author: FORET, Judge.

text:
    Buford LANDRENEAU et al., Plaintiffs-Appellants, v. ST. LANDRY PARISH POLICE JURY, Defendant-Appellee.
    No. 6234.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 20, 1977.

      Taylor & Trosclair, Prank P. Trosclair, Jr., Opelousas, for plaintiffs-appellants.
    Robert Brinkman, Opelousas, for defendant-appellee.
    Before CULPEPPER, GUIDRY and FORET, JJ.
   FORET, Judge.

Our learned brother of the trial court has written a comprehensive and well-reasoned opinion for judgment, and we adopt his reasons, and decree herein, as our own, except for amendment of the decree which appears hereinafter:

“This is a mandamus proceeding to compel the St. Landry Parish Police Jury, in its capacity as governing authority of Fire Protection District # 3 of St. Landry Parish, to comply with R.S. 33:1967 by placing a captain in charge of each piece of firefighting apparatus located at the Lawtell fire station. Fire Protection District # 3 (see R.S. 40:1491 et seq. authorizing the creation of fire protection districts as administrative subdivisions of the state) covers a large portion of the unincorporated area of Ward 1 and portions of Wards 5 and 6 of St. Landry Parish and has two fire houses or stations — the main station located just outside of the City of Opelousas and the substation at Lawtell, an incorporated community about 5 to 7 miles west of Opel-ousas. The three petitioners are employees of said district assigned to the Lawtell station. They are the only personnel assigned to that fire station and none of them have reached the rank of captain. They work in three shifts of 24 hours each. At the Law-tell station are two fire trucks, a rescue unit and other nonvehicular equipment. At the main station, there are two firetrucks, a water tank truck and a rescue unit. This station is maintained by three 5-man shifts each consisting of an assistant chief, one captain, one operator and two firemen.
“Petitioners do not seek any relief relative to the main fire station and it is not clear whether they are contending that a captain assigned to each vehicular fire fighting apparatus be on actual duty at the Lawtell station round the clock or merely subject to call.
“Defendant contends that R.S. 33:1967 is rendered inoperative by the application of the civil service laws and alternatively that, even if said statute is applicable, there is compliance with it by virtue of the fact that a captain continually on duty at the central fire station has supervision over all firefighting equipment in the whole fire protection district.
“R.S. 33:1967 had its origin in a substantially different form in Act 61 of 1920 which applied to municipalities of 10,000 to 100,000. Act 80 of 1920 had substantially the same provisions but with some modifications and applied to municipalities of over 100,000 inhabitants. These two acts contain various provisions relative to organization of municipal fire .departments. They provided that each fire department was to be divided into two forces or platoons — one for night duty and one for day duty. Thus, up to 1950 and including the statutory revision of that year, the relied-upon law mandated a captain in charge of each force, that is, each working shift. This controversy owes its existence to Act 193 of 1950. That law defined the term “force” in R.S. 33:1967 to mean “ . . . any single piece of firefighting equipment.” By the simple definition, the captaincy requirement was changed to pertain to machinery instead of personnel.
“Twice since 1950 (Act 359 of 1956 and Act 134 of 1962), Secs. 1961 (dealing with applicability of the organization subpart) and Sec. 1967 (the captaincy requirement) have been amended and re-enacted. The significance of these amendments will be dealt with later.
“In the meantime civil service came to fire-fighting services. It came to cities over 100,000 population in 1940 (see R.S. 33:2391). It came to municipalities between 13,000 and 250,000 in 1944 (see R.S. 33:2471) and it came to small municipalities (between 7,000 and 13,000 population) and parishes and fire protection districts in 1964 (see R.S. 33:2531).
“In 1942, a minimum wage and hour law was enacted for fire-fighting personnel. These provisions established a ranking or hierarchal scheme consisting of the basic rank of fireman, lieutenant (optional in cases when it did not then exist), captain and assistant chief (also designated as battalion chief or district chief). These rankings have continued with a commensurate pay scale to date (see R.S. 33:1991 et seq.).
“Counsel for defendant argues that Act 61 of 1920 (now R.S. 33:1961 et seq.) was to provide for organization of fire departments but that such organization is now affected by the civil service laws and rules thereunder to such an extent that the latter has displaced or impliedly repealed the old organization statutes including that relied on by plaintiffs herein. Specifically, attention is called to R.S. 33:2537 which authorizes civil service boards in small municipalities and fire protection districts to make rules, R.S. 38:2538 providing that such rules shall have the force and effect of law and 33:2541 providing for a classified service.

“A first reading of the above provisions and others in the applicable civil service law does suggest an incompatibility between the effect of the relied-on statute (33:1967) and the general scheme or purpose of the civil service law. However, closer scrutiny and full reflection reveal that a substantial harmony exists between these provisions. R.S. 33:1967 mandates that a particular task or function (e. g., being in charge of a fire-fighting apparatus) attach to a particular rank or position. The civil service law does not purport to assign tasks or functions to positions or jobs nor does it authorize the board to do so. It must be remembered that the police jury is the governing authority of the fire protection district. The Fire Protection District Civil Service Board carries out the civil service law and does nothing more.

“The governing authority assigns duties or tasks to positions and the board allocates positions to classes. R.S. 33:2543 and 2544 deal with the classification plan and the allocation of positions to classes. The second paragraph of the latter section clearly recognizes that the governing authority — not the board — determines the specific duties applicable to each position subject only to restraints against invidious action by the governing authority.

“R.S. 33:2533 defines various terms: “Position” means any office or employment in a municipal, parish or fire protection district, fire-police service, the duties of which call for services to be rendered by one person. “Allocation” means the official determination of the class to which a position in the classified service belongs. “Class” or “class of position” means a definitely recognized kind of employment in the classified service, designated to embrace positions that are so nearly alike in the essential character of their duties, responsibilities and consequent qualification requirements that they may fairly and equitably be treated alike under like conditions for all personnel purposes. “Classification plan” means all the classes or positions established for the classified service.

“An analysis of the above leads to the conclusion that the civil service board has no authority to assign duties or tasks to positions but only to assign positions to classes so as to achieve equitable treatment within the classes. This is one of the overall purposes of a civil service program. But the determination by a civil service board of what specific jobs or tasks go to which position is not necessary to that overall objective. Consequently, that determination is a function exercisable by the governing authority subject to any specific statutory requirements such as the statute relied upon by petitioners herein.

“Even if the civil service law impliedly authorized the board to assign duties or tasks to positions or jobs it would not avail defendant. It is doubtful that such a general grant of authority would nullify the specific and positive provision of R.S. 33:1967. But more important, any such grant to the board is subject to the limitation that it act in conformity with other laws. R.S. 33:2538, referring to the civil service board provides: “No rule, regulation or order shall be contrary to or in violation of any provision, purpose or intent of this section or contrary to any other provision of law.”

“Defendant relies particularly on a sentence in R.S. 33:2545 (part of the civil service law) which provides: “No employee shall be appointed, employed or paid under any title other than that of the class to which the position held by him is allocated.” R.S. 33:1967 requires that a captain be in charge of a fire truck. R.S. 33:2545 is designed to assure equitable effects of the civil service classification scheme insofar as' appointment, employment and pay are concerned. It has nothing to do with the makeup of a particular position or what duties are assigned to that position except to the extent that such duties tend to characterize the position in a certain class. Hence, there is no incompatibility between R.S. 33:1967 and R.S. 33:2545. Even if in some fire-fighting services the personnel situation may be such as to necessitate a civil service classification plan with a different number of classes than there are ranks provided in the wage statute, that possibility does not affect the outcome in this case. We do not have that situation here. .

“The argument is made that, because civil service was extended to fire protection districts by Act 282 of 1964 which was subsequent to the last re-enactment of R.S. 33:1967 in 1962, the later of the enactments must predominate. The 1964 act did not contain an express repeal of R.S. 33:1967. The previous discussion reveals no implied repeal. Further support for the continued effect of R.S. 33:1967 is recognized in the fact that it was re-enacted subsequent to the adoption of civil service for large and medium-sized municipalities. It would be an unthinkable anomaly if R.S. 33:1967 were applicable to those municipalities but not the small municipalities and fire protection districts solely because of the sequence of enactment of the different legislation.

“It being concluded that R.S. 13:1967 is operative and must have effect in this case, there remains for determination precisely how it shall apply. Defendant argues that because a captain is at all times in charge of the whole fire-fighting operation of the fire protection district, he is necessarily in charge of each fire-fighting apparatus. The statute provides: “Each force in each fire company shall be in charge of a member of the department holding the rank of captain.” To follow the defendant’s argument, it would be necessary that the term “each” be given a group or collective meaning. Its dictionary meaning suggests a separate treatment or individualization of every apparatus. This idea of separateness, as opposed to collectiveness, is not otherwise negated by the quoted language or any other portion of the statute. I must conclude that it requires a separate or different captain as to each separate apparatus.

“However, I do not think the language of that statute requires that the captain be on duty at the Lawtell station to be “in charge” of each apparatus at that place. The Cranford case, supra, held that a requirement for “direction and command” did not require an actual on-duty presence. The rules of the fire protection district provide for one chain of authority for both firehouses and not a separate one for each. No law requires a separate command for each station or firehouse. In fact, R.S. 33:34 permits a breakdown of fire protection districts to include as much as four or' five stations in an administrative unit.

“The quoted statute requires only that the captain in charge be a member of the department and this is as to each force in each fire company. In some instances in the statutes dealing with fire services, the term “company” and “department” are used interchangeably. In many instances the word “department” is used to mean the whole fire-fighting service of a particular governmental entity such as a municipality or fire protection district. In no instances, can I find that the use of those two terms are such as to suggest that a department is less than a company. The opposite is generally suggested by the context in which they are used. Thus, the language of the statute itself suggests that any captain in the fire protection district could be placed in charge of a fire protection apparatus at the Lawtell station even if that station alone is considered a company within the meaning of the statute.

“The phrase “in charge” could possibly pertain to (1) maintenance, housing and miscellaneous attention to the fire-fighting apparatus when not in use, (2) operation or driving of the apparatus from the station to a fire site, (3) use or function of the apparatus at the fire site and (4) direction or command of the personnel which may be attached or assigned to a particular apparatus.

“Except for a driver, the law does not mandate assignment of personnel to any particular apparatus and such requirement cannot be supplied by a court. In the present developmental stage of this fire protection district, there is no such particular assignment of personnel. If in the future such assignment does occur, it will be time then to accommodate the decree to the changed circumstances. Accordingly, any captain “in charge” will not have to be present with the apparatus to supervise any personnel attached to it. .

“The law specifically calls for the apparatus to be operated by an engineer or fire driver. It could hardly be the intention of the statute that the in-charge requirement would call for a captain to be present on the truck solely to chaperone the driving of an otherwise qualified driver.

“Once the apparatus is at a fire site, its use or function must be subjected to the overall strategy for fighting the fire. I cannot interpret the statute to establish each captain in charge of a fire-fighting apparatus as independent of the overall authority in the fire protection district. The minimum wage law ranking, the organization table in the fire protection district’s rules and regulations and the testimony of the Fire Chief Fontenot make it clear that there are officers above that of captain who will probably be in charge at any major structural fire. Thus, the in-charge right or authority of any particular captain over his vehicle must be subordinated to the overall command at the fire. Accordingly, there would be no practical necessity for a captain to be at the fire site to be “in charge” if there is another higher ranking official present at that fire.

“The only other activity coming under the “in-charge” concept would be the station house maintenance, etc. Certainly this would not require any continual on-duty presence of a captain at the Lawtell station house. Those maintenance functions are accomplished intermittently and do not require round-the-clock attention.

“Therefore, I conclude that there would be compliance with the statute even though the captain in charge of a particular vehicle is not on actual duty or even subject to call round the clock, is not stationed at the Lawtell firehouse and is not required to attend fires involving the particular vehicle under his charge except major structural fires at which no higher officer is present.

“Thé decree is to provide that the assignment of captain to the particular vehicles can be rotated on a reasonable basis and that the decree will be suspended during vacation periods, emergencies or sickness of key personnel. . . . ”

We affirm the judgment of the trial court, with one modification: we do not deem it necessary that the trial court decree include the words “except major structural fires at which no higher officer is present”. The varied possible conceptions about what would be a “major structural fire” within the meaning of the decree could only lead to confusion about an otherwise reasonably clear decree. We therefore amend the trial court judgment accordingly, and otherwise affirm it.

Costs of this appeal are assessed against plaintiff s-appellants.

AMENDED AND AFFIRMED.

       The trial court decreed as follows:
      “That the alternative writ of mandamus be made peremptory and that the St. Landry Parish Police Jury, as governing authority of Fire Protection District 3 of said parish, assign a separate and different captain to be in charge of each vehicular fire-fighting apparatus (exclusive of rescue units) located at the Lawtell Substation, provided said captains need not be assigned to duty at the Lawtell Substation, need not be on actual duty around the clock and need not attend fires involving the vehicle under their charge except major structural fires at which no higher officer is present and provided further that the assignment of seperate [sic] and different captains to particular vehicles may be rotated on a reasonable basis, and that this decree will be suspended during vacation periods, or emergencies, or sickness of key personnel.” (Tr., pg. 85)

      . R.S. 33:1967 reads as follows:
      Each force in each fire company shall be in charge of a member of the department holding the rank of captain. By the term force as used herein is meant any single piece of fire fighting apparatus. In any paid fire department operated by a municipality having a population of thirteen thousand or more and in any parish or fire protection district every fire fighting apparatus shall be operated by a member of the department holding the rank of engineer or fire driver, by whichever designation he may be known, provided the term fire fighting apparatus shall not be construed to include standard passenger vehicles, nor any other type of automotive equipment assigned to five department use other than vehicles specially designed for fire fighting purposes. Provided further, that all cities now having engineers or fire drivers operating fire cars or other fire vehicles shall continue this practice.

      . ... I am satisfied from the whole language of provision [LSA-R.S. 33:1967] that it is intended to require a captain for each vehicular fire fighting apparatus only and nothing else. A rescue unit would not be included.

      . See Cranford v. City of Lake Charles, La. App., 92 So.2d 141 (1957) holding that R.S. 33:34 as originally enacted and mandating that every fire district (a geographical or administrative portion of a municipal fire department, parish fire department or fire protection district) be under the direction and command of an assistant chief or district chief did not require such officer to be on active duty round the clock.

      . Both the rules of the police jury for Fire Protection District 3 and the classification plan of the Civil Service Board provide a ranking system roughly equivalent to that mandated by the wage statute. In all three of these systems, the rank or class of captain occupies the same relative position. Prior to 1950, R.S. 33:1967 referred to “a captain”. In the 1950 redefinition, the expression “the rank of captain” was used. The wage statute ranking was in existence when the redefinition was used and it seems that the term “captain” must draw its meaning from the ranking in the wage statute. What might happen in the situation where the civil service classification plan did not contain a classification of captain or contain such a classification not in the same relative position as the captain ranking in the wage statute scheme need not concern us in this controversy. We are not faced with that problem.


source: Caselaw Access Project

author: SAMUEL, Judge. SCHOTT, Judge,

license: Public Domain

text:
    STATE of Louisiana ex rel. William J. GUSTE, Jr., Attorney General v. AUDUBON PARK COMMISSION and the City of New Orleans.
    No. 8499.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 19, 1978.
    Rehearing Denied Jan. 20, 1978.
    Writ Refused March 3, 1978.

      Vernon V. Palmer, New Orleans, for defendants-appellees, Walter Chappel and Vera Bisso.
    Philip S. Brooks and Henry W. Kinney, III, New Orleans, for defendants-appellees, Audubon Park Commission and The City of New Orleans.
    William J. Guste, Jr., Atty. Gen., Warren E. Mouledoux, First Asst. Atty. Gen., Louis M. Jones, Asst. Atty. Gen., Sam L. Levkow-icz, Staff Atty., and Robert E. Redmann, Asst. Atty. Gen., for plaintiffs-appellants, State of Louisiana.
    Before SAMUEL, BOUTALL and SCHOTT, JJ.
   SAMUEL, Judge.

This case was previously before us on appeal from a judgment in which the trial court maintained exceptions of no cause of action and dismissed the suits of the Attorney General and so*me individuals and civic clubs which had intervened on his side. State ex reí Guste v. Audubon Park Commission, La.App., 320 So.2d 291. After our reversal of this judgment the case was tried on the merits and resulted in a judgment in favor of defendants, dismissing the suits of the Attorney General as well as other plaintiffs and the intervenors. From that judgment only the Attorney General has appealed.

In our previous opinion, we said the following concerning the Attorney General’s right to bring this suit:

“As will be seen hereafter defendants rely on Act 191 of 1914 and Act 492 of 1958 for their principal authority to proceed with the project and to support their exceptions of no cause of action to the various petitions filed against them. There is no question but that APC is an agency of the City and not of the state, State Civil Service Commission v. Audubon Park Commission, 99 So.2d 920 (La. App. 4th Cir. 1958), but Audubon Park is owned by the State and not by the City, City of New Orleans v. Board of Commissioners, 148 So.2d 782 (La.App. 4th Cir. 1962), and when the legislature by the passage of the two acts cited above saw fit to place the administration and management of its property, the park, in the City and APC it did so within the limitations and under the conditions specified in those acts. Since the Attorney General’s petition contains allegations that defendants have exceeded and are exceeding their own authority it follows that he does have the right under the constitutional provision cited to bring this action to enjoin the defendants from doing so.”

We held that the Attorney General’s alleged cause of action was that the new expansion project would “change the character and nature of a substantial portion of the park, and change the character and nature of the entire park.” We also held that he could amend his petition to allege that defendants had, in violation of LSA-R.S. 48:512, closed various roads in the park which were public, pursuant to LSA-R.S. 48:491, and that with such an amendment a cause of action would be stated on this issue.

On these two issues the trial court found:

“(b) The Audubon Park Commission may close drives and roadways in the parks, as these roads were created as access routes to the various facilities and exhibits within the park and are maintained and supervised by the Audubon Park Commission under its Managerial Legislative Authority. At all events the City Council by Resolution R-75-143 provided:
‘(9) The traffic in the Park shall be re-routed from Natatorium Drive, Aquar-iu.m Drive and River Drive to other throughfares in the Park according to the Master Plan and Natatorium Drive, Aquarium Drive, and River Drive shall be closed.’
(c) The Audubon Park Commission and the City have not exceeded their authority as general agents in the care of the park. The authority of the Audubon Park Commission is expressly stated in Act 191 of 1914, to wit:
‘Section 2 . That the said Audubon Park Commission shall be, and it hereby is vested with the control and management of the Park in the City of New Orleans, known as the ‘Audubon Park’.’
‘Section 3 . That the duties of the said Audubon Park Commission shall be to take charge and supervision of the said park, and to preserve and improve it for public recreation and use as a place of public resort and pleasure, and such Commission shall have full charge of the control and management, repair, maintenance, development and improvement of the said park.’
The Act is a clear unambiguous expression of authority given by the legislature to the Audubon Park Commission in FULL to develop and improve the Park. Thus, the actions undertaken by the Audubon Park Commission in the Master Plan for improvement of Audubon Park is fully within the Commission’s express legislative authority.
(d) The Audubon Park Commission and the City have not undertaken to change the ‘nature and character’ of the Park . .”

On the issue of the closure of the roads within the park the evidence shows that these roads were never formally dedicated as public roads, so that plaintiffs’ case can stand only on the theory that the roads are public because they have been ‘kept up, maintained or worked for a period of three years by authority of [the] Parish Governing Authority”. R.S. 48:491.

These roads were constructed for the sole purpose of accommodating the movements of vehicles within the park itself. This is still the principal function of the roads even though one may traverse these roads in order to move between points outside the park. The record reflects that the city has provided maintenance for these roads on the basis of specific requests from the Commission. This has occurred on an average of three times per year, over a period of many years. Since the Commission did not have the necessary personnel or equipment to maintain the roads, the maintenance was provided almost exclusively by the City. We do not conclude that these roads became public within the contemplation of R.S. 48:491 under the particular circumstances of this case.

Except for some private donations, only the City of New Orleans had provided funds for Audubon Park until 1970, when the State began to contribute. Since then the City has provided the bulk of the park’s revenues. Thus, the road maintenance provided by the City was merely a supplement to this direct financial assistance and the cost to the public of such maintenance had to be less than if the Commission had undertaken it directly.

As we perceive the intent of R.S. 48:491, if a private road is used by the public and maintained by the parish governing authority over a period of three years it loses its private character and takes on a public character with the result that it cannot be closed unless there is a compliance with R.S. 48:512. Surely the Commission, which established these roads for the purpose of affording movement within the park has the right to change their location, notwithstanding the fact that the City, of which the Audubon Park Commission is an agency, has provided maintenance for the roads in lieu of cash payments with which the Commission might have provided such maintenance.

We next turn our attention to the 'ssue that the zoo expansion project has changed, or will change, the character and nature °f the park.

As previously discussed, the authority of the Commission is to control and manage Audubon Park as a park. The Commission does not have authority to close the park and convert it into something other than a park. A park is not the same as a zoo, and the Commission would surely abuse its authority if it attempted to enclose the entire park with a fence and convert it into a zoo exclusively.

In the instant ease, what has already been accomplished and what has been projected under the Master Plan is considerably less than a complete change in the park, but plaintiffs sought to prove at the trial that the changes would have such an impact on the park as a whole that they would go beyond the Commission’s statutory authority for the “control and management, repair, maintenance, development and improvement of the . . . park” under Act 191 of 1914.

Plaintiffs’ position is that the size of the zoo project and its effect on the middle section of Audubon Park are such that they are beyond the Commission’s authority in that the character and nature of the park the Commission was charged with administering are to be changed under the guise of administering the park. The trial judge concluded the changes were not of such a degree to change the nature and character of the park. Our task is to review that determination.

Audubon Park consists of three sections, the front between St. Charles Avenue and Magazine Street, containing 163 acres, the middle between Magazine Street and a railroad right of way, containing 106 acres and the batture, containing 38 acres. The front section of the park contains an 18 hole golf course occupying 76 acres, 30 acres of lagoons, and 57 acres occupied by a shelter house, roadway network, greenhouse, and open space principally on the periphery of the golf course.

The zoo, located in the middle section of the park before the expansion project, contains 14.7 acres. The swimming pool and tennis courts occupied 14.5 acres. The balance of 76.6 acres is open spaces containing playing fields and picnic areas.

In August, 1971 a comprehensive study of the zoo was presented to the Park Commission by the Bureau of Governmental Research, and extensive improvements were recommended. In October, 1972 a contract was entered into between the City of New Orleans and the architectural firm of Cimi-ni & Meric & Associates, Inc. to provide services in connection with the renovation and expansion of the zoo, and in September, 1973 this Master Plan was approved by the City Planning Commission and shortly thereafter the first contracts were entered into.

The scope of the Master Plan, and what had taken place at the time this suit was filed is as follows: The zoo, as of 1971 consisted of 12.7 acres on the western side of the middle park, known as Merz Memorial Zoo, and an additional two acres which housed the sea lions and reptiles, located across and beyond Natatorium Drive, east of the main part of the zoo.

Phase I of the plan which was underway at the time this suit was filed, and which is now complete, consisted of the construction of a new bird house, relocation of the rides, renovation of the entrance and the fencing. The bird house and the entrance renovation are located within the area of the old zoo on the west side of the middle park. There is no serious issue in this case over this aspect of the zoo renovation.

Similarly, the removal of the rides is not an issue since their removal would be consistent with plaintiff’s position, because more open space would result from their removal.

The question with which we are here concerned is whether or not the plaintiff is entitled to have the fences removed as an incident to his overall prayer for injunction against implementation of the Master Plan beyond the original confines of the zoo.

The fences have the effect of closing the south and most of the eastern part of the middle park section. The playing fields on the northwest corner of the middle park section will be taken up by the zoo and the parking area to serve the zoo.

Appellant contends the expansion of the zoo from 12.7 fenced-in acres to 58 fenced-in acres and additional 11 acres of paved parking will destroy the park as a park. In support of this contention they rely principally on the expert testimony of Dean Gerald J. McLindon of the School of Environmental Design at Louisiana State University. Dean McLindon testified at length concerning the evolution of parks from the private preserves of the aristocracy meant for viewing, through the Industrial Revolution to the present time when they are now responsive to the needs of the people and their activities.

According to this witness prior to the erection of the fence, people were able to move about at will, and their free use of the true pastoral area and open spaces is not curtailed. The admission charge will also limit the use of the area to the public.

He further objected to synthetic materials used to simulate geographically the boulders or hills of the country of origin of the animals as foreign to the environment which now exists, and out of place in relation- to the natural environment.

The dean did point out that parks are continuing to evolve in response to the needs of the people and that progressive growth and change will continue. However, he was of the opinion that the fencing of the middle park area and the admission charge were drastic changes that were undesirable.

The evidence does establish that the Master Plan will substantially expand the zoo from its present size; however, the trial court found:

“That area comprehended in the Master Plan for expansion of the Audubon Park Zoo has been used as a Zoo in greater or lesser degrees, for the past 40 years. The testimony adduced at the trial convinces the Court that the Master Plan simply recaptures for general use as a Zoo, areas which previously were used as a Zoo and temporarily abandoned from such use. As far back as 1933 immediately adjacent to Magazine Street were located animal exhibits. In fact all of the land area between Magazine Street and River Road has from time to time and to some extent been used as a Zoo. The present contemplated use of that same area is for use as a Zoo. This does not change the nature and character of use of that portion of the Park.”

These reasons are supported by the testimony of John Northcutt, a retired employee of the Audubon Park Commission who started to work at the park -in 1933. At that time the zoo was located in the area of mid park near Magazine Street between Exposition Boulevard and Walnut Street. It was relocated in 1938 by the WPA.

Mayor Landrieu remembered visiting the park daily as a child, and recalled the sea lions, reptiles and aquarium were located outside of the perimeter of the present zoo. Likewise Attorney General Guste recalled animal cages located in the area between Magazine Street and the Aquarium.

Thus, the trial court concluded that the fences did not have the effect of changing the nature and character of the park, and the expansion simply recaptured areas of the zoo which had previously been used therefor. A careful review of the record amply supports this conclusion.

For the reasons assigned, the judgment appealed from is affirmed.

AFFIRMED.

SCHOTT, J., dissenting with written reasons.

SCHOTT, Judge,

dissenting.

The trial court found that the entire area now fenced in for future expansion has been used as a zoo for the past 40 years, and as far back as 1933 animal exhibits were located in the vicinity of Magazine Street and the eastern side of the middle of the park. He thus concluded that no change was being made at all with the erection of the fences around the zoo and ultimate implementation of the Master Plan.

Certain considerations militate against this conclusion. In the first place, the only evidence of the zoo’s location other than on the west side of the middle park section is that some isolated exhibits, i. e., cages containing animals or birds were sprinkled east of Natatorium Drive and south of Magazine Street. But the public could walk in and through the area freely and pass around these exhibits without restriction. In other words, this remained an open space for walking, playing, and picnicking. These exhibits had no different effect on this area of the park than did the location of the sea lion pool and the aquarium which were likewise free and accessible at all times.

On the other hand, the Merz Memorial Zoo was built in 1938 and was anintegrated facility from the beginning culminating with a fenced enclosure in the 1950’s. At that time only 12.7 acres were fenced in, but with the implementation of the Master Plan some 58 acres became fenced and another 11 acres where the playing fields were located became or would become paved parking areas. Thus, what was formerly a 12.7 acre fenced in zoo has now become a 58 acre fenced in zoo in addition to a projected 11 acre paved parking lot, so that over 46 acres have been converted from a park to a zoo.

The conclusion of the trial judge seems erroneous in the light of the following statement included in the August, 1973, report of the City Planning Commission concerning the zoo project:

“More specifically, the open spaces remaining in the middle Park Section after zoo expansion are mainly fringe areas on the periphery of the zoo and along Magazine Street and with only some exceptions these remaining areas were comparatively less desirable for general park use than the open space areas absorbed by the expanded zoo. It must, therefore, be con-
cluded that expanding the zoo in this area to the extent proposed by the Master Plan significantly alters the appearance and utilization of this part of Audubon Park.”

This statement demonstrates that the Master Plan not only contemplates a genuine and substantial expansion of the zoo but also changes the character and nature of the middle section of Audubon Park.

It must be understood that this middle section is the only real part of the park available as such since the front section is dominated by the golf course and the bat-ture section was only recently developed into an open cleared area and is now barren and unattractive. Clearly, the erection of the fence coupled with the proposed construction of the new parking lots has in fact changed the character and nature of the middle portion of the park and the park as a whole.

Plaintiff, as the Attorney General, seeks to protect the interests of the State. Audubon Park is owned by the State and Audubon Park Commission was given the authority to maintain Audubon Park as a park, not to convert it in whole or in substantial part to a zoo. In the absence of some specific legislative authority to make such a conversion the Audubon Park Commission may not do so, and plaintiff is entitled to injunctive relief in the premises.

Defendants have contended that this case falls within the purview of our decision in Upper Audubon Association v. Audubon Park Commission, 329 So.2d 209 (La.App. 4th Cir. 1976) where the plaintiffs sought injunctive relief to halt construction of a curio shop in Audubon Park on zoning grounds, but by the time the case was tried the construction had been completed and this court dismissed the appeal by plaintiffs as moot. This case is not controlling. If plaintiffs were attempting to undo the renovation of the entrance buildings and the construction of the bird house it would have application, but the real thrust of plaintiff’s case is to prevent the implementation of the Master Plan. It is true that the peripheral fence surrounding the 58 acres has already been erected and plaintiff is seeking an injunction to remove that fence beyond the boundaries of the zoo as it existed in 1971. The entire fence contract was for $96,000 out of a total of $1,200,000 spent on the four contracts which have been completed. The zoo expansion program as contemplated in the Master Plan would require the expenditure of some $5,000,000. The mere fact that defendants have thrown a fence around the area which they have included in their Master Plan can hardly be sufficient to prevent plaintiff from preventing the implementation of that plan. The loss to the public of that portion of the fencing beyond the 1971 perimeter of the Merz Memorial Zoo is far outweighed by the loss to the public if the Master Plan is implemented in violation of the law of the State.

An issue raised by defendants is the applicability of the doctrine of laches. As a matter of law, the purpose of the doctrine is to prevent an injustice which might result from the enforcement of long neglected rights and to recognize the difficulty of ascertaining the truth as a result of that delay. Barnett v. Develle, 289 So.2d 129 (1974). The party pleading the doctrine must show a prejudicial change of conditions occurring during this delay and reliance upon the inaction of the other party. Melero v. Bass, 322 So.2d 452 (La.App. 4th Cir. 1975).

Construction began on the Master Plan shortly after the Planning Commission approved of it in September, 1973, but the contract for the fences was not made until October 29, 1974, so that this work began sometime thereafter. This is what prompted the residents in the area to become upset and finally, in June, 1975, the City Planning Commission conducted the first public hearing on the project. The Attorney General was not officially informed of the work until April, 1975, and his suit was filed in June, 1975. Under these facts there is no basis to hold that plaintiff’s suit is vulnerable to a defense of laches.

I recognize that the members of the Commission are well meaning, dedicated and public spirited citizens who are motivated to do what seems to be in the best interests of the citizens of New Orleans. However, because Audubon Park is the property of the State and because I perceive the plan to be a radical change in the nature of the park I do not believe that it was within the authority of the Commission to adopt and implement the plan. The legislature may do so, pursuant to Art. IX, § 1, of the Constitution of 1974 if it were so inclined and if its members felt that this was the will of the people who elect them. In effect, my dissent is not predicated on the demerits of the plan for the zoo but rather on the proposition that the plan’s adoption and implementation is beyond the scope of the Commission’s authority.

I respectfully dissent.

      . Such an amendment was filed.


author: JOHNSON, Judge.

text:
    Earl FAYARD and Albert Taft, Plaintiffs-Appellants, v. Henry A. McCALL, Jr., Defendant-Appellee.
    No. 6287.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 6, 1978.

      H. Ward Fontenot, Cameron, for plaintiffs-appellants.
    Russell T. Tritico, John Stewart Hood, Lake Charles, for defendant-appellee.
    Before GUIDRY, FORET and JOHNSON, JJ.
   JOHNSON, Judge.

This appeal is from a judgment of the trial court sustaining an exception of no cause of action and dismissing plaintiffs’ suit at their cost. Plaintiffs, Earl H. Fa-yard and Albert J. Taft, signed an agreement with one Henry A. McCall, Jr., defendant herein, wherein the plaintiffs were given the right to purchase immovable property from McCall.

The facts are not in dispute herein. The two plaintiffs were interested in buying this riverfront property known as Parcel K on Monkey Island. It is located on the west bank of the Calcasieu River in Cameron Parish, Louisiana, near the Gulf of Mexico. Plaintiffs were fishermen and were interested in buying the property so that they could tie up their fishing boats on this riverfront property and live on the property adjacent thereto. The property was owned by a New York Corporation. The plaintiffs, through .their attorney, negotiated with the owners and had progressed to the extent that they sent a deposit on the purchase of the property. The parcel of property consisted of approximately five acres. The price was $29,750.00. The plaintiffs sent to the owners in New York, in February of 1976, a check in the amount of $2975.00 representing ten percent of the purchase price.

In the meantime, defendant McCall was interested in buying some 500 acres of property owned by this same corporation in this same general area. Parcel K, at issue herein, was a portion of the 500 acres that McCall wanted to buy. Thus, McCall and the plaintiffs both wanted to buy Parcel K. McCall and the two plaintiffs had a meeting in the office of the attorney for the plaintiffs on March 11,1976. At that meeting, the evidence shows, it was agreed that since both were desirous of buying the property, the owners of the property were going up on the price all the time. The potential vendees were bidding against each other. In their discussions on March 11, 1976, it developed that McCall was primarily interested in buying that portion of Parcel K that was under lease to Phillips Petroleum Company. This consisted of approximately two acres of the property. The oil company had docks on this property. McCall wanted this portion of the property and the oil company docks. Fayard and Taft were interested in the balance of the property, some three acres more or less. It was agreed at the meeting that Fayard and Taft would request that their deposit money be returned to them from New York. It was further agreed that McCall would be allowed to buy the property from the owners and sell to Fayard and Taft the portion they wanted.

An option or agreement was thereupon drawn up between the parties wherein McCall gave the plaintiffs the option or privilege of buying from him all of the property in Parcel K except that portion under lease to Phillips Petroleum. The agreement delineated with great particularity in a detailed legal description both the total of the property contained in Parcel K, and in a different description, that portion in Parcel K under lease to the Phillips Petroleum Company. The agreement spelled out in detail how the price of the property to be acquired by the plaintiffs was to be calculated. The agreement is in evidence in the record and is designated “P-1” (Tr-18). The option was contingent upon McCall’s acquisition of the property. The plaintiffs deposited $500.00 cash to McCall at the time the agreement was signed.

The anticipated cost of all the property that McCall wished to buy was $185,250.00. Subsequently, it developed that McCall was required, in order to purchase all of the property, to pay the sum of $215,000.00. This represented an increase over what the parties had in mind at the time the option was signed. The option provided that the price of each parcel, in the event of an increase, would be increased pro rata in accordance with the percentage of the increase.

The plaintiffs deposited the $500.00. According to the agreement, if they did not go through with the purchase of the property, they would lose the $500.00 as liquidated damages. The agreement also provided that, if they did exercise their rights under the option, their $500.00 would be applied against the purchase price. The agreement further provided that Fayard and Taft could demand specific performance. It gave them thirty days after the acquisition by McCall in which to exercise their rights under the option.

The deed to McCall of all the parcels of property (including Parcel K) was recorded on August 16, 1976. On September 13, 1976, Fayard and Taft, along with their attorney, went to McCall’s office with a survey by a consulting engineer. This survey showed the whole of Parcel K, including and delineating that portion under lease to Phillips Petroleum. It appears in the record as Exhibit “P-12”. See map attached as addendum 1.

The option agreement provided that the purchasers, Fayard and Taft would pay the cost of the appraisal and of the map. The testimony of Fayard and Taft is that McCall had stated at the time of the agreement that he wanted a Mr. Pease to make the appraisal. They hired Mr. Pease to do so. This is apparently not disputed. Mr. Pease calculated the value of that portion of Parcel K that Fayard and Taft wanted at a value of $16,500.00. Since the $500.00 was to be part of the purchase price, Fa-yard and Taft and their attorney took with them to McCall’s office a check in the amount of $16,000.00 representing the balance of the purchase price. The agreement provided that if the appraisal was not acceptable to either party then a second appraiser would be employed to work with the first appraiser to establish a value. It provided that their joint appraisal would be the purchase price. The cost of the second appraiser was to be borne equally by the purchasers and the seller.

As stated, on September 13th (within the 30 day period), the potential purchasers went to the office of the defendant, McCall, with the amount of the purchase price, the $16,000.00 check. This, with the $500.00 advance deposit represented the appraised price. They tendered the purchase price along with the appraisal and the map.

McCall refused to go through with the agreement. He advised the prospective purchasers that he was not going to honor the agreement unless he was forced to do so. McCall did not express any dissatisfaction with the appraisal. He did not express dissatisfaction with anything that the prospective purchasers had done. He did express dissatisfaction with the results of the survey in that it showed that there was a narrow strip of property which ran behind and to the west of the Phillips Petroleum lease. McCall’s only reply was that he was not going to go through with the agreement unless forced to do so.

The plaintiffs and their attorney left. The following day, September 14, 1976, plaintiff’s attorney wrote a letter to McCall. It notified McCall that the plaintiffs had exercised their option and wished to purchase the property. The trial judge held that the letter written the following day by the attorney, which was not approved or signed by the prospective purchasers, was not an acceptance of the option. The trial judge reasoned that since there was no power of attorney by the plaintiffs to their attorney, and since there was no written authorization by the plaintiffs authorizing the attorney to accept the option on their behalf, that the letter was not a proper acceptance. He cited Paul Voisin Corporation v. Torrey, 271 So.2d 624 (La.App. 4th Cir. 1973). With this we agree.

Some three days before trial of this matter, the defendant filed an exception of no cause of action. The trial judge did not rule on this exception until after the trial on the merits. After hearing the evidence in the case, the trial judge sustained the exception of no cause of action. There is a division of opinion in the Third Circuit Court of Appeal as to whether or not evidence entered without objections may be considered in passing upon an exception of no cause of action. See American Creosote Company v. Springer, 257 La. 116, 241 So.2d 510 (1970); Parks v. Winnfield Life Insurance Company, 336 So.2d 1021 (La.App. 3rd Cir. 1976); and Mire v. Fidelity & Cas. Co. of New York, 338 So.2d 351 (La.App. 3rd Cir. 1976). A situation somewhat similar to the instant ease was presented to the 4th Circuit in Parr v. D. H. Holmes Co., Ltd., 311 So.2d 463. In the cited case, at the close of his case, plaintiff filed an exception of no cause of action. The exception was referred to the merits, and after all of the evidence was in, the trial court sustained the exception. On Appeal, appellants specified as error the action of the trial judge. The appellate court, while recognizing error on the part of the trial judge, resolved the matter as follows:

“While it is true that no evidence may be introduced to support or controvert an exception of no cause of action, it is also true that C.C.P. Article 2164 allows this court to render any judgment which is just upon the face of the record. . . ”

The appellate court then proceeded to consider the matter on its merits (as we are doing) and, reaching the same conclusion as did the trial court, ends its opinion as follows:

“The judgment of the lower- court dismissed plaintiffs’ suit on the exception of no cause of action; we amend this judgment to dismiss plaintiffs’ suit on the merits .

We proceed herein in accordance with the American Creosote case, supra, a Louisiana Supreme Court case, and with the Parr case, supra, a Fourth Circuit case, and in accordance with LSA-C.C.P. article 2164. Also see Smith v. Bickley, 348 So.2d 757 (La.App. 1st Cir. 1977).

As stated, we disagree with the result reached by the trial court. We reverse. We hold that under the circumstances here, and in accordance with the agreement in the record, that the delivery by the plaintiffs of the survey, of the appraisal made by the appraiser, Mr. Pease, and the tender of the purchase price in accordance with the appraisal, constitute a proper acceptance of the option.

Defendant complains herein of the form of the option agreement which admittedly was drawn up by plaintiffs’ attorney. The evidence reveals that the defendant is a businessman with some experience in such matters. Here he purchased some 500 acres of land for $215,000.00. The evidence shows that each of the parties herein had a good and valid reason for wishing tó enter into this agreement. They were each desirous of obtaining a portion of Parcel K. There was no conflict in their desires at that time. They each stood to gain by entering into such a contract.

The contract was negotiated and drawn up in the presence of the parties and under their direction. Fayard and Taft, as a result of the agreement, withdrew their deposit money from the corporation in New York. The evidence shows that they called New York on that date for this purpose. It is not clear whether the company in New York had definitely agreed to accept their deposit. Nevertheless, they, following the agreement with McCall, phoned and had their money returned. McCall wanted only the property under lease to Phillips Petroleum and the docks that went with it. Fa-yard and Taft wanted only the remainder of the property.

The defendant complains because the contract gives Fayard and Taft the right to specific performance and/or the right to withdraw allowing the $500.00 as liquidated damages. It also gives plaintiffs the right to have the $500.00 (in the event of acceptance) as a portion of the purchase price.

This Court knows of no impediment preventing knowledgeable parties contracting as was done here. This contract is not contra bonos mores. The parties had perfectly legitimate purposes in this matter. They each had advantages they were to get from the contract. Our Louisiana Supreme Court, in Lieter Minerals, Inc. v. California Company, 241 La. 915, 132 So.2d 845 (1961) cites the law relative to the freedom of parties to make any contract that is not unlawful or not contra bonos mores. In said case the Supreme Court uses the following language, 132 So.2d on page 853.

“[16,17] Parties to a contract are free to stipulate as they please so long as their stipulations are not contrary to good morals or public policy or do not violate some law. La.Civ.Code Arts. 1764, 1895, 1901: . ” (Citing numerous cases)

Also see, Krison v. Texas Industries, Inc., 253 So.2d 614 (La.App. 2nd Cir. 1971). The agreement in question is clearly not a promise of sale with the giving of earnest money as contended by defendant. See Ducuy v. Falgoust, 228 La. 533, 83 So.2d 118 (1955).

The option agreement is subject to a potestative condition as defined in LSA-C.C. art. 2024:

“The potestative condition is that which makes the execution of the agreement depend on an event which it is in the power of the one or the other of the contracting parties to bring about or to hinder.”

McCall’s fulfillment of the option agreement was dependent on his purchase of the land, which was entirely within his power to do or not do. McCall was not bound by the option agreement to buy the property although he did bind himself to sell part to Fayard and Taft if he bought it. He was thus a conditional obligor. McCall suffered no penalty under the agreement if he failed to buy the tract, the purchase of which was a suspensive condition. Here, in contrast to Bussey v. Wise-Miller, 172 La. 198, 133 So. 433 (1931), McCall was not bound to buy the property or pay damages and there is a simple potestative condition.

LSA-C.C. art. 2034 states:

“Every obligation is null, that has been contracted, on a potestative condition, on the part of him who binds himself.”

However, LSA-C.C. art. 2035 provides:

“The last preceding article is limited to potestative conditions, which make the obligation depend solely on the exercise of the obligor’s will; but if the condition be, that the obligor shall do or not do a certain act, although the doing or not doing of the act depends on the will of the obligor, yet the obligation depending on such condition, is not void.”

Under LSA-C.C. art. 2035, even though the option agreement was subject to a potestative condition, the obligation depending on that condition is not void. See discussion at 47 Tulane Law Review 284. When McCall purchased the tract from Seacoast, the option agreement became a valid and enforceable one. Board of Com’rs, Etc. v. Concordia Abstract & R. Co., 181 La. 373, 159 So. 588 (1935). McCall, upon purchasing the land, elected to be bound by his prior agreement.

Agreements to sell immovable property are governed by LSA-C.C. art. 2462:

“A promise to sell, when there exists a reciprocal consent of both parties as to the thing, the price and terms, and which, if it relates to immovables, is in writing, so far amounts to a sale, as to give either party the right to enforce specific performance of same.
One may purchase the right, or option to accept or reject, within a stipulated time, an offer or promise to sell, after the purchase of such option, for any consideration therein stipulated, such offer, or promise can not be withdrawn before the time agreed upon; and should it be accepted within the time stipulated, the contract or agreement to sell, evidenced by such promise and acceptance, may be specifically enforced by either party.”

We hold that the plaintiffs, by their action in delivering the purchase price, the map, and the appraisal report, have validly accepted, in accordance with law, the option agreement.

Our Appellate Courts in a number of instances have approved different methods of acceptance of options. See

Hammond Asphalt Co., Inc. v. L. B. Ponder, Jr. et al., 303 So.2d 851 (La.App. 1st Cir. 1974);
Book, etc. v. Krushevski, 266 So.2d 496 (La.App. 4th Cir. 1972);
Succession of Jenkins, 91 So.2d 416 (La. 2nd Cir. 1956);
Neblett v. Placid Oil Co., 257 So.2d 167 (La.App. 3rd Cir. 1972);
Choctaw Home Builders, Inc. v. Lena, Inc., 246 So.2d 212 (La.App. 1st Cir. 1971); Richmond v. Krushevski, 243 La. 777, 147 So.2d 212 (1962);
Lambert v. Succession of DeHass, 271 So.2d 910 (La.App. 1st Cir. 1972);
Murphy et al. v. Hussey, 117 La. 390, 41 So. 692 (1906);
Price v. Town of Ruston, 171 La. 985, 132 So. 653 (1931);
Price v. Town of Ruston, 19 La.App. 356, 139 So. 55 (1932).

The defendant argues before the Court, both in brief and orally, that in the event there is a reversal and the plaintiffs are given the right to specific performance, in that event, that defendant’s right to question the acceptance of the first appraisal, as set out in the option agreement, should be reserved to him in any judgment granted herein. We hold that the defendant’s unwarranted and adamant refusal to comply with the agreement, after acceptance by the plaintiffs, constitutes a waiver by him of such rights. Defendant has waived and forfeited any rights in that regard. Reasonable time limits have expired.

Perrin v. Hellback, 296 So.2d 342 (La. App. 3rd Cir. 1974);
Owens v. Robinson, 329 So.2d 766 (La. App. 2nd Cir. 1976);
Chartres Corp. v. Charles Carter & Co., 346 So.2d 796 (La.App. 1st Cir. 1971).

For the foregoing reasons, the judgment of the trial court herein is reversed and the following decree is ordered.

DECREE

IT IS ORDERED, ADJUDGED, AND DECREED that Henry A. McCall, Jr., is to comply with the terms of the March 11, 1976 option and convey by notarial instrument that portion of Parcel K described therein, not under lease to Phillips Petroleum Company, to Earl Fayard and Albert Taft under the terms of the option. This is to be for the sum of $16,500.00 cash, total price. The property is to be conveyed in accordance with the map by Lonnie G. Harper, consulting engineer, in evidence as “P-12” herein. Henry A. McCall, Jr., is to perform herein in accordance with this decree within thirty days from such time as this judgment becomes final.

If the said Henry A. McCall, Jr., does not perform in accordance with this decree within thirty days from the time that the judgment herein becomes final, then the plaintiffs, Earl H. Fayard and Albert J. Taft, are granted an additional period of thirty days, from the period of time allotted to McCall, within which they shall deposit in the registry of the Fourteenth Judicial Court, in and for the Parish of Cameron, to the credit of Henry A. McCall, Jr., the sum of $16,500.00. They are to deliver to the Clerk of said Court for recordation a copy of the map made herein, a certified copy of the option agreement herein, together with a certified copy of this judgment, which deposit, and which recordation in the conveyance records of Cameron Parish, Louisiana, shall constitute a conveyance of the property herein involved in accordance with said option agreement.

All costs of court at trial and on appeal are assessed to defendant, Henry A. McCall, Jr.

REVERSED AND RENDERED. .

Appendix to follow.

APPENDIX

Addendum 1

“This option is contingent upon McCall’s acquisition of the lands the title of which, must be approved by McCall’s attorney.

The price of the sale will be computed as follows:

1. Take the percent of increase which McCall will pay to Hanson Properties for the total lands to be purchased from Hanson (being parcels H, I, J and K as per letter from William Bolger, dated February 18,1976), over the then listing of $185,250.00.

2. Apply the percentage figure to the original list price of Parcel K of $29,750.00 for an increased value of the whole of Parcel K.

3. An independent appraiser will be employed to compute the relative value of the portion of Parcel K sold to Fayard and Taft as it bears upon the whole value of Parcel K as determined in step “2” above.

4. His decision of the value will be the sale price. If the decision of the appraiser is unacceptable to either party, then a second appraiser will be employed to work in conjunction with the first appraiser to establish a value and their joint decision will be final.”

      . See appendix.


author: LEMMON, Judge. LEMMON, Judge, GULOTTA, Judge, SCHOTT, Judge,

text:
    Mrs. Louise Whitfield WILLIS v. Bernel W. WILLIS.
    No. 8464.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 14, 1978.
    Writ Refused March 31, 1978.

      George W. Gill, Jr., New Orleans, for plaintiff-appellee.
    D. Douglas Howard, Jr., New Orleans, for defendant-appellant.
    Before LEMMON, GULOTTA, SCHOTT, BEER and GARSAUD, JJ.
   LEMMON, Judge.

Bernel Willis has appealed from a judgment dismissing his rule to discontinue alimony on the basis that his former wife has sufficient means for her maintenance. The principal issue is the applicability of the “change of circumstances” rule.

In August, 1975 Mr. Willis (represented by other counsel) obtained a judgment of divorce by default, on the grounds of passage of one year and sixty days without reconciliation after the judgment of separation. The judgment also awarded alimony to Mrs. Willis at the rate of $150.00 per month, although the pleadings had not placed C.C. art. 160 alimony at issue. There were no children born of the marriage, and child support was not involved.

Apparently Mr. Willis paid alimony thereafter at that rate. In June, 1976 he filed the rule to discontinue alimony which is at issue on this appeal. At the trial of the rule the parties stipulated that Mr. Willis earned a net monthly income of $814.40 as a school teacher and that Mrs. Willis’ net monthly income as a teacher was $598.15. Each party also prepared and presented a list of monthly expenses. On the basis of this evidence the trial court dismissed the rule.

On appeal Mr. Willis contends that requiring him to pay alimony in effect reduces his net monthly income to $664.40 and increases Mrs. Willis’ to $748.15, or $83.75 higher than his. As to the merits of this contention the three members of the original panel and the five members of this panel agree unanimously that Mrs. Willis has sufficient means for her maintenance and should not be entitled to alimony under C.C. art. 160. However, Mr. Willis’ threshold problem in this appeal is whether the default judgment awarding alimony under C.C. art. 160 precludes inquiry into the question of whether Mrs. Willis has sufficient means for her maintenance, absent a showing of a change in circumstances since the default judgment.

In Bernhardt v. Bernhardt, 283 So.2d 226 (La.1973) the court held that, even if the C.C. art. 160 alimony award had been set by consent (as apparently occurred here in the default judgment of divorce) and even if the award is patently abusive, the judicial admission of the right to alimony in the amount set in the default judgment on the facts and circumstances existing at that time precludes reexamination of the award unless the moving party shows a change in his or his former spouse’s circumstances since the judgment setting alimony.

There are few absolute rules in law, obviously because human behavior is not generally susceptible of being governed by absolute rules. One of the few absolute rules is that a judgment, if valid when rendered by a court of competent jurisdiction and if not timely appealed, may not be modified or changed in substance by a court at any level, because that judgment has acquired the authority of the thing adjudged. C.C. art. 3556(31). This absolute rule applies even if the judgment was patently incorrect on the facts and the law.

A judgment awarding alimony constitutes an exception to the absolute rule of res judicata, because such a judgment is intended only to adjudicate the present right to alimony under existing facts and circumstances. Since the facts supporting an award of alimony are subject to change, the award is likewise subject to adjustment upon showing of a change in the obligee’s needs or the obligor’s ability to pay. However, the showing of such a change is required before alimony, once set judicially, can be reexamined.

Mr. Willis argues that it was not necessary for him to show a change in circumstances, since he was not seeking to change the amount of alimony, as was the husband in the Bernhardt case, but was challenging the wife’s basic entitlement to any alimony at all.

The rationale of the Bernhardt case was that consent to the judgment constituted a judicial admission by the husband of his wife’s freedom from fault and of her necessitous circumstances. Mr. Willis’ consent to the default judgment in this case constituted a judicial admission that his wife did not have sufficient means for her maintenance under the facts then existing. He is not entitled to a reconsideration of the sufficiency of her means until he shows that different facts now exist, and he has made no such showing.

The judgment is affirmed.

AFFIRMED

LEMMON, J., concurs and assigns reasons.

GULOTTA, J., dissents and assigns reasons.

SCHOTT, J., dissents and assigns reasons.

BEER, J., also subscribes to the views expressed in the concurring opinion.

LEMMON, Judge,

concurring.

I vote to affirm only because I cannot distinguish the Bernhardt case. If I could find a way to reach the merits, I would hold that Mrs. Willis was not entitled to C.C. art. 160 alimony at the time of the 1975 default judgment (judging from the 1973 and 1976 income and expenses) or at the time of the judgment now on appeal.

In my view the Bernhardt decision wrongly characterizes consent to an alimony award as a judicial admission.

When estranged spouses agree to an alimony figure without judicial intervention, this agreement should be regarded as a trial setting, entitled to extremely great weight if later questioned, but not entitled to the absolute status of a judicial admission (which is not usually the intention of the parties). Under the Bernhardt case an ov-ersolicitous (or underrepresented) spouse who later determines that he or she was too generous in the agreement, has no practical recourse for a substantial period of time. The net result is to discourage alimony settings by consent and to promote distasteful litigation (and in cases of alimony pendente lite such unnecessary litigation often forecloses any chance of reconciliation).

The preferable procedure, in my opinion, is to allow the trial judge (who exercises vast discretion in this area) the discretion to reconsider alimony awards previously set by consent, if the motion makes out a case for reconsideration. Allowing sparing use of discretion will not open flood gates of litigation, while easing the inflexible rule absolutely prohibiting reconsideration will prevent injustice such as occurred in the present case.

GULOTTA, Judge,

dissenting.

Where the record clearly establishes non-entitlement to alimony, at the time alimony was initially set, as in this case, no necessity exists to show a change of circumstances. To remain wedded to the “change of circumstances” rule in such a case, as do the majority and the concurrence, results in the perpetuation of an inequitable result. Accordingly, I dissent.

SCHOTT, Judge,

dissenting.

In Bernhardt v. Bernhardt, 283 So.2d 226 (La.1973) the issue was, where the divorce judgment contained a consent alimony provision, must the party seeking a modification allege and prove a change in circumstances? Answering affirmatively, the court said:

“Article 160 of the Civil Code authorizes the court, in its discretion, to award alimony after divorce to a wife only when the wife has not been at fault and when she has not sufficient means for her support. If these two conditions are not established, the court does not have the authority to grant alimony after divorce. The award of alimony in this case was contained in the judgment granting respondent a divorce. This evidences the fact that respondent’s freedom from fault and her insufficient means were proven to the satisfaction of the court rendering judgment. Relator’s consent to the payment of alimony is of consequence only to the extent that such consent is tantamount to a judicial admission on his part of his wife’s right to receive alimony, i. e., her freedom from fault and her necessitous circumstances. Having acknowledged judicially his wife’s right to receive alimony, relator will not now be heard to complain that proof of an element requisite to the granting of alimony was not made.”

Thus, in the instant case, the husband’s consent to the judgment awarding his wife alimony at $150 a month was tantamount to a judicial admission on his part of his wife’s right to receive alimony at the time the divorce judgment was obtained in August, 1975. The question before us is whether she had that right under Art. 160 to receive alimony at the time of the judgment appealed from. In order to qualify for alimony under the article the wife must be in circumstances where “she has not sufficient means for her support.” Since this condition did not exist when the judgment appealed from was taken she had no right as a matter of law to collect any alimony under Art. 160.

Mr. Willis’s case is not based on a change of circumstances as in Bernhardt where an attempt was made to reduce alimony, but strikes at her legal right to claim alimony under Art. 160 at the time the rule to discontinue alimony was filed by him. If Mrs. Willis has sufficient means of her support she has no more right to collect alimony under Art. 160 against Mr. Willis than would a perfect stranger.

On this basis I respectfully dissent and would reverse the judgment and order that Mrs. Willis is not entitled to alimony.

      . Alimony pendente lite had been fixed at $150.00 per month in a September, 1972 judgment on a rule ancillary to Mrs. Willis’ suit for separation. The fixing was reaffirmed in the November, 1972 judgment of separation and in August, 1973 and November, 1974 judgments dismissing separate rules to reduce.
      The evidence taken at the hearing on the default judgment is not in this record. However, since Mrs. Willis did not appear, apparently there was no evidence presented as to her needs or her means. The record does contain evidence of the parties’ income and needs in 1973.

      . At the original hearing this court questioned the authority of the trial court to render a default judgment which exceeded the demand of the petition. See C.C.P. art. 1703. In a supplemental brief counsel for Mrs. Willis pointed out that any right Mr. Willis may have had to annul the default judgment was lost through voluntary acquiescence in the judgment under C.C.P. art. 2003.

      . If the judgment were absolutely invalid, as perhaps when a wife consented to a divorce on the condition of payment of alimony, then the judgment may be annulled and cannot form a basis for res judicata.

      . The one-time determination of freedom from fault, of course, may not later be relitigated. However, necessitous circumstances is a continuing requirement for entitlement to alimony, and a determination of necessitous circumstances precludes relitigation only as long as the circumstances existing at the time of the determination continue to exist.

      . An agreement to a consent judgment in a tort case, for example, is not susceptible to a period of trial by the parties. But if a wife of 25 years, recently separated from her husband, has to file for separation in order to obtain support, her “guesstimate” of need in a consent decree in an alimony rule should not be viewed so absolutely.


author: BOUTALL, Judge.

text:
    Gerald SIBILLE d/b/a Sunset Fixture Works v. Oliver J. MEYER, as owner and Oliver J. Meyer d/b/a the Oliver Company, Contractor.
    No. 8516.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 14, 1978.
    Rehearing Denied March 14, 1978.
    Writ Refused May 5, 1978.
    Davidson, Meaux, Onebane, Donohoe, Bernard, Torian & Diaz, John G. Torian, II, Lafayette, for Gerald Sibille d/b/a Sunset Fixture Works, plaintiff-appellant.
    Russell J. Schonekas, Arthur S. Mann, III, Tucker, Schonekas & Garrison, New Orleans, for Oliver J. Meyer, as owner and Oliver J. Meyer, d/b/a the Oliver Co., Contractor, defendants-appellees.
    Before SAMUEL, REDMANN and BOU-TALL, JJ.
   BOUTALL, Judge.

This is a suit on a contract wherein plaintiff, a subcontractor contracted to do carpet and flooring work on a construction job in which defendant was the prime contractor on land owned by himself. There was judgment prior to trial granting “partial summary judgment” for the amount of $32,-433.11 undisputed by both parties and. preserving plaintiffs rights to proceed for an additional $15,385.59. Plaintiff appeals from judgment dismissing this part of his suit for the extra $15,385.59 after a trial on the merits. No written or oral reasons were assigned.

The project Versailles Arms Apartments No. 2, was an FHA project consisting of several apartment buildings, and was to have been finished by April, 1974, with work to be done according to a schedule overseen by the U. S. Dept, of Housing and Urban Development, who were to make monthly inspections. Failure to meet this schedule as per these inspections subjected the contractor to monetary penalties.

Sibille, the subcontractor, fell behind in his scheduled work. Meyer, the contractor, then brought in others to perform some of Sibille’s work. He paid a total of $26,049.02 to two substitutes: Sherwin-Williams for tile work in buildings O, P, and Q; and Southern Interiors for carpet work in buildings E, F, and Z; and buildings M, N, and K.

Sibille’s petition prayed for the sum of $47,818.70 which he alleged represented the “amount due for the various services, labor and materials furnished and pursuant to the terms and provisions of the agreement.” Sibille did not itemize or otherwise explain this amount, but from his testimony at trial he apparently arrives at this figure and the balance he still claims as follows:

Carpet work done under contract $55,112.00
Vinyl work done under contract 10,366.00
Extra padding laid, not invoiced 1,220.40
Extra carpet cost (acknowledged by Meyer) 200.00
Extra work — patching slab (acknowledged by Meyer) 1,300.00
Extra work — replacing carpet damaged by vandals 2,160.00
Lost profit on work performed by Southern Interiors and Sherwin Williams 3,708.60
$74,067.00
Less amount paid to Sibille before suit 26,049.02
$48,017.98
Less amount paid under summary judgment ' 32,433,11
Total prayed for at trial $15,584.87

The difference between this and plaintiff’s figure is unexplained. However, since plaintiff referred to a remainder figure of $15,385.59 in the summary judgment and changed this to a figure of $15,547.27 in his brief, it seems that there may be some error of calculation on his part. The difference we find to be immaterial.

Meyer’s calculations take a different tack. The contract price was $79,742.00, plus $1450 for two extra jobs performed by Sibille which Meyer has acknowledged as above, from which Meyer would subtract the amount he paid to Southern Interiors and Sherwin-Williams. This balance totals $58,482.13, which equals the $26,049.02 paid prior to suit plus the $32,433.11 paid under summary judgment. Thus, by Meyer’s reckoning, no further sums are due to Si-bille.

Plaintiff does not state in his petition whether he seeks relief under the contract or on the basis of quantum meruit. Although his petition sounds in contract, his case at trial, evidence, testimony, and arguments seem to be a claim for quantum meruit. Also, the amount sued is much less than the contract price plus his alleged extras minus what was previously paid to him.

The situation is governed by the provision of Civil Code Art. 2769 from which the following rules were extracted in the case of Airco Refrigeration Service, Inc. v. Fink, 242 La. 73, 134 So.2d 880 (1961):

“[1,2] The contract involved in the instant case is a building contract within the definition of Article 2756 of the LSA-Civil Code. Article 2769 is therefore controlling. Under this codal provision the law is well settled that when the contractor has substantially performed a building contract which he has breached, he is entitled in a suit on the contract to recover the contract price less whatever damages the owner may prove attributable to the breach.

“[3] Substantial performance of the contract is essential to warrant the application of this rule of law. For if the breached contract has not been substantially performed, the contractor may not recover on the contract, but is limited to recovery on quantum meruit.”

It appears from the evidence and testimony that the trial judge concluded that Si-bille did not substantiate the amount of work he claimed to have done. His bare testimony is unsubstantiated by any independent evidence and he offers no supporting witnesses. We note that Sibille admits that he had no individual employees himself, but subcontracted the work to two other concerns, the Karpeteers Co. and Gil’s Carpet Sales. Sibille paid them only as he was invoiced by them for segments of work as finished. These two concerns installed the carpet and vinyl, and Sibille visited the job infrequently. Sibille called no one from these two firms to testify, his was the only testimony offered to the court. The burden of proof is upon him as plaintiff, and he did not carry it. His suit must fail for lack of sufficient proof of substantial performance or quantum meruit.

Plaintiff argues that Meyers acted in breach of contract in substituting others to do his work and cannot deduct the amount paid to these others from the amount due to Sibille. This argument is inapropos to the situation since Sibille does not pray for the full contract price, and has not proven that he performed his obligations under the contract. Plaintiff thus confuses two theories of the case by his attempt to proceed on quantum meruit and also on the contract without a clear election as to one or the other, and without pleading alternatively. Our assessment of the evidence offered shows only that plaintiff has not proven the work performed and that he has employed subcontractors without written consent of the general contractor. The proof that defendant violated the contract is very confusing.

The contractual provisions pertinent to this case are as follows:

“ARTICLE II. The subcontractor agrees to be bound to the Contractor by the terms of the general contract, Surety Bond, general conditions, drawings and specifications for the entire work (which he has examined and read) insofar as they relate in any part or in any way to the work undertaken herein and to assume towards the Contractor, in connection with the work covered by this contract, all of the obligations and responsibilities which the Contractor by those documents assumes towards the Owner or anyone else. The Subcontractor further agrees not to sub-let, assign or transfer this contract or any part thereof without the written consent of the Contractor." (Emphasis added)
* * $ * * *
“ARTICLE VI. The Subcontractor agrees that the work under this contract is to be begun and provided for immediately, and carried on promptly; and the Subcontractor agrees to complete the work covered by this contract in such time and in such manner that the Contractor may complete all of the work included in it (sic) contract with the Owner on or before the first day of_, 19 _It being agreed that the work will be carried on as required by the Contractor, promptly and efficiently, and without delaying the Subcontractor or other branches of work; and if necessary, certain parts of the work shall be prosecuted in preference to others. In order to secure the execution of this work at and within the .time specified, it is hereby distinctly agreed that damages arising from the nonfulfillment of this contract as regards time, shall be deducted from the contract price, as liquidated damages, arising from the contract price, as liquidated damages, on the basis of_per calendar day.
“Should the Subcontractor be delayed in the prosecution or completion of the work by the act, neglect or default of the Owner, the Architect or by damage caused by fire or other casualty for which the Subcontractor is not responsible, or by the combined action of the workman, in no wise caused by, or resulting from default or collusion on the part of the Subcontractor, then the time herein fixed for the completion of the work shall be extended the number of days that said Subcontractor has been thus delayed, but no allowances or extension shall be made unless a claim therefor is presented in writing to the Contractor within forty-eight (48) hours of the occurrence of such delay. No additional compensation in connection with extension of times will be allowed unless specific agreement is made at the time such extension is granted.”
“ARTICLE VII. Should the Subcontractor at any time refuse or neglect to supply a sufficient number of properly skilled workmen, or a sufficient quantity of materials of proper quality, or fail, in any respect, to prosecute the work covered by this contract, with promptness and diligence, such that he has fallen behind the progress of the other crafts on the job, thus causing them to delay, or should he fail in the performance of the agreements herein contained, the Contractor may, at his option, after forty-eight (48) hours written notice to the Subcontractor, provide any such labor and materials and deduct the cost thereof from any money then due or thereafter to become due to the Subcontractor under this contract; or the Contractor may, at his option, terminate the employment of the Subcontractor for the said work and shall have the right to enter upon the premises and take possession, for the purpose of completing the work included under this contract, of all materials, tools and appliances thereon, and may employ any other person or persons to finish the work and provide the materials therefor; and in case of such discontinuance of the employment of said Subcontractor, said Subcontractor shall not be entitled to receive any further payment under this contract until the said work shall be wholly finished; at which time, if the unpaid balance of the amount to be paid under this contract exceeds the expenses incurred by the Contractor in finishing the work, such excess shall be paid by the Contractor to the Subcontractor; if such expenses shall exceed such unpaid balance, then the Subcontractor shall pay the difference to the Contractor. The expenses incurred by the Contractor as herein provided, either for furnishing materials or for finishing the work and any damages incurred by such default, shall be chargeable to and paid by said Subcontractor, and the Contractor shall have a lien upon all materials, tools, and appliances taken possession of as aforesaid, to secure the payment thereof.”

Prom the evidence, it is apparent that in December of 1973 and January of 1974, plaintiff was behind schedule on his work and during this time the substitutions were made. Meyer testified that during this time (HUD) inspections became due, and that no one was on the job for Sibille, who could not be found. He sent two telegrams to Sibille on January 17 and January 31, 1974, invoking Article VII of the contract. The invoices for the substitute subcontractors are dated December 20, 1973, December 21, 1973, January 5, 1974 and March 4, 1974; however, they are not due upon date of invoice but upon completion of job or on receipt. The evidence and testimony on when these jobs were performed is sketchy, and nowhere does plaintiff enlighten us, presumably since he was not around at that time. Some time after February 4, 1974 additional work under the contract was performed by Sibille. From the evidence, we cannot relate these three items, the failure of work by Sibille, the notice of failure, and the substitute work done, within a time frame. The evidence could indicate that the plaintiff had abandoned the job, and that Meyer had executed his second option under Article VII to employ another subcontractor. The evidence indicates an attempt by Meyer to terminate Sibille’s employment by numerous unsuccessful telephone calls followed by the telegrams. Under the second option of Article VII, other persons may be employed and Sibille, the subcontractor, terminated without the 48 hours written notice required by the first option of the Article.

Any work subsequently done by Sibille, in February 1974 or thereafter, may be forbearance on the part of the contractor since Sibille had already been in breach of his obligations under the contract. Under Article II the work schedules and conditions of the general contract are included in the Meyer-Sibille contract by reference. These schedules were not met. Additionally, Si-bille is forbidden to sub-let the contract without written consent from Meyer. It is obvious from Sibille’s testimony that he had sublet the job from the start. The trial judge apparently recognized this in his remarks during the trial, and we cannot say otherwise. Sibille admitted that he had no such written consent from Meyer. The underlying cause of the parties’ present difficulties seems to be the unavailability of the subcontractor, Sibille, or his employees, at crucial times. This is the very situation which this prohibition in Article II was designed to prevent.

Since plaintiff was in breach of the contract and did not complete all the work contracted for, he cannot recover the contractual price, and his claims for quantum meruit must be limited to the contract price less any amount expended by the defendant to finish it. Bouterie v. Carre, La.App.1942, 6 So.2d 218; Keating v. Miller, La.App. 4th Cir. 1976, 339 So.2d 955. Plaintiff has already received by prior payment that to which he is entitled. He cannot recover more.

For these reasons, the judgment is affirmed.

AFFIRMED.