absent too frequently, he made several costly accounting mistakes, he failed to keep an accurate research animal inventory, he made numerous mistakes causing departmental billing deficiencies, he failed to follow up on purchase orders, and he required constant supervision of his activities because of a lack of interest in carrying out his duties. In recommending that Mr. Smith not be granted the next merit increase in pay, Dr. Gonzales stated:

“On many occasions, I have had discussions with him about these deficiencies and the resulting problems. Each time he has given unacceptable reasons for their occurrences. At the end of each meeting I have attempted to persuade him to show more interest in his duties. My efforts have been to no avail.”
In its opinion the Commission held that:
“A merit step increase in pay is a financial reward for which employees attain an eligibility after a stated period of service — usually one year. Undoubtedly such increases in pay may sometimes be used by some agencies as routine increases to cover rising living costs, but the purpose of this provision of the rules is to provide management with a tool to improve performance. Eligibility for such a pay increase does not vest an employee with a vested right to that increase.” (Emphasis by the Commission).

By its very nature a merit step increase in pay is not automatic; it must be earned by job-performance. An employee has no vested right to a step increase in pay. Such an increase must be merited. No one is in a better position to decide whether or not an employee has merited a step increase than his immediate supervisor. We hold that the denial of a merit step increase in pay is not a disciplinary action on the part of the Appointing Authority, and such a denial is not appealable.

For the foregoing reasons, we affirm the opinion of the Commission at the Appellant’s costs.

AFFIRMED.


author: LANDRY, Judge.

text:
    Kim Dagate HALVERSON, Plaintiff and Appellee, v. Christopher E. HALVERSON, Defendant and Appellant.
    No. 12239.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 20, 1978.

      Barron M. Whipple, Houma, for plaintiff and appellee.
    Keith M. Whipple, Houma, for defendant and appellant.
    Before LANDRY, COVINGTON and PONDER, JJ.
   LANDRY, Judge.

Christopher E. Halverson (Appellant) appeals from judgment declaring that isolated acts of intercourse between himself and his wife (plaintiff herein) did not annul a judicial separation between the parties. We affirm.

The facts are undisputed. On July 28, 1977, plaintiff (Appellee) instituted suit for legal separation from Appellant. Pursuant to a rule taken therein, Appellee was awarded alimony pendente lite in the sum of $460.00 per month. Appellee subsequently obtained a legal separation on September 23,1977. On March 27,1978, Appel-lee obtained judgment making executory unpaid alimony in the sum of $3,450.00. On April 3, 1978, Appellant was adjudged guilty of contempt for having failed to pay the accrued alimony and sentenced to 90 days in the parish jail, which sentence was suspended contingent upon his paying an additional $50.00 per month alimony and paying alimony currently when due. From this judgment Appellant has appealed contending the legal separation was nullified by reconciliation thus terminating Appellant’s obligation to pay alimony.

At the time of the legal separation Appellant lived in Houston, Texas. Appellant testified that subsequent to the legal separation, Appellee voluntarily traveled to Houston and spent a weekend with Appellant, during which interlude the parties had sexual intercourse. On two or three occasions thereafter Appellant spent one or two nights with Appellee in Appellee’s apartment in Houma, Louisiana. Appellant testified that on one of these occasions there was some talk between the parties concerning a possible reconciliation; he concedes, however, that Appellee indicated she would not consider reconciliation until after the final divorce.

Appellee concedes that she visited Appellant in Houston, on which occasion the parties had sexual intercourse. She also acknowledged that Appellant spent one or two nights in her apartment in Houma, on which occasions she and Appellant again had sexual intercourse. Appellee also testified that she never had any intention of reconciling despite her admission that she did tell Appellant she would consider reconciliation only after the final divorce. She stated that she did not dislike Appellant and that the acts of intercourse were “purely physical.” Both parties concede that they have not lived together and that there has been no intimate relationship between them since November, 1977.

Appellant argues that Jacobs v. Tobel-man, 36 La.Ann. 842 (1884) is the only case in which sexual intercourse between legally separated spouses was held to not constitute reconciliation, absent the element of force or violence incident thereto. Appellant also contends that our own court in Stewart v. Stewart, 175 So.2d 692 (La.App. 1st Cir. 1965) is also authority for the rule that one voluntary act of sexual intercourse between spouses nullifies a legal separation.

Our jurisprudence was formerly to the effect that a single act of voluntary sexual intercourse between legally separated spouses voided the separation. Collins v. Collins, 194 La. 446, 193 So. 702 (1940). More recent decisions, however, have evolved the rule that reconciliation in such instances is a matter of mutual intent, to be judicially determined in the light of the totality of circumstances of each particular case and that isolated acts of sexual intercourse between the spouses is not controlling but merely one of the factors to be considered. Millon v. Millon, 352 So.2d 325 (La.App. 4th Cir. 1977); Garrett v. Garrett, 324 So.2d 494 (La.App. 2d Cir. 1975).

Our review of Stewart v. Stewart, above, does not support Appellant’s contention that a single act of voluntary sexual intercourse between spouses per se ends a legal separation between them. Stewart indeed involved a single act of intercourse but in Stewart, we noted:

“We do not agree with the statement in the opinion of the Lower Court in quoting 19 Corpus Juris, p. 87 to the effect “* * * that a single act of sexual intercourse is insufficient to constitute condonation.” The question of condonation is a question of fact to be determined considering all circumstances surrounding the action of the parties involved." (Emphasis by the Court).

The unmistakable holding in Stewart, above, is that a single act of sexual intercourse may constitute reconciliation of spouses. The court then concluded that under the circumstances a reconciliation resulted. Our holding in Stewart, above, does not mandate a finding in favor of Appellant solely because the parties indulged in isolated acts of intercourse in this instance.

Our law regards marriage merely as a civil contract. La.C.C. Article 86. It is elementary that the formation of contracts requires mutuality of consent of the contracting parties. It is equally basic that contracts lawfully entered into may be amended, revised or modified only by the mutual consent of the contracting parties. It follows, in our judgment, that a reconciliation between spouses can only be effected by their mutual agreement to reconcile, accompanied or followed by acts indicative of such intent.

In determining whether a reconciliation between spouses has resulted from their actions and relationship with each other, isolated acts of voluntary sexual intercourse between them is not conclusive of intent to reconcile; it is but one of the factors to be considered in determining mutual consent and agreement to reconcile. We are not called upon herein to judge, nor do we pass judgment on the morality of sexual intercourse between legally separated spouses for the “purely physical” reason of satisfying sexual desires with no intent to resume the marital relationship. We hold merely that isolated instances of sexual intercourse do not per se constitute reconciliation. We hold that such actions are merely part of the totality of circumstances which must be considered in each instance to determine whether the parties mutually intended to resume the marital relationship. No such intent is shown in this instance.

The judgment is affirmed at Appellant’s cost.

Affirmed.


text:
    CONTINENTAL INSURANCE COMPANY, Plaintiff and Appellant, v. Hollis H. SINGLETON and/or Hollis M. Singleton, Sr., Defendant and Appellee.
    No. 12241.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 20, 1978.

      Joseph A. Reilly, Jr., Houma, for plaintiff and appellant.
    Jude T. Fanguy, Houma, for defendant and appellee.
    Before LANDRY, COVINGTON and PONDER, JJ.
   PONDER, Judge.

Plaintiff appeals from a denial of recov- • ery of property damage under a subrogation agreement.

The issue is: Is the contributory negligence of an employee driving a company car not in the course and scope of his employment imputable to the employer so as to bar recovery by the latter’s insurer from a negligent third party. We reverse and render.

We accept the lower court’s finding that the employee and defendant’s son were negligent and that the negligence of both caused the accident.

However, the employee was proceeding in a company car to a softball game after working hours. There was no evidence or finding that the employee was acting for his employer at the time of the accident. The court simply made a statement that if the employee could not recover the employer’s insurer could not recover. We disagree.

Negligence is imputed to an employer by LSA-C.C. Art. 2320, which reads as follows:

“Masters and employers are answerable for the damage occasioned by their servants and overseers, in the exercise of the functions in which they are employed. “Teachers and artisans are answerable for the damage caused by their scholars or apprentices, while under their superintendence.
“In the above cases, responsibility only attaches, when the masters or employers, teachers and artisans, might have prevented the act which caused the damage, and have not done it.”

We conclude that the employee was not in the exercise of the function in which he was employed. There is, therefore, no imputation of negligence to the employer. Defendant does not contend the employer was primarily negligent. Therefore, there is no bar to recovery by the plaintiff from one of two tort feasors.

The judgment dismissing plaintiff’s suit is reversed. There is now judgment in favor of plaintiff and against the defendant in the sum of $325.80 plus interest and costs. The costs of this appeal are cast against the defendant.

REVERSED AND RENDERED.


text:
    Keith L. DUMEZ, Plaintiff and Appellant, v. HOUMA MUNICIPAL FIRE & POLICE CIVIL SERVICE BOARD et al., Defendants and Appellants.
    No. 12254.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 20, 1978.

      Keith M. Whipple, Houma, for plaintiff and appellant.
    Eddie N. Pullaro, John R. Walker, Hou-ma, for defendant and appellant City of Houma.
    Before LANDRY, COVINGTON and PONDER, JJ.
   LANDRY, Judge.

Plaintiff (Appellant) appeals from judgment of the trial court reversing the decision of the Houma Municipal Fire & Police Civil Service Board (Board) which sustained Appellant’s discharge from the permanent classified position of Police Lieutenant, City of Houma, for discourtesy (use of obscene language) toward Appellant’s superior officer. The trial court reversed the Board and remanded the matter to the Board for a new hearing upon finding that the Board’s decision was rendered in bad faith in that the Board considered matters beyond the scope of the charges against Appellant by Appellant’s appointing authority and that the Board prejudged Appellant’s case prior to the Board hearing. We affirm.

Appellant contends the trial court erred in: (1) failing to hold unconstitutional La. R.S. 33:2500, A(5), (authorizing disciplinary action against a classified employee for discourtesy toward a public official or employee), for infringement of Appellant’s constitutional right to free speech pursuant to the First Amendment to the United States Constitution; (2) assuming the statute does not violate the free speech amendment, failing to declare the act invalid for unconstitutional vagueness; (3) failing to hold that mere words do not constitute “conduct” within the meaning of the term as employed in the applicable statute; (4) remanding the matter to the Board despite finding the Board acted in bad faith; and (5) failing to order Appellant reinstated to his position with full pay and all emoluments and benefits.

There is no dispute as to the operative facts. While on duty in the police station, Appellant, having been denied entrance to the office of the Chief of Police, in the presence of his superior officers uttered the epithet “F_Y_ The statement was made while Appellant was standing outside the Chief’s office. Superior officers present understood the remark to be intended for them.

The aforesaid incident prompted Appellant’s dismissal pursuant to La.R.S. 33:2500, A, which provides that a permanent classified employee may be disciplined for, inter alia:

“(5) Conduct of a discourteous or wantonly offensive nature toward the public, any municipal officer or employee; and, any dishonest, disgraceful, or immoral conduct.”

Also pertinent herein is La.R.S. 33:2500, D, which states:

“D. In every case of corrective or disciplinary action taken against a regular employee of the classified service, the appointing authority shall furnish the employee and the board a statement in writing of the action and the complete reasons therefor.”

FREEDOM OF SPEECH

It is well settled that freedom of speech guaranteed by the First Amendment to the United States Constitution is not absolute but subject to reasonable regulation as to time, place and manner of exercise when such regulation is reasonably related to some valid public interest. Cox v. Louisiana, 379 U.S. 536, 85 S.Ct. 453, 13 L.Ed.2d 471 (1965).

Under certain circumstances a public servant may be discharged because of his speech, without violating the First Amendment right to free speech. Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). Pickering establishes certain guidelines by which applicability of the First Amendment is determined in cases of this nature. More particularly, Pickering holds that the interests of a state as an employer allows reasonable restriction upon speech when such limitation promotes efficiency in public service, maintains discipline, increases harmony among co-workers, and promotes loyalty and confidence in positions where such traits are of importance. On the other hand, Pickering holds that the legitimate interests of individuals and the public requires that public employees be not restricted from making public statements on matters of public concern, especially statements having no direct connection with the employee’s employment or duties and not directed at a nominal superior.

The disciplining of a police officer for disrespectful language toward a superior was expressly upheld in Kannisto v. City and County of San Francisco, 541 F.2d 841 (9th Cir. 1976). In essence, Kannisto holds that the states have a substantial public interest to protect in creating and maintaining efficiency in those state organizations which carry out important functions of significant public concern, including police and law enforcement agencies. We readily adopt this policy.

We find that operation of a municipal police department is clothed with sufficient public interest to justify reasonable restraint upon the speech of employees directed toward their superiors and fellow officers in the line of duty. We find subject statute constitutional as applied herein, in that it does not violate the fundamental right of free speech.

STATUTORY VAGUENESS

It is suggested that the terms “discourteous,” “wantonly offensive” and “immoral” are so vague that they set no standards by which a reasonable person may be guided in his actions to avoid running afoul thereof. It is argued that the terms are not specifically defined and therefore can mean different things to different individuals.

The jurisprudence discloses a rule of some liberality in upholding statutes of this nature against a charge of invalidity due to vagueness. In Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974), the court considered an attack of vagueness levelled against the phrase “for such cause as will promote the efficiency of the service.” The quoted phrase established a general standard for dismissal of federal civil service employees. In sustaining validity, the Court concluded that where such prohibitions are couched in terms that an ordinary person exercising ordinary common sense and intelligence can adequately understand and comply therewith without sacrifice to the public interest, the prohibitions will be deemed valid. See also Civil Service Commission v. National Association of Letter Carriers, 413 U.S. 548, 578-579, 93 S.Ct. 2880, 2897, 37 L.Ed.2d 796 (1973).

The crucial question in such cases is that of fairness, namely, whether the prohibition is sufficiently specific to provide fair warning that certain kinds of conduct will result in disciplinary measures. Arnett, supra; Colten v. Commonwealth of Kentucky, 407 U.S. 104, 92 S.Ct. 1953, 32 L.Ed.2d 584 (1972).

Arnett, above, is also authority for the rule that it is neither feasible nor necessary to spell out in detail all conduct which may result in disciplinary action against an offending employee.

We note diLeo v. Greenfield, 541 F.2d 949 (2d Cir. 1976), which involved disciplinary action taken against a school teacher. The court was concerned with the interpretation of a catchall clause authorizing disciplinary action for “other due and sufficient cause.” The court held that such a clause did not invalidate the statute for vagueness. The court, citing United States v. Powell, 423 U.S. 87, 96 S.Ct. 316, 46 L.Ed.2d 228 (1975) and other authorities, held that the test of vagueness for purposes of due process is made in the light of the particular conduct of the person asserting vagueness, not with regard to the conduct of others with respect to hypothetical cases on the fringes of the statute’s scope or with respect to the conduct of other parties who might not be forewarned adequately by the broad language employed. diLeo held that the clause under construction was not so indefinite as to nullify the law. The court also noted that a construction of validity is in order in an area such as the disciplining of teachers where innumerable unforeseen conditions may arise and that it is not reasonable to expect or require the legislature to foresee and provide for every specific eventuality. We believe this same reasoning is peculiarly applicable to a police department.

WORDS DO NOT CONSTITUTE CONDUCT

Webster’s Third New International Dictionary, Unabridged, 1963 Edition, defines conduct, inter alia, as follows:

“1 Conduct ... 3c: a mode or standard of personal behavior esp. as based on moral principles—sometimes distinguished from behavior
2 Conduct . . . 4: to behave or comport (oneself) . . . .”

We deem it elementary that conduct is manifest by speech as well as physical action and movement. Speech as influenced by time, circumstances, and attitude is, in our view, one of the most graphic and expressive forms of conduct. Appellant’s argument is basically that mere words do not constitute conduct. We reject this contention. Carried to its ultimate conclusion, the argument would prohibit disciplinary action against an employee for any instance of verbal insubordination or abuse, which result would totally destroy a superior’s control over subordinates and produce organizational collapse due to the utter inability to maintain discipline in public offices. Such a result is patently intolerable.

REMAND TO THE BOARD

The trial judge remanded the matter to the Board for whatever action the Board deems justifiable after affording Appellant a fair, unbiased and impartial hearing within 60 days of the date of the judgment rendered below.

La.R.S. 33:2500, D, requires that an appointing authority give an employee written notice, including complete reasons for the action taken, when disciplinary action is meted out. Appeals from disciplinary actions are provided for by La.R.S. 33:2501 which states that appeals are confined to the issue of whether the action was taken in good faith and for cause as provided in Section 2500. The purpose of such notice is to fully advise the employee of the basis for the action taken against him, including specific facts upon which each charge is made. Bennett v. Division of Administration, 307 So.2d 118 (La.App. 1st Cir. 1974). We deem it basic that on appeal the Board may not go beyond the specific charges tendered by the appointing authority. Section 2501, above, provides that on appeal the appointing authority and employee each have the opportunity to show whether or not the action taken was in good faith. Said section authorizes the Board to conduct the hearing in any manner it sees fit, without prejudice to any person or party thereto. Obviously, the employee is prejudiced if the Board considers conduct not charged by the appointing authority and which the employee has no reason to believe will be involved on appeal.

The record herein shows that the Board, over Appellant’s objection, considered Appellant’s service record which shows prior instances of disciplinary action against Appellant, including suspension and reprimand. It is conceded the Board considered the service record in the belief it should “look at the whole picture” and that the record of prior disciplinary actions against Appellant influenced the Board members to a considerable degree. There is also evidence to the effect the case had been discussed by Board members prior to the hearing and that the Chairman of the Board told one or more individuals before the hearing that Appellant would be discharged. Under the circumstances, we find the trial court rightly held that Appellant did not have a fair and impartial hearing before the Board. As did the trial judge, we pretermit consideration of the merits of the single charge of insubordination lodged against Appellant. That issue must be first adjudicated by the Board at a fair and impartial hearing.

We find no merit in Appellant’s claim that he should be reinstated with full back pay and all emoluments. Appellant is not entitled to such judgment until and unless the charges brought against him are determined in his favor after a full, fair and impartial Board hearing. Judgment awarding Appellant such relief at this juncture would become an anomaly in the event the Board sustained the charges after a fair and unbiased hearing.

We also find no merit in Appellant’s contention that a remand would be useless in that he cannot possibly receive a fair and impartial Board hearing under the circumstances of this case. We cannot presume that members of a public board, sworn to the principles of justice and fairness, will, after having been shown the error of former action and having been properly instructed by the courts as to their substantive and procedural limitations, fail to do their duty and conduct a fair and unbiased hearing as directed.

The judgment of the trial court is affirmed, Appellant to pay the costs of this appeal. All other costs shall await final outcome of this action.

Affirmed.