text:
    O. L. HAAS, Sr. v. SOUTHERN FARM BUREAU CASUALTY INS. COMPANY.
    No. 57095.
    Supreme Court of Louisiana.
    Nov. 21, 1975.
   In re: Southern Farm Bureau Casualty Ins. Co. applying for certiorari or writ of review to the Court of Appeal, Fourth Circuit, Parish of St. James. 321 So.2d 380.

Writ refused. On the facts found by the Court of Appeal, the result is correct.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Louisiana v. Kenneth Wayne WHITMORE.
    No. 57100.
    Supreme Court of Louisiana.
    Nov. 21, 1975.
   In re: Kenneth Wayne Whitmore applying for certiorari.

Application denied. There is no error in the trial judge’s denial of the motion to re-cuse.


text:
    STATE of Louisiana ex rel. Ralph PORTER v. STATE of Louisiana et al.
    No. 57102.
    Supreme Court of Louisiana.
    Nov. 21, 1975.
   In re: Ralph Porter applying for writs of mandamus and habeas corpus.

Writ denied. Trial judge advises that record reflects that no writ of habeas corpus has been filed in his court. In any event, relator’s appeal has been lodged in this court and is presently pending.


text:
    A. R. GUGLIELMO, INC. v. Emile M. WEBER et al.
    No. 57108.
    Supreme Court of Louisiana.
    Nov. 21, 1975.
   In re: Emile M. Weber, et al applying for certiorari, or writ of review to the Court of Appeal, First Circuit, Parish of East Baton Rouge. 315 So.2d 427.

Writ denied. Under the facts found, the result is correct.


text:
    STATE of Louisiana v. Erskin D. BELL.
    No. 57112.
    Supreme Court of Louisiana.
    Nov. 21, 1975.
   In re: State of Louisiana applying for writ of certiorari.

Writ denied. The ruling of the trial judge is correct.


text:
    STATE of Louisiana ex rel. Lawrence MATTHEWS v. C. Murray HENDERSON, Warden, Louisiana State Penitentiary.
    No. 57118.
    Supreme Court of Louisiana.
    Nov. 21, 1975.
   In re: Lawrence Matthews, applying for writ of habeas corpus.

Writ denied: The multiple-offender prosecution is not constitutionally infirm. See State ex rel. Jackson v. Henderson, 283 So.2d 210 (La. 1973). The contentions as to change of venue have been previously denied, Docket No. 54,793, May 31, 1974, and repetitious applications are not considered.


text:
    LAKE, INC. v. LOUISIANA POWER AND LIGHT CO.
    No. 57085.
    Supreme Court of Louisiana.
    Nov. 25, 1975.
   In re: Lake, Inc., applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Jefferson. 318 So.2d 911.

It is ordered that the writ of review issue; that the Court of Appeal send up the record in duplicate of the case; and that counsel for plaintiff and defendant be notified.


text:
    STATE of Louisiana ex rel. George SIMMONS v. STATE of Louisiana.
    No. 56686.
    Supreme Court of Louisiana.
    Nov. 25, 1975.
   In re: George Simmons applying for writ of mandamus.

Writ denied. This matter is moot. The district judge advises that he has signed the order of appeal, and set return date on applicant’s appeal for Tan. 19,1976.


text:
    STATE of Louisiana v. Stanley Edward LIVINGSTON.
    No. 57024.
    Supreme Court of Louisiana.
    Nov. 25, 1975.
   In re: Stanley Edward Livingston, applying for writ of mandamus.

Writ denied. The Assistant District Attorney for the First Judicial District having notified the Federal Correctional Institute at Texarkana, Texas to release the de-tainer placed on the accused, the matter is now moot.


text:
    STATE of Louisiana v. Wayne MIMS, Jr.
    No. 57128.
    Supreme Court of Louisiana.
    Nov. 25, 1975.
   In re: Harry F. Connick, District Attorney, Parish of Orleans, applying for writ of certiorari, mandamus and prohibition.

Writ granted. (See Order)

The petition of the relator in the above entitled and numbered case having been duly considered,

It is ordered that a writ of certiorari issue herein, directing the Honorable Charles R. Ward, Judge of the Criminal District, Court for the Parish of Orleans, to transmit to the Supreme Court of Louisiana, on or before the 15th day of December, 1975, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on the 27th day of February, 1976, at 10 o’clock A.M., why the relief prayed for in the petition of the relator should not be granted.


author: DIXON, J.,

text:
    STATE of Louisiana v. Jefferson GRAY, Jr.
    No. 56986.
    Supreme Court of Louisiana.
    Nov. 25, 1975.
   In re: Jefferson Gray, Jr. applying for writ of certiorari and review.

Writ denied. The objection to the ad-missability of the test was not urged until the results of the test were admitted. See La. C.Cr.P. art. 841.

DIXON, J.,

is of the opinion the writ should be granted; it cannot fairly be said that defendant waived the failure to produce the certificate by not objecting timely.

CALOGERO, J., is of the opinion this writ should be granted.


text:
    STATE of Louisiana ex rel. James E. BRADFORD v. C. Murray HENDERSON, Warden, Louisiana State Penitentiary.
    No. 57025.
    Supreme Court of Louisiana.
    Nov. 25, 1975.
   In re: James E. Bradford applying for writ of certiorari and habeas corpus.

Writ refused. The record including the colloquy, refutes the allegations. There is no merit in the application.


text:
    STATE of Louisiana ex rel. Michael THOMAS v. 13TH JUDICIAL DISTRICT COURT, PARISH OF EVANGELINE, VILLE PLATTE, Louisiana.
    No. 57050.
    Supreme Court of Louisiana.
    Nov. 25, 1975.
   In re: Michael Thomas applying for writ of mandamus and habeas corpus.

Writ denied. The application is moot. This Court is advised that applicant was released from the penitentiary on Nov. 9, 1975.


text:
    STATE of Louisiana ex rel. Richard A. THORSON v. C. Murray HENDERSON, Warden, Louisiana State Penitentiary.
    No. 57077.
    Supreme Court of Louisiana.
    Nov. 25, 1975.
   In re: Richard A. Thorson applying for writ of habeas corpus.

Writ denied. On the showing made, there is no merit in application.


text:
    Bessie A. BYRD v. HIGHLANDS INSURANCE COMPANY.
    No. 57091.
    Supreme Court of Louisiana.
    Nov. 25, 1975.
   In re: Bessie A. Byrd applying for certiorari or writ of review to the Court of Appeal, Fourth Circuit, Parish of Orleans. 319 So.2d 498.

Writ denied. On the facts found by the Court of Appeal there is no error in the judgment complained of.

DIXON, J., is of the opinion that the court below was in error in the question of penalties and attorney fees.

CALOGERO, J., dissents from the denial.


author: TATE, J.,

text:
    Edward J. CHAROULEAU v. CHARITY HOSPITAL OF LOUISIANA AT NEW ORLEANS et al.
    No. 57097.
    Supreme Court of Louisiana.
    Nov. 25, 1975.
   In re: Edward J. Charouleau, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans. 319 So.2d 464.

Writ denied. On the facts found by the Court of Appeal, the result is correct.

TATE, J.,

I respectfully dissent. Charity Hospital is not excluded from the medical institutions subject to regulations for safe and adequate treatment of patients in hospitals under La.R.S. 40:1201 et seq., see 2102, subd. A and 2109. Further, it was error to deprive the plaintiff of the expert testimony of the out-of-state physician.

DIXON, J., dissents from the denial.

CALOGERO, J., dissents.


text:
    STATE of Louisiana v. Paul JOHNSON.
    No. 57101.
    Supreme Court of Louisiana.
    Nov. 25, 1975.
   In re: Paul Johnson applying for writ of mandamus.

Writ denied. The application is moot. By letter of November 21, 1975 to the Director, Huntsville Unit, Texas Department of Corrections an assistant district attorney for the First Judicial District Parish of Caddo has released the Louisiana detainer against applicant.


text:
    STATE of Louisiana v. Lawrence PARFAIT and Anthony Parfait.
    No. 57103.
    Supreme Court of Louisiana.
    Nov. 25, 1975.
   In re: Lawrence and Anthony Parfait applying for certiorari, prohibition and mandamus.

Writ denied. The showing made does not warrant the exercise of this Court’s supervisory jurisdiction.


text:
    STATE of Louisiana v. Johnnie Marie BROWN and Delores Ann Vincent.
    No. 57109.
    Supreme Court of Louisiana.
    Nov. 25, 1975.
   In re: Johnnie Marie Brown and Delores Ann Vincent applying for writ review.

Application denied. There is no error of law in the judgment of the district court.


text:
    STATE of Louisiana ex rel. Adam Joseph LEONARD v. C. Murray HENDERSON, Warden, Louisiana State Penitentiary and Edward A. Delahoussaye, Judge, 16th Judicial District Court.
    No. 57119.
    Supreme Court of Louisiana.
    Nov. 25, 1975.
   In re: Adam Joseph Leonard applying for writ of mandamus and habeas corpus.

Writ denied. The matter is moot. Trial judge denied relator’s application on October 31, 1975.


author: DIXON, J., and CALOGERO, J.,

text:
    STATE of Louisiana ex rel. Peter SCHWANDER v. C. Murray HENDERSON, Warden, Louisiana State Penitentiary.
    No. 57121.
    Supreme Court of Louisiana.
    Nov. 25, 1975.
   In re: Peter Schwander applying for writ of habeas corpus.

Writ denied. No prejudice is shown which would warrant evidentiary hearing.

DIXON, J., and CALOGERO, J.,

dissent from the refusal. Applicant is entitled to an evidentiary hearing. C.Cr.P. 354.


text:
    John F. SHORT v. The STATE POLICE RETIREMENT BOARD et al.
    No. 57129.
    Supreme Court of Louisiana.
    Nov. 25, 1975.
   In re: John F. Short applying for remedial writs and writ of certiorari or review.

Writ denied. The result is correct.


text:
    STATE of Louisiana ex rel. Warren SMITH v. C. Murray HENDERSON, Warden, Louisiana State Penitentiary.
    No. 57134.
    Supreme Court of Louisiana.
    Nov. 25, 1975.
   In re: Warren Smith applying for writ of habeas corpus, or in the alternative, writ of certiorari, prohibition, mandamus.

Application denied. The second assignment of error was treated on appeal. There is no merit in the first.


text:
    STATE of Louisiana v. Bert C. LeBLANC.
    No. 57149.
    Supreme Court of Louisiana.
    Dec. 1, 1975.
   In re: Bert C. LeBlanc applying for writs of certiorari, prohibition, mandamus and stay order.

Writ denied. There is no palpable error in the ruling of the trial judge. This court will not interfere with the orderly proceedings in the trial court. Applicant may urge this contention in this court on appeal in the event of conviction.


text:
    Gilbert SANCHEZ v. Elayn HUNT, Director Department of Corrections.
    No. 57104.
    Supreme Court of Louisiana.
    Dec. 2, 1975.
   In re: William J. Guste, Jr., Attorney General, applying for writs of certiorari, mandamus and prohibition.

Granted. (See Order)

The petition of the relator in the above entitled and numbered case having been duly considered,

It is ordered that a writ of certiorari issue herein, directing the Honorable John S. Covington, Judge of the 19th Judicial District, Court for the Parish of East Baton Rouge, to transmit to the Supreme Court of Louisiana, on or before the 19th day of December, 1975, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on the 27th day of February, 1976, at 10 o’clock A.M., why the relief prayed for in the petition of the relator should not be granted.


text:
    CITY OF NEW ORLEANS v. Glendora HOLLIS.
    No. 57132.
    Supreme Court of Louisiana.
    Dec. 2, 1975.
   In re: Glendora Hollis, applying for writs of certiorari, mandamus and stay order.

Granted. (See Order)

The petition of the relator in the above entitled and numbered case having been duly considered,

It is ordered that a writ of certiorari issue herein, directing the Honorable Rudolph Becker, III Judge of the Criminal District, Court for the Parish of Orleans, to transmit to the Supreme Court of Louisiana, on or before the 19th day of December, 1975, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on the 27th day of February, 1976, at 10 o’clock A.M., why the relief prayed for in the petition of the relator should not be granted.


text:
    ECONOMY CARPETS MANUFACTURERS AND DISTRIBUTORS, INC. v. BETTER BUSINESS BUREAU OF BATON ROUGE, INC.
    No. 57146.
    Supreme Court of Louisiana.
    Dec. 2, 1975.
   In re: Economy Carpets Manufacturers and Distributors, Inc. applying for writs of certiorari, prohibition and mandamus.

Granted. (See Order).

The petition of the relator in the above entitled and numbered case having been duly considered,

It is ordered that a writ of certiorari issue herein, directing the Honorable Melvin Shortess Judge of the Nineteenth Judicial District, Court for the Parish of East Baton Rouge, to transmit to the Supreme Court of Louisiana, on or before the 19th day of December, 1975, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on the 23rd day of February, 1976, at 10 o’clock A.M., why the relief prayed for in the petition of the relator should not be granted.


text:
    STATE of Louisiana ex rel. Jimmie L. BARNETT v. Hon. C. J. BOLIN, Jr., District Judge Parish of Caddo.
    No. 57115.
    Supreme Court of Louisiana.
    Dec. 2, 1975.
   In re: Jimmie L. Barnett, applying for writ of mandamus.

Writ denied. The matter is now moot. The Assistant District Attorney 'has, by letter, released the detainer against relator.


text:
    STATE of Louisiana ex rel. Ulyessus BAZILE v. C. Murray HENDERSON, Warden, Louisiana State Penitentiary, et al.
    No. 57120.
    Supreme Court of Louisiana.
    Dec. 2, 1975.
   In re: Ulyessus Bazile applying for writ of certiorari and habeas corpus.

Writ denied. All but one of applicant’s complaints were found non-meritorious by this court on appeal. See State v. Scott & Bazile, 307 So.2d 291 (La.1975). The contention that trial counsel was incompetent or ineffective we conclude does not warrant the exercise of our supervisory jurisdiction in light of our earlier appellate review.


text:
    STATE of Louisiana ex rel. Welton BROWN v. C. Murray HENDERSON, Warden, Louisiana State Penitentiary.
    No. 57123.
    Supreme Court of Louisiana.
    Dec. 2, 1975.
   In re: Welton Brown applying for writ of certiorari.

Writ refused. No error in ruling of trial judge based on the evidentiary hearing.


author: CALOGERO, J.,

text:
    STATE of Louisiana v. William R. BRUMLEY.
    No. 57125.
    Supreme Court of Louisiana.
    Dec. 2, 1975.
   In re: William R. Brumley, applying for writs of certiorari.

Writ denied. There is no error of law. See State v. Holmes, 263 La. 685, 269 So. 2d 207 and State v. Flood, 263 La. 700, 269 So.2d 212.

CALOGERO, J.,

concurs. While disagreeing with this Court’s decisions in State v. Holmes, State v. Flood and State v. Rhymes, 284 So.2d 923, I am constrained to follow these majority decisions of this Court.


text:
    STATE of Louisiana v. William M. MULLER.
    No. 57137.
    Supreme Court of Louisiana.
    Dec. 2, 1975.
   In re: William M. Muller applying for writs of certiorari, prohibition and stay order.

Writ denied. We do not find that the assignments of error have merit.


text:
    Augusta SUTTON v. Jeannette Laphand Sutton, wife of Augusta SUTTON.
    No. 57138.
    Supreme Court of Louisiana.
    Dec. 2, 1975.
   In re: Augusta Sutton applying for cer-tiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans.

The application is denied. The result is correct, and on the assignments of error 'there is no error of law in the Court of Appeal judgment.


text:
    STATE of Louisiana ex rel. Lamont Kieth JOHNSON v. C. Murray HENDERSON, Warden Louisiana State Penitentiary.
    No. 57139.
    Supreme Court of Louisiana.
    Dec. 2, 1975.
   In re: Lamont Kieth Johnson, applying for writ of certiorari.

Writ refused. The allegations are refuted by the colloquy in open court at time guilty plea was entered.


text:
    GOLDEN LANE MARINE, INC. v. BOBBEN FABRICATORS, INC., and Summit Insurance Co., of New York.
    No. 57143.
    Supreme Court of Louisiana.
    Dec. 2, 1975.
   In re: Bobben Fabricators, Inc., applying for writ of certiorari or review.

Application denied. This is the same application as No. 57,039, which we did not consider as not timely filed, and is an effort to circumvent our rules and avoid the effect of the late filing.


text:
    STATE of Louisiana v. Michael CURRY.
    No. 57127.
    Supreme Court of Louisiana.
    Dec. 2, 1975.
   In re: Michael Curry applying for remedial writs.

Application denied. The showing made does not warrant the exercise of our jurisdiction. Since applicant was not sentenced to imprisonment for more than 6 months, there is no appellate jurisdiction in this court. We have considered this as an application for writs under our Rule 1, Sec. 10.


text:
    STATE of Louisiana v. Charles FISHER.
    No. 57169.
    Supreme Court of Louisiana.
    Dec. 4, 1975.
   In re: Harry F. Connick, District Attorney, Parish of Orleans applying for writs of certiorari, mandamus & prohibition and stay order.

Stay order recalled and set aside. Writ denied. This court will not interfere with the orderly process of trial procedure absent palpable error.


text:
    Rosalie TERRY et al. v. Patricia FERNANDEZ et al.
    No. 57147.
    Supreme Court of Louisiana.
    Dec. 5, 1975.
   In re: Patricia Fernandez, Fausto Fernandez and Gov. Employees Ins. Co. applying for remedial writs.

Writ granted. Jury trial ordered. See Hill (Barberito) v. Green, La., 275 So.2d 407.

SUMMERS, J., dissents from this ex parte order, in chambers order, reversing the trial judge.


text:
    STATE of Louisiana City of Ruston v. Steve SHAVER.
    No. 57088.
    Supreme Court of Louisiana.
    Dec. 5, 1975.
   In re: Steve Shaver, applying for writs of certiorari, prohibition and mandamus.

Writ refused. No error in ruling.


text:
    STATE of Louisiana ex rel. Henry SIBLEY v. CRIMINAL DISTRICT COURT, PARISH OF ORLEANS, and C. Murray Henderson, Warden, Louisiana State Penitentiary.
    No. 57165.
    Supreme Court of Louisiana.
    Dec. 5, 1975.
   In re: Henry Sibley applying for writ of certiorari, prohibition, mandamus and habeas corpus.

Application denied. Petitioner, who pleaded guilty and was sentenced, cannot now complain of lack of speedy trial when he never applied for speedy trial in jurisdiction where charge was pending.


text:
    STATE of Louisiana v. Dianne T. SMITH.
    No. 57126.
    Supreme Court of Louisiana.
    Dec. 8, 1975.
   In re: Dianne T. Smith applying for writs of certiorari, prohibition, mandamus and stay order.

Writ denied. The relator is not entitled to the relief sought. See State v. Campbell, La., 319 So.2d 446 and related cases decided this date.


author: PICKETT, Judge:

text:
    Joseph SNOWDEN and Harry A. Johnson dba Snowden & Johnson Plumbing Co., Plaintiffs-Appellants, v. Richard PATTERSON and Charles Hawkins, Defendants-Appellees.
    No. 10480.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 24, 1975.
    Walton J. Barnes, Baton Rouge, for plaintiffs-appellants.
    L. D. Sledge, Baton Rouge, for defendants-appellees.
    Before SARTAIN, BAILES and PICKETT, JJ.
   PICKETT, Judge:

Plaintiffs-Appellants are plumbing contractors. In January of 1973, plaintiff, Harry A. Johnson, entered into a plumbing subcontract with defendant, Charles Hawkins, a general contractor, in connection with the construction of a self-service laundry facility for Richard Patterson (owner) in Iberville Parish.

Mr. Johnson performed most but not all of the work called for under the subcontract. Alleging substantial performance or, alternatively, that he was prevented by the defendant general contractor from completing the work, plaintiff filed this suit for the balance due under the subcontract, or for relief in the alternative on a quantum meruit or unjust enrichment basis, and for recognition of this lien against the owner’s property, under LSA-R.S. 9:4812.

The defendants filed a reconventional demand for damages, alleging that plaintiff simply would not return to the job site to finish his work, despite their attempts to contact him, so that they were required to engage another plumber and this caused delays in the completion of the job. After a trial on the merits, the lower court, without assigning reasons therefor, awarded judgment in favor of plaintiff in the principal sum of $365.00 but the judgment was silent with respect to the lien against the owner’s property. The latter claim was specifically raised in plaintiff’s motion for a new trial but was rejected by the court.

The original plumbing subcontract was for the amount of $2,430.00. The parties contemplated at the time that the plaintiff would provide a hot water heater and that electric clothes dryers would be used. The payments were to be made in three installments of $810.00 each, following (1) the “roughing in”, (2) the “stubbing out,” and (3) the completion of all work under the subcontract. The parties thereafter learned that Mr. Patterson, the owner, would provide the hot water heater and that gas clothes dryers, requiring additional plumbing work, would be used. Plaintiff prepared an estimate for installation of such gas lines, and an additional lavatory, in the total amount of $205.00. Although the defendant contractor denied having seen or approved this addition, he admitted that this work was done by plaintiff and was not included in the original agreement.

The first payment of $810.00 was made as agreed. On March 20, 1973, after plaintiff had completed the second stage of the work, the defendant was able to pay only $400.00 of the $810.00 due under the original agreement. We note that plaintiff at this time had also installed the pipe required for the gas clothes dryers and the additional lavatory.

The testimony with respect to the events that followed is in conflict. The plaintiff claimed that he was unable to proceed because some flooring had to be installed first; he therefore attended to other jobs while waiting to hear from the defendants. The defendant claimed that there was no such obstacle and that he tried to telephone plaintiff to determine when the latter would return to finish the job.

The trial judge was apparently unable to resolve the conflict in favor of either party, and we cannot find that the evidence in the record preponderates in favor of either. In any event, the defendants did in fact engage another plumber for $300.00 to finish the job. It was discovered that some of the plaintiff’s installation had to be redone, at an extra cost to the contractor of $60.00. And, finally, the testimony of Mr. James D. Ziegler, a plumbing contractor recognized by the court as an expert, showed that the cost of a hot water heater, had plaintiff been required to provide one, would have been approximately $250.00.

As we noted above, the trial court did not indicate how he arrived at the $365.00 award. A plausible explanation would be that plaintiff was entitled to the $410.00 due on the second installment, plus $205.00 for the gas lines and lavatory, less the estimated $250.00 cost of a hot water heater, which the owner in fact supplied.

In our opinion, the deletion of the cost of the hot water heater would have been properly considered in determining the amount of the final payment at the completion of the subcontract. It was not a factor in the work required for the first two progress payments nor in the extra work on the gas lines and lavatory. We do find, however, that the additional $60.00 cost to the contractor for correcting some of plaintiff’s work should be considered. The judgment will therefore be amended to reflect plaintiff’s entitlement to $410.00 due on the second installment, plus $205.00 for the gas lines and lavatory, less $60.00 for the corrective work, or a total of $555.-00.

Finally, the evidence shows that plaintiff had performed work and supplied materials up until March 20, 1973, when the partial payment of $400.00 was made, and his lien affadavit was filed on May 4, 1973, or within the sixty day period provided by La.R.S. 9:4812. The other procedural requirements for preserving the lien were met and the lien should have been recognized.

Accordingly, for the above and foregoing reasons, the judgment appealed from is amended to increase the award in favor of plaintiff to the principal sum of Five Hundred Fifty-five ($555.00) Dollars and to recognize plaintiff’s lien on the following described property:

A certain lot of land and house or cabin, lying and situated in the Parish of Iber-ville, on the left bank of the Mississippi River in the Fourth Ward in Jakeville; said lot is bounded as follows: in the back by Estate of Mrs. Armentine Miller, South or towards the river by Estate of Barta Johnson, North by lot of Jack Walker, Sr., and said lot contains half an acre.

In all other respects, the judgment of the trial court is affirmed, at defendants-appel-lees’ costs.

Amended and affirmed.


author: JULIAN E. BAILES, Judge Pro Tem.

text:
    STATE of Louisiana, Through the DEPARTMENT OF HIGHWAYS v. DUGAS AND LeBLANC, LTD., et al.
    No. 10502.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 24, 1975.

      D. Ross Banister, Gen. Counsel, Charles E. Pilcher, Johnie E. Branch, Jr., Asst. Gen. Counsel, Edwin R. Woodman, Jr., Jerry F. Davis; Baton Rouge, for appellant.
    Aubert D. Talbot and Donald T. Car-muoche, Napoleonville, for appellees.
    Before SARTAIN, J., and BAILES and PICKETT, JJ. Pro Tem.
   JULIAN E. BAILES, Judge Pro Tem.

This expropriation case concerns the taking of two parcels of land located in Assumption Parish, Louisiana in full ownership, the acquisition of a permanent servitude of drainage and a temporary construction servitude, all necessary for the completion of certain highway widenings or “flare-outs” for a new bridge across Bayou Lafourche near Paincourtville, which will connect the Paincourtville-Sun-shine Bridge Highway with Louisiana Highway 1.

At the location of the defendant’s property, Louisiana Highway 1 runs generally in an east-west direction and is paralleled on the north by Bayou Lafourche. Prior to the taking, the defendant owned 251.244 acres south of Louisiana Highway 1 which was entirely a sugar plantation. It also owned 6.180 acres to the north of that highway and fronting on Bayou La-fourche.

Involved in this taking under the provisions of LSA-R.S. 48:441 et seq., usually referred to as the “quick-taking” statute, were 3.332 acres south of Louisiana Highway 1 and, 2.912 acres paralleling that acquisition, which were also required for a three year temporary servitude to facilitate the construction of the project. Between the highway and Bayou Lafourche, 1.609 acres were required in full ownership and .091 acres were taken for a permanent drainage servitude which the parties agreed would amount to a complete taking. The acquisition north of Louisiana Highway 1 effectively split the defendant’s holdings at that location and created three remainders fronting on the Bayou of 1.53 acres, 2.95 acres, and one small strip measuring approximately 24 feet in width by 135 feet in length.

On October 28, 1971, the condemnor filed its petition for the takings previously described and deposited, as just compensation, the sum of $17,763.00 which was subsequently withdrawn by the defendant. Thereafter, the property owner sought increases through litigation and the case was duly tried. As a result thereof, the district court, in detailed written reasons for judgment, awarded $45,288.00 for the full ownership takings on both sides of the highway, $6,290.00 for the temporary construction servitude, severance damages in the amount of $4,108.00 and stipulated crop damages amounting to $178.19, all totaling $55,864.19. From that judgment, the Department of Highways has appealed. We affirm.

Four expert appraisers were called by the parties during the course of the trial. The district judge concluded that the testimony of one of the defendant’s appraisers, Mr. Kermit A. Williams, most accurately reflected the loss experienced by the landowners. That decision was within the prerogative of that court and there is ample evidence in the record to support such a determination. Absent manifest error, the findings of the trial judge will not be distrubed. State, Department of Highways v. McPherson, 261 La. 116, 259 So.2d 33 (1972). We find no such error here.

Mr. Williams related that the highest and best use of all of that taken on both sides of the highway was for commercial and/or residential use and found its value to be $9,000.00 per acre. He also concluded that the remainder north of the highway had been damaged 15 per cent by the taking and that 13.713 acres south of the highway had been damaged to the extent of 10 per cent. That testimony was corroborated by Mr. Curtis Book, another appraiser offered by the defendant, whose values, and percentages pertaining to severance damages, varied only slightly from those of Williams.

Testifying for the State as appraisers were Messrs. Chester A. Driggers and Dan Carlock. They found that a marked difference existed between the value of the land on the north side of the highway and that on the south side due to a different highest and best use. Driggers found that property on the north side to be worth $7,850.00 per acre and Carlock placed value at 17 cents per square foot, that area having a highest and best use of residential or commercial. However, on the south side of the highway, they found the highest and best use to be agricultural only and that a proper valuation should be $800.00 per acre. They found no severance damages, with the exception of the 24 foot strip cut off by the drainage servitude which Mr. Carlock found had been damaged to the extent of 90 per cent.

Relying on the testimony of Williams, the trial court determined that the property taken on either side of the highway should be valued at $9,000.00 per acre. As noted in its written reasons for judgment, property fronting on Bayou Lafourche is typically in considerable demand for residential purposes and a number of comparable sales of like parcels sold for per acre prices exceeding $9,000.00. As for the property lying to the south of Louisiana Highway 1, the trial judge found that although the entire area had been a sugar plantation, that on the authority of this court’s decision in State, Department of Highways v. Mayer, 257 So.2d 723 (La.App. 1st Cir. 1971), the “front land-rear land” concept should be applied to the acreage taken. That concept recognizes that different classes of land may exist within a tract and that, where a front portion may be of greater value than the remainder of the tract to the rear, the frontage must be awarded the greater value rather than the average per acre value of the whole tract. State through Department of Highways v. Hoyt, 284 So.2d 763 (La.1973).

In Hoyt, our Supreme Court approved that appraisal method as follows:

“The landowner is thus to be awarded the actual market value of the particular portion of the property taken, valued according to its highest and best use. He is not limited to its average per-acre value as a pro rata portion of the parent tract where the front portion has a different and higher best-use value.

(Citations of authority omitted)

“As the cited decisions show, where the evidence shows that the front portion of the tract taken has a higher value than the rear portion not taken, the landowner must be awarded the higher value for the land actually taken rather than an averaged value based on its proportionate portion of the land-area of the parent tract.”

In an effort to rebut the proposition that the front portion of that tract had a higher and better use than the rear, the State offered the testimony of David E. Black, a well-qualified agricultural economist. The landowner’s objection to its relevancy was sustained, however, and it was then introduced and made a part of this record as an offer of proof. The thrust of that testimony was that the use of the front portion of this agricultural tract for residential or commercial purposes would be economically unsound and would jeopardize the entire agricultural operation because under current environmental requirements, a buffer zone of some forty unusuable acres would then be required for the aerial application of insecticides to that part still under cultivation. Other economic implications were also suggested, all of which lead the witness to conclude that the testimony of the defendant’s appraisers was unrealistic in that regard.

Initially, we find that the testimony of the witness was relevant to a determination of the highest and best use of the property south of Louisiana Highway 1 and was proper rebuttal to the landowner’s case. However, the weight that it should have been accorded by the trial judge is necessarily minimal; as previously noted herein, our Supreme Court, in Hoyt, supra, again -stated that “The landowner is thus to be awarded the actual market value of the particular portion of the property taken, valued according to its highest and best use.” The test, therefore, is that of highest and best use, not of what use a prudent landowner might make of his holdings. A highest and best use determination was made by the trial judge based on competent evidence in the record; we find no error in that judgment.

Since the temporary construction servitude immediately paralleled and adjoined the taking south of the highway, a $9,000.00 per acre value was also applied to that property. The court accepted Mr. Driggers’ suggestion of 8 per cent per year for three years as a proper measurement for the award. Therefore, valuing the 2.-912 acres required for that period of time at $9,000.00 per acre would dictate payment to the landowners of $6,290.00, which was ordered by the court below.

Severance damages were refused for the acreage south of the highway but were ordered in the amount of 10 per cent for the three remainders created north of the highway, which together totaled 4.565 acres. That award was less than the 15 per cent severance damages assigned by Williams and the 20 per cent found by Book. Mr. Driggers found no severance damages; Mr. Carlock found that only the 24 foot remainder cut off by the drainage servitude should be considered damaged, and that to the extent of 90 per cent. Rather than accept the testimony of any one appraiser on the question of severance damages, the court arrived at a value between those suggested by the experts. The record indicates that while the property fronting on Bayou Lafourche was reduced in depth by some twenty to thirty feet at varying locations by the taking, that because of the great demand for such property, its value was not greatly diminished thereafter. An award of severance damages between the amounts estimated by the appraisers is within the broad discretion of the trier of fact and is well supported by the record herein. See State, Department of Highways v. McPherson, supra.

For the foregoing reasons, the judgment appealed is affirmed. The appellant is cast with all court costs for which it is legally liable.

Affirmed.


author: DOMENGEAUX, Judge.

text:
    Brenda Gail Fontenot Johnson GRIMES, Plaintiff-Appellant, v. Wayne JOHNSON, Defendant-Appellee, Mr. and Mrs. William K. Paugh, Intervenors-Appellees.
    No. 5197.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 20, 1975.
    Rehearing Denied Dec. 17, 1975.
    Writ Refused Feb. 3, 1976.
    Booth, Lockard, Jack Pleasant & LaSage by Herman E. Sockrider, Jr., Shreveport, for plaintiff-appellant.
    John P. Navarre, Oakdale, and Tate & Tate by Donald J. Tate, Mamou, for defendant-appellee.
    Before CULPEPPER, DOMENGEAUX and PAVY, JJ.
   DOMENGEAUX, Judge.

This appeal concerns itself with the permanent custody of four minor children, issue of the marriage between Brenda Gail Fontenot and Wayne Johnson. The children are Mark, age 10, Steven, age 9, Brian, age 8, and Evelyn, age 4.

This instant action was commenced by the plaintiff mother by rule seeking a return of the custody of the four children. The defendant husband responded to the rule and sought a reaffirmation of his custody rights in the children, and alternatively that the children be awarded to his mother and stepfather, Mr. and, Mrs. William K. Paugh. The Paughs intervened in this rule, seeking the custody themselves. After trial on the rule, the District Judge awarded the permanent custody of the children to the intervenors. The only appellant herein is the mother, Brenda Gail Fontenot. There is no answer to the appeal by any of the other parties.

The facts show that Wayne Johnson and Brenda Gail Fontenot were married in 1963 when he was 21 years of age and she was 16. They both came from and lived in Oakdale, Allen Parish, Louisiana, which is also the place of residence of the interve-nors, Mr. and Mrs. Paugh. The first four years or so of Wayne and Brenda’s marriage were fairly normal; however, the last five years thereof were ones of marital difficulty between the parties with at least three periods of physical separation, including the filing of two separation suits by the wife. It is rather clearly established that during the later years of the marriage, disagreements, fighting, separations and reconciliations permeated the association between the two. There is some evidence of physical abuse on the part of Wayne towards Brenda, although the extent and severity thereof is in dispute. The evidence also shows that Brenda dated other men. In the latter regard the record is inconclusive as to whether these instances occurred during the periods when the parties lived together or only when they were physically separated, as contended by Brenda. One matter is very clear and that is that the grandparent interve-nors during all of these periods of difficulties were greatly solicitous of the welfare of the children and attempted to help the young couple. Further, the children lived with the grandparents a goodly part of the time, and during each physical separation of the parties the children were living with the grandparents until reconciliations could be effected. All parties agree that the grandparents from the beginning were exemplary in their concern and care of the children.

The sequence of events commencing in March, 1973, are particularly significant in connection with this present custody case. On March IS, 1973, Brenda filed suit for legal separation in the captioned District Court on the grounds of cruelty and sought custody of the children and child support. Wayne reconvened seeking a legal separation on the grounds of abandonment. That lawsuit resulted in a consent judgment wherein Wayne was granted the separation and Brenda was awarded the custody of the children with Wayne being condemned to pay child support in the amount of $75.-00 per month. Thereafter the parties reconciled and lived together for some period of time. Wayne contends that that period was only three days, whereas Brenda contends that the period lasted almost two weeks.

On May 23, 1973, Brenda, after sending the three older children to school, had one of her girlfriends drive her to Alexandria, Louisiana, where she boarded a bus to Pine Bluff, Arkansas, leaving the children behind, informing no one of her departure. She did not tell her children that she was leaving when they went to school that morning. The youngest child was left with a neighbor with instructions to bring the child to Brenda’s sister’s home. It is clear that no one, not even the friend who drove her to Alexandria, had any idea where Brenda was going. Brenda did not return to Oakdale, Louisiana, until March, 1974, some ten months later, at which time she saw her children again for the first time since leaving them. For six weeks after she left Oakdale there was no contact with the children or with anyone else from the Oakdale area. During the ten months of absence Brenda sent one card to the children and talked to them three times on the telephone, although she regularly spoke by telephone and corresponded with other friends in the Oakdale area after the initial six weeks’ absence.

On June 27, 1973, Wayne Johnson obtained the legal custody of his children in a suit filed in the within District Court. Substituted service was made on Brenda through an attorney on Brenda’s parents, who like all of the other parties herein, lived in the Oakdale area. Wayne has had the legal custody of these children until the time of the decision in this case; however, the physical custody of the children has been with the intervenors, Mr. and Mrs. Paugh since May, 1973, some 29 months. It is undisputed that the children were well cared for by the grandparents and were happy with the situation. They attended church regularly and participated in various school and church functions, are doing very well in school, and are in excellent health.

During the ten month period when Brenda was in Arkansas the evidence shows that she kept steady company with a man named James (not further identified) and that she intended to marry him. She also secured an Arkansas divorce from Wayne, with Wayne making an appearance through an attorney. The question of the custody of the children was not litigated or passed upon in the Arkansas court.

Brenda moved to Marshall, Texas, after returning to Oakdale, Louisiana, and married her present husband, Johnny Grimes, on August 29, 1974. On October 20, 1974, she filed the present rule seeking custody of her children, which was tried on December 11, 1974. Shortly before the hearing on the rule Brenda and her new husband moved into a rented home in Marshall, Texas. Her new husband is willing to have Brenda’s children live with them. Mr. Grimes is himself divorced and paying child support to his former wife for the support of his five year old daughter. He is employed and nets approximately $700.00 per month. In the meantime, Wayne Johnson has remarried, but he and his present wife remained together for only some thirty days, and it appears that this marriage is headed for legal separation.

The trial judge, in his reasons for judgment awarding the custody to the grandparents-intervenors, stated:

“ . . . It is the opinion of this Court that the plaintiff-mother presently lacks the emotional stability required to make her fit to properly raise and care for said minors. This conclusion is based upon both her past performance and her demeanor in the courtroom both on and off the witness stand. It is further the opinion of the Court that the defendant-father is unfit at the present time to care for said minors due to the chaotic nature of his own matrimonial affairs and due to the nature of his employment; and that he is totally dependent upon intervenors to care for said minors ..."

He further stated in his reasons that he adopted as written reasons the statement of facts and legal arguments and conclusions of the attorneys for the intervenors. The record does not contain the referred to statement of facts and legal arguments.

The question to be decided is whether the plaintiff-mother is to be deprived of the custody of her four minor children because it is in the children’s best interests to be placed with the grandparents.

It is well settled of course that a parent has the paramount right to custody and may be deprived of that custody only when there are compelling reasons, and when the parent competes with non-parents of the child or children the parent’s right to custody is superior, unless the parent is unable or unfit, having forfeited parental rights. Wood v. Beard, 290 So.2d 675 (La.1974), and cases cited therein.

Although the trial judge did not elaborate upon the specific reasons given for placing the permanent custody with the grandparents, it is evident from a review of the record that he placed great emphasis on the circumstances under which the mother left Oakdale on May 23, 1973, as described hereinabove. Although we are not prepared to state that the circumstances at that time amounted to a “legal” abandonment of the children, the mother’s actions were certainly a physical abandonment, and amount to obvious irresponsibility and immature judgment.

The cold record does not show us what “her demeanor in the courtroom both on and off the witness stand” was, as stated by the trial judge, but certainly the trial judge, who saw, heard, and observed her, must have had grave doubts as to her emotional stability.

Under all of the circumstances of this case, the determinations of the trial •judge are entitled to great weight.

Of additional significance in this case is the close sequence of the mother’s activities leading up to her present marital status at the time of trial on December 11, 1974. By her own admission she was preparing to marry a man by the name of James in Arkansas. She suddenly moved to Marshall, Texas, and rather quickly and unexpectedly married another man, her present husband, Mr. Grimes. In light of this background on the question of her present circumstances, the trial judge apparently thought, and we concur, that there was not an ample showing on the part of the mother, that her present marital circumstances had reached a degree of stability warranting the removal of the children to Marshall, Texas. It is to be remembered that at the time of the trial, Brenda had been remarried for only about three months.

No issue is made as to the application of the “double burden” rule as set out in Decker v. Landry, 227 La. 603, 80 So.2d 91 (1955), and recognized in Estes v. Estes, 261 La. 20, 258 So.2d 857 (1972), and Fulco v. Fulco, 259 La. 1122, 254 So. 2d 603 (1971). But to the extent that it may be applicable to the facts of this case, with reference to the Court’s award of custody to the father on June 27, 1973, we conclude that the appellant has failed in the burden thereunder.

As was stated in Estes, supra:

“When the trial court has made a considered decree of permanent custody in the light of the above principles, even though such custody is subject to modification at any time when a change of conditions demands it, the party seeking the change bears a heavy burden of proving that the continuation of the present custody is so deleterious to the children as to justify removing them from the environment to which they are accustomed.”

Considering the totality of circumstances in this rule by plaintiff-mother to cause a change of custody, we find no abuse of discretion on the part of the trial judge in his findings “that the plaintiff-mother presently lacks the emotional stability required to make her fit to properly raise and care for said minors”. Therefore, for the reasons assigned, the judgment appealed is affirmed. All costs of this appeal are assessed against the plaintiff-appellant.

Affirmed.


author: MILLER, Judge.

text:
    Cleddie H. VICKERS, Plaintiff-Appellant, v. PREFERRED RISK MUTUAL INSURANCE COMPANY, Defendant-Appellee.
    No. 5184.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 20, 1975.
    Rehearing Denied Dec. 17, 1975.
    Writ Refused Feb. 3, 1976.

      Griffing & Scott by Hal J. Scott, Jones-ville, for plaintiff-appellant.
    Falkenheiner, Calhoun & Murray by Nathan M. Calhoun, Vidalia, for defendant-appellee.
    Before MILLER, WATSON and CUTRER, JJ.
   MILLER, Judge.

Plaintiff Cleddie Vickers appeals a summary judgment dismissing his claim against his insurer defendant Preferred Risk Mutual Insurance Company on finding his policy had been cancelled three months before the loss was sustained. We affirm.

Plaintiff Vickers contends the notice of cancellation received by him July 3, 1973 was not effective because his insurer did not send his unearned premium until October 19, 1973, several days after the October 13th accident.

Vickers purchased the coverage on May 14, 1973 and paid the $102.40 semi-annual premium. There is a dispute concerning the company’s alleged attempt to refund the unearned premium on July 2, 1973. Both parties have argued the appeal of this summary judgment on the premise that the unearned premium was not mailed to Vick-ers until three months after the July 14 cancellation.

LSA-R.S. 22:636 regulates cancellation of insurance policies and provides in sub-part A for the type cancellation notice received by Vickers. Vickers argues cancellation did not become effective because sub-part D requires an actual refund of the unearned portion of the premium “as soon as practicable following such cancellation.”

Does the failure of the insurer to mail the unearned portion of the premium within three months after cancellation have the effect of voiding the cancellation notice? F & H Catering Service, Inc. v. United States Fidelity & Guaranty Company et al, 249 La. 667, 190 So.2d 91 (1966) holds non-compliance with policy or statutory provisions requiring the unearned premium to be actually paid to the insured or to be mailed “as soon as practicable” creates nothing more than a creditor-debtor relationship between the parties and does not render prior cancellation of the policy ineffective.

Vickers seeks to distinguish F & H because cancellation in F & H was made for nonpayment of the premium. Here no reason was given for cancellation and the premium had been paid. We reject that contention. In F & H the insured financed the premiums and cancellation was recommended because the insured failed to keep the account current. The unearned premium due was subsequently credited to the account.

We hold the difference between refunding money and cancelling an outstanding debt is not material to the validity of the notice of cancellation.

Counsel contends this interpretation of the law works an injustice to his client. His client made several attempts to obtain a refund of the unearned premium and was told his refund was being processed. LSA-R.S. 22.636(D), as interpreted by F & H, supra, does not condition cancellation of insurance coverage on the prompt refund of the unearned premium. The legislature could amend the statute, but this court may not. Except for the holding in F & H, supra, we would find the policy cancellation to be contingent on the carrier’s compliance with the terms of LSA-R.S. 22:636(D).

The trial court judgment is affirmed at plaintiff appellant’s costs.

Affirmed.


author: MILLER, Judge. HOOD, Judge

text:
    Jeffrey DESHOTEL, Plaintiff-Appellee, v. CALCASIEU PARISH POLICE JURY, Defendant-Appellant.
    No. 5154.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 20, 1975.
    Rehearing Denied Dec. 17, 1975.
    Writ Refused Feb. 6, 1976.

      Joseph W. Greenwald, Asst. Dist. Atty., Lake Charles, for defendant-appellant.
    McHale & Bufkin by Louis D. Bufkin, Lake Charles, for plaintiff-appellee.
    Before HOOD, CULPEPPER, MILLER, DOMENGEAUX and WATSON, JJ.
   MILLER, Judge.

Defendant Calcasieu Parish Police Jury appeals the judgment ordering it to issue a beer and liquor permit to plaintiff Jeffrey Deshotel. We affirm.

Deshotel owns property near Westlake in Calcasieu Parish. On January 8, 1975 Deshotel asked the Parish chief planning officer if there were zoning or legal impediments to building and operating a bar and lounge on his property. He was informed no impediment existed but a neighboring resident had inquired to determine the procedure to have the area zoned agricultural. Deshotel was told the agricultural classification, if adopted, would prevent establishment of the bar and lounge business.

On that day Deshotel applied for a beer and liquor permit to operate the business on his property and made the required deposit. Construction of the building was commenced. It was completed about February 1st and on February 4, 1975 the Louisiana Health and Human Resources Administration declared it fit for its intended use as a lounge and bar.

On February 5, 1975, the Police Jury met in regular session. The usual order of business was changed to take up zoning applications before permit applications. The agricultural classification was adopted and at the same meeting, Deshotel’s permit was denied for the reason he was in an area zoned agricultural.

Deshotel contends his permit should have been issued despite the jury’s reclassification of his property; that his business was a preexisting nonconforming use and therefore excepted from the amendment to the zoning ordinance.

The amended zoning ordinance was the sole basis for refusing to issue the permit. The jury concedes the license must be issued if the amended zoning ordinance did not prohibit Deshotel’s business.

The jury contends the nonconforming use is not established in fact, since no sales of beer or liquor occurred. It argues operation of a bar and lounge is illegal absent a permit, and therefore Deshotel had not established a nonconforming use. We distinguish Comeaux v. Jefferson Parish, 164 So.2d 123 (La.App. 4 Cir. 1964) where unlawful use was not recognized. The court was there concerned with a violation of an ordinance then in effect. We also distinguish Boyd v. Donelon, 193 So.2d 291 (La.App. 4 Cir. 1967) where the nonconforming use was not established because the partially erected structures violated terms of the permit under which they were built.

Since this property was unclassified Deshotel needed no construction permit. Constructing the building violated no law or regulation. Although he could not legally operate the bar and lounge without a beer and liquor permit, he could legally build a bar and lounge, and he did.

The trial court held Deshotel’s construction of the building brought him within this exception allowed by Art. VII of the ordinance :

§ 2. Construction approved prior to ordinance.
Nothing herein contained shall require any change in plans, construction, or designated use of a building for which a building permit has heretofore issued and the construction of which shall have been diligently prosecuted within three (3) months of the date of such permit and the groundstory framework of which including the second tier of beams, shall have been complete within six (6) months of the date of the permit, and which building shall be completed according to such plans as filed within one (1) year from the date of this chapter.

Since the zoning ordinance requires no building permit in Deshotel’s unclassified area, construction which does not violate other laws or regulations is permitted. Had a permit been required as of January 1975, the Parish would have been required to issue a building permit to Deshotel. Wrongful withholding of a building permit would not prevent Deshotel from establishing a nonconforming use. City of Shreveport v. Dickason, 160 La. 563, 107 So. 427 (1926). Construction cannot be retroactively made illegal by an ordinance. And construction cannot be made retroactively illegal because Deshotel failed to obtain a permit which was not required.

The final issue concerns the jury’s allegation that Deshotel lacked “good faith.” This is bottomed on information Deshotel obtained when he applied for the permit. He learned a neighboring resident had inquired about changing the zoning classification in that area.

Some states ascribe no importance to knowledge on the part of the parties and recognize there may be a race, within the bounds of law, to establish a use or adverse classification. Corcoran v. Village of Bennington, 128 Vt. 482, 266 A.2d 457 (1970). Pretermitting this issue, Desho-tel’s knowledge was insufficient to label his acts as having been made in bad faith. He was made aware of a citizen inquiry, not a contemplated action or hearing by the public body. His estimate of the seriousness of that inquiry must be evaluated in light of his knowledge of the property in question and its suitability for agricultural classification. It was six or seven miles to the nearest area which had been zoned as a classified area by the Parish. The parties moving to zone the area were attempting to prevent the sale of alcoholic liquor and beverages in their neighborhood. They selected 17.7 acres which included Deshotel’s entire 7 acre tract, but excluded some of the moving parties property. Their petition to zone the area “agricultural” was signed by owners of 50.3% of the 17.7 acre tract and almost all of Deshotel’s neighboring property was currently under commercial use. Tr. 73-7. Deshotel was not in bad faith. There is no manifest error in the trial court determination Desho-tel was entitled to rely on the existing conditions and ordinance when he undertook construction and applied for his permit.

Since lawful construction was commenced and completed before passage of the zoning amendment, a nonconforming use had been established.

The jury’s reliance on the violation of the zoning ordinance was improper. Therefore their refusal to issue the permit was unsupported. There is no manifest error in the trial court’s grant of the writ of mandamus.

The trial court judgment is affirmed at appellant’s cost.

Affirmed.

HOOD, J., dissents and assigns written reasons.

CULPEPPER, J., dissents for the reasons assigned by HOOD, J.

HOOD, Judge

(dissenting).

I respectfully disagree with the conclusions reached by the majority.

The evidence show that on January 7, 1975, Stephen S. Coleman, Calcasieu Parish License Officer, received a telephone call from Planey Fontenot, Jr., inquiring as to whether a license to sell alcoholic beverages had been issued to plaintiff, Jeffrey Deshotel. Coleman advised Fontenot that no such permit had been issued, and that none could be granted until it was approved by the Police Jury. Coleman knew at that time that some of plaintiff’s neighbors were seeking to have the area which included plaintiff’s property zoned so that alcoholic beverages could not be sold there.

On the same day, January 7, Fontenot also telephoned Dean Lawrence Ford, Planning Officer for Calcasieu Parish, advising that he and a group of residents in the area where plaintiff lived wanted to zone the property in that neighborhood so that alcoholic beverages could not be sold there, and he inquired as to the procedure which would have to be followed in getting the property zoned. Ford explained to Fontenot the procedures which were required for zoning, and the parties agreed that Fontenot would go to Ford’s office in Lake Charles at 3:00 P.M. the following day, January 8, 1975, to work up a description of the property which the group represented by Fontenot wanted to have zoned and to prepare and file a zoning petition.

Early in the afternoon of January 8, 1975, before Fontenot got to Ford’s office, plaintiff Deshotel contacted Ford, the Planning Officer, and inquired as to whether his property had been zoned in such a manner that he could not sell intoxicating liquors there. Ford told him that the property had not been zoned, but he also informed Deshotel that inquiries had been made by Deshotel’s neighbors the previous day about the procedure which would be required to have it zoned, and that some of the residents of that area were planning to come to Ford’s office later that afternoon to draft a petition asking to have the property in that neighborhood zoned. ■

After receiving that information, Desho-tel immediately went to Coleman’s office and applied for a permit to sell intoxicating liquor on his property, knowing that that property was located in the area which his neighbors were seeking to have zoned. Plaintiff’s application for a liquor license was filed on the afternoon of January 8.

Fontenot met with Ford in the latter’s office at about 3:00 P.M. on January 8, 1975, as planned, shortly after Deshotel had been there. Ford discussed the matter with Fontenot, and he made an actual inspection of the property which Fontenot and the group he represented desired to have zoned. Ford felt that the best classification for the property was for agricultural purposes, and he recommended that Fontenot and his group seek to have it classified as such in the zoning ordinance. He then assisted the group in drafting a petition to be signed by residents of that area seeking to have the property zoned for agricultural purposes. The requisite number of residents of that area signed the petition, and it was filed in the office of the Parish Planning Officer on January 9.

Immediately after Deshotel applied for a liquor permit on January 8, he began constructing a building on his property suitable for use as a lounge and bar, and the construction of that building was completed less than a month later, on February 4, 1975. On the last mentioned date he had the building inspected by C. H. Gillhan, a Sanitarian with the Louisiana Health and Human Resources Administration, who certified that “all equipment installed and is ready to operate.”

The Police Jury met on February 5, 1975j and after considering the above zoning petition, it adopted an ordinance zoning the property around and including plaintiff’s tract of land for agricultural purposes. The ordinance had the effect of prohibiting the sale of intoxicating liquor in the zoned area. Deshotel’s application for a permit to sell intoxicating liquors in that area also came up before the Police Jury that day, but the Police Jury rejected his application for the reason that the property had been zoned.

Plaintiff thereafter submitted another application to the Police Jury for a license to sell intoxicating beverages on his property. That application was considered by the Police Jury at a meeting held on March 5, 1975, but it also was denied. This suit was instituted on March 11, 1975.

Article VII of the zoning ordinance adopted by the Calcasieu Parish Police Jury relates to “Nonconforming Uses.” Sections 1 and 2 of that article provide:

“Sec. 1. Existing nonconforming uses.
“The lawful use of any building or land existing at the time of the enactment of this chapter may be continued, although such use does not conform with the provisions of this chapter.
“Sec. 2. Construction approved prior to ordinance.
“Nothing herein contained shall require any change in plans, constructions, or designated use of a building for which a building permit has been heretofore issued and the construction of which shall have been diligently prosecuted within three (3) months of the date of such permit and the ground story framework of which, including the second tier of beams, shall have been completed within six (6) months of the date of the permit, and which entire building shall be completed according to such plans as filed within one (1) year from date of this chapter.”

No attack is made on the zoning ordinance adopted by the Police Jury, both parties apparently conceding that that ordinance is valid and enforceable. No one questions the “good faith” of the Police Jury in zoning the area which includes plaintiff’s property, and the majority has held that “Deshotel was not in bad faith.”

I agree that neither the Police Jury nor Deshotel were in bad faith. The residents of the affected area knew that Deshotel was seeking a permit to sell intoxicating liquors on his premises, and Deshotel knew before he applied for a liquor license and before he began constructing a building that his neighbors were seeking to have the property zoned so as to prohibit the sale of such liquors there. There is no question but that Deshotel on the one hand, and his neighbors on the other, engaged in a race to accomplish their respective purposes. Deshotel sought to obtain a liquor permit and to establish a nonconforming use of the property before the zoning ordinance was adopted, and his neighbors sought to get the zoning ordinance adopted before Deshotel could begin using the property for the sale of intoxicating liquors. Desh-otel lost the race.

The evidence shows that plaintiff has never obtained a permit to sell intoxicating liquor on the above mentioned property. He has never operated a bar and lounge on those premises, and he has never sold any alcoholic beverages on them. He clearly has not established a nonconforming use of the property prior to, at the time of, or at any time after the adoption of the zoning ordinance.

My colleagues quote and rely on Section 2 of Article VII of the ordinance, which relates solely to the construction of buildings on property in the zoned area. The majority holds, as I understand the opinion, that plaintiff has the right to sell aleo-holic beverages in the building which he constructed, despite the fact that it has never been used for such a nonconforming purpose, because (1) no building permit was required for the construction of such a building, (2) had such a permit been required the Parish would have been required to issue one to plaintiff, (3) the wrongful withholding of a building permit would not prevent Deshotel from establishing a nonconforming use, and (4) construction cannot be made retroactively illegal because Deshotel failed to obtain a permit which was not required.

I find no fault with any of the conclusions of law expressed by the majority, but none of those conclusions have anything to do with the issue which is presented here. The question to be resolved in the present suit is whether Deshotel was using his property for the sale of intoxicating liquors prior to and at the time that property was zoned for agricultural purposes.

In my view, Section 2 of Article VII of the zoning ordinance relates solely to the construction of buildings on zoned property, and it does not relate to the use which was being made of those buildings at the time the property was zoned. Actually, I believe that that section is applicable only in cases where a building permit is required and had been issued before the property was zoned. It is not applicable in this case, since a building permit was not required.

I would hold, if such an issue were presented here, that plaintiff had the right to continue the construction of the building which he began before the property was zoned, even though it may not have conformed to the requisites of the ordinance. That issue is not presented in this case, however. No one has sought or is seeking to prevent plaintiff from completing the construction of his building. The only issue presented here is whether he was using that building for the sale of alcoholic beverages before and at the time the property was zoned. The evidence shows, without contradiction, that he has never used the premises for that purpose.

A valid and enforceable ordinance prohibits the sale of alcoholic beverages on plaintiff’s property. The building which he recently constructed on that property is not exempt from the above prohibition, under Sections 1 or 2 of Article VII of the ordinance, because no part of the property was being used for such a nonconforming purpose at the time it was zoned.

In my opinion, the trial court erred in ordering the Police Jury to deliver to plaintiff liquor and beer permits for use on the property involved in this litigation. I would reverse the judgment rendered by that court.

For these reasons, I respectfully dissent.


author: PER CURIAM.

text:
    Clayton L. ETHERIDGE v. Arch V. DOUGHTY et al.
    No. 10686.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 21, 1975.
    Rehearing Denied Dee. 11, 1975.

      C. Alvin Tyler, Baton Rouge, for appellant.
    Richard Kilbourne, Clinton, for Arch V. Doughty.
    Leon A. Picou, Jr., Dist. Atty., St. Fran-cisville, and W. Lee Overton, Asst. Dist. Atty., Clinton, for Supervisors of Elections and Commissioners of Election.
    Before ELLIS, COVINGTON and LOTTINGER, JJ.
   PER CURIAM.

Plaintiff, Clayton L. Etheridge, brings this suit to have declared null the result of the primary election for sheriff of East Feliciana Parish held on November 1, 1975. To the petition, defendant-contestee, Arch V. Doughty, filed an exception of prescription, which was sustained and the suit dismissed. From that judgment, plaintiff-contestant has appealed.

The record shows that the election was held on November 1, 1975. On November 3, 1975, the Parish Board of Supervisors of Elections met and compiled the results of the election. These were entered on forms provided by the Secretary of State and forwarded to the Secretary of State on November 4, 1975. A copy thereof was also delivered to the office of the clerk of court on November 3, 1975. Two of the members of the Board signed the forms on November 3 and the other member signed on November 4,1975.

This suit was filed on November 10, 1975, alleging various irregularities in the manner in which the election was conducted and asking that it be declared null. In this Court, defendant-contestee has filed a motion to dismiss the appeal on procedural grounds. In view of our decision herein on the exception of prescription we preter-mit consideration thereof.

R.S. 18:420, which provides the procedures and delays for election contests in court, contains the following provision:

“H. No contest shall be entertained unless brought within two days after the official promulgation of the result of the election.”

Plaintiff contends that the results of the election were not “promulgated” until Friday, November 7, 1975, when they appeared in the “Watchman,” a weekly newspaper of general circulation in East Feli-ciana Parish. It is contended that, since two legal holidays, Saturday and Sunday, November 8th and 9th, 1975, intervened, the suit was filed “within two days” on November 10, 1975.

In Cooper v. Broussard, 266 So.2d 549 (La.App. 1 Cir. 1972), writs den. 263 La. 1, 266 So.2d 710 (1972), in deciding a similar case, we said:

“If the action of the committee in compiling and tabulating the results of the election and certifying and declaring the result thereof that Moseley was the Democratic nominee for the Judge of Division ‘K’ is not an official promugation, then there is no statutory method prescribed for promulgation of the returns and the result of a primary election. This analysis would effectuate an untoward and impractical result and would make it cumbersome and almost impossible to determine the time of promulgation by the committee.”

We interpret the foregoing to mean that certification of the result of the election by the Board is tantamount to promulgation thereof. R.S. 18:416(B) provides that “all of these documents are public records and are open to inspection by anyone.” The law does not provide for any notice or publication thereof beyond the certification to the Secretary of State. However, a copy of the result was also filed with the Clerk of Court of East Feliciana Parish on November 3, 1975.

We therefore hold that the result of the election was officially promulgated on November 4, 1975, and that, since plaintiffs contest suit was filed on November 10, more than two days thereafter, his cause of action has prescribed.

The judgment appealed from is affirmed at plaintiff’s cost.

Affirmed.


author: HOOD, Judge. DOMENGEAUX, J.,

text:
    STATE of Louisiana, Through DEPARTMENT OF HIGHWAYS, Plaintiff-Appellant, v. Wilfred SOILEAU, Defendant-Appellee.
    No. 4949.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 20, 1975.
    Rehearing Denied Dec. 17, 1975.
    Writs Granted Jan. 14, 28, 1976.
    Jack C. Fruge, Ville Platte, and D. Ross Banister, William W. Irwin, Jerry F. Davis, Johnie E. Branch, Baton Rouge, for plainti f f-appellant.
    Tate & Tate, by Donald J. Tate, Mamou, for defendant-appellee.
    Before HOOD, CULPEPPER, MILLER, DOMENGEAUX and WATSON, JJ.
   HOOD, Judge.

We rendered judgment in this case on June 24, 1975. See State, Department of Highways v. Soileau, 315 So.2d 384 (La. App. 3 Cir. 1975). The Supreme Court remanded the case for re-argument before a panel of at least five judges, pursuant to the provisions of Article 5, Section 8, of the Louisiana Constitution of 1974. See 320 So.2d 206 (La.1975).

The case has been re-argued in accordance with the order of the Supreme Court. After considering all of the facts and arguments of counsel, we have concluded that the judgment rendered by a panel of three judges in this case on June 24, 1975, is correct.

For these reasons, the judgment rendered herein on June 24, 1975, is reinstated and made the judgment of this court. (See 315 So.2d 384). The judgment appealed from is amended by reducing the amount of the award made to defendant from $28,075.00 to the sum of $475.00. In all other respects the judgment of the trial court is affirmed. The costs of this appeal are assessed to plaintiff-appellant.

Amended and affirmed.

WATSON, J., dissents for reasons previously assigned.

DOMENGEAUX, J.,

concurs in part and dissents in part, for the reasons assigned by Judge WATSON and both voted for a rehearing.


author: WATSON, Judge.

text:
    H. B. “Bud” FLETCHER v. Carol RACHOU, d/b/a La Louisianne Records and Recording Studio.
    No. 5252.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 20, 1975.
    Rehearing Denied Dec. 17, 1975.

      J. Minas Simon, Lafayette, for plaintiff-appellant-appellee.
    Bean & Rush by Warren D. Rush, Lafayette, for defendant-appellee-appellant.
    Before MILLER and WATSON, JJ., and CUTRER, J. ad hoc.
   WATSON, Judge.

This suit involves disputes between a recording artist and the owner of a recording studio. H. B. “Bud” Fletcher, the plaintiff and defendant-in-reconvention is an entertainer specializing in the telling of jokes and stories in “Cajun” dialect. The defendant and plaintiff-in-reconvention is Carol Rachou who does business as La Louisianne Records and Recording Studio. At issue was Rachau’s failure to make payment of royalties and Fletcher’s failure to make additional recordings. The trial judge held that Rachou owed Fletcher $2,-286.50 and Rachou had no valid claims against Fletcher.

Fletcher has appealed, claiming that the amount due is considerably in excess of the award; and Rachou has appealed, contending that the trial court erred in rendering a money judgment in favor of Fletcher and in failing to award damages to Rachou.

Prior to December 9, 1967, Fletcher made several recordings for Rachou which the latter sold successfully. The exact financial arrangement concerning these recordings is unclear from the record. On December 9, 1967, the parties entered into a written contract for a five-year term which provided basically: that Fletcher would record exclusively for Rachou; that recordings would be made at “mutually agreeable times”; that a royalty of 5% of the retail price (which amounted to 25 cents per album) would be paid; and that payment would be made semi-annually within 45 days after June 30 and within 45 days after December 31 of each year, subject to a deduction for all advances against royalties.

Significantly the recording contract did not call for the recordation of any particular number of records per year or during the term of the contract. There is no reference in the contract to royalties payable for prior recordings. The contract provides that, in the event of Fletcher’s death, the royalties will thereafter be payable to his wife.

Pursuant to this contract, Fletcher made only one record despite attempts by Ra-chou and his employees to encourage additional recording. Certain recording dates were set up, but Fletcher contacted the studio on each occasion and indicated that, for some reason, usually sore throat, he would be unable to record. In an effort to encourage Fletcher to make additional records, Rachou withheld payment of royalties earned by Fletcher, but on one or two occasions gave him a check for royalties with an understanding that a new record would be made shortly thereafter.

It is undisputed that, during the contract period, Fletcher did not make recordings for anyone else and that, as of the date of trial he had, to a large extent, retired from his activities as a “Cajun” humorist.

The contract between the parties expired on December 2, 1972, and, on December 6, 1973, Fletcher filed a petition alleging the existence of the contract, contending that no royalties had been paid since September 9, 1970 and that he was due an accounting and payment of all royalties. The petition was thereafter amended to claim the precise sum of $4,132.25. At no point in his petition or his amended petition did plaintiff assert a precise claim for royalties due under any prior contract on the several other records which he had made for Rachou prior to the December 9, 1967, contract.

Defendant Rachou answered, denying plaintiff’s claims and asserting a reconven-tional demand for $10,000. He claimed loss of expenses and profits from Fletcher’s failure to make recordings during the contract period, as the result of which Rachou lost the sale of those records and enhancement of the value of Fletcher’s other records.

There is a certain lack of collision on the issues by the parties to this lawsuit, one side arguing certain issues and the other side arguing different and sometimes unrelated issues. However, following the propounding and answering of extensive written interrogatories, as well as other pre-trial activities, the matter was tried on the merits and the trial court found essentially that:

1. the parties did not contract to make any particular number of records;
2. defendant failed to make timely payment of royalties;
3. defendant admitted that he owed plaintiff $2,286.50 and such sum was due and owing;
4. defendant was not entitled to recover on the reconventional demand for alleged loss of profits, and even if he were so entitled, the proof was not sufficiently clear to arrive at any amount due; and
5. the claim for out of pocket expenses was not corroborated in the evidence and could not be allowed.

Following judgment by the trial court, Fletcher applied for a new trial, contending that: according to answers to the interrogatories propounded to Rachou, Rachou admitted selling 18,529 records and, under the contract, Fletcher was entitled to 25 cents each or the sum of $4,632.25, less the payment of $500. Additionally, Fletcher contended that Rachou admitted the sale of another 6,456 records which would entitle him to additional royalties of $1,614.00 or a total of $5,746.25. In the motion for new trial, Fletcher also contended that the payment of royalties is a continuing obligation as long as Rachou sells the recordings and that he was entitled to an order for a continuing accounting by Rachou.

The motion for new trial was denied on the basis that the contract provided that all recordings were property of Rachou and royalties were due Fletcher only while the contract was in force. New trial was denied.

On appeal, Fletcher emphasizes the alleged error of the trial court in failing to hold that the royalties were continuing rather than limited to the five-year term of the contract. Rachou contends that the court erred in ordering payment of royalties to Fletcher, who, according to Rachou, either breached the contract or failed to perform under it, thereby entitling Rachou to have the contract dissolved and also entitling him to recover damages.

The issues to be decided on appeal are:

1. whether the trial court erred in awarding Fletcher $2,286.50 as past due royalties;
2. whether the trial court erred in failing to recognize that the payment of royalties is a continuing obligation; and
3. whether Rachou is entitled to:
(a) release from his obligation to pay royalties because of breach or nonperformance of the contract by Fletcher, and
(b) payment of damages.

I. Royalties

The trial court was correct in awarding the amount of $2,286.50 as past due royalties. Rachou concedes that this was the royalty only on the one record made under the contract. Fletcher persists in claiming royalties on all recordings made for Rachou, but this suit, as delineated by the petition and amending petition, is basically a demand for royalties due under the five-year contract of December 9, 1967, under which only one record was made. As to the prior records made by Fletcher for Rachou, the sale of which was alluded to in various interrogatories and answers to interrogatories, the trial court was not furnished any evidence concerning the agreement between the parties as to the amount of royalty, if any, payable on these records. The contract of December 9, 1967, did not relate to or refer to previous sales of records.

In his testimony, Rachou admitted owing Fletcher the amount awarded by the trial court, and under the circumstances, we find no error in this award.

We do not agree with the trial court, however, that the obligation to pay royalties terminated at the conclusion of the five-year contract. Certainly, since the contract did not relate to the several other records made by Fletcher for Rachou, it could have no effect on any obligation for payment of royalty under other agreements.

As to the single record made under the contract, Rachou contends apparently that the five-year contract itself provides that royalties would be payable only for five years. However, there is no such provision in the contract and no legal authority has been cited for Rachou’s contention. The five-year term relates to Fletcher’s obligation to make records exclusively for Rachou. Fletcher contracted only that any records he made during the five years would be made for Rachou. The obligation to pay royalties on any record made under the contract continues. The contract even provides for payment of royalties to Fletcher’s wife after his death.

Breach of Contract

This brings us to Rachou’s contention that Fletcher breached the contract and deprived him of profits. There is no evidence that Fletcher made recordings for any other person or firm during the contract period; the only indication of other professional activity by Fletcher was the testimony by the witnesses, Faulk, Fon-tenot, Stoma and Olivier, that Fletcher had made personal appearances at a bowling conference and Evangeline Downs Race Track and had made commercials for a dairy. (The contract related only to making records; see footnote 2). There was evidence by other witnesses, Leroy LeBlanc (professionally known as “Happy Fats”) and B. C. Fletcher (Fletcher’s brother), that, during the contract period, Fletcher suffered considerable difficulties with his throat.

Rachou’s contention is that Fletcher breached the contract to record by only making one record in five years and that this relieved Rachou of the obligation of paying royalties and also entitled him to payment of damages. This argument presupposes the validity and enforceability of the contract between Fletcher and Rachou. It assumes that Rachou could have affirmatively required Fletcher to make recordings. The argument fails for two reasons: first, under its terms the contract calls for no particular number of records to be made; and second, a contract for personal services is not affirmatively enforceable.

As to the first reason, the contract is clear; no particular number of records was required. As to the second reason, some consideration must be given to the basic nature of the contract. It was an agreement by an artist or performer to render personal services, akin to the contract of a singer to sing or a musician to play.

Under the law of contracts in our sister states, a contract for personal services by an artist or a performer will not be specifically enforced by an affirmative decree. Reinstatement of the Law of Contracts, § 379. According to the recognized authority in the field of contracts, Professor A. L. Corbin, there are three reasons usually given for this rule of law:

(1) difficulty of enforcing the decree and gauging the quality of the performance ;
(2) strength of the American prejudice against any kind of involuntary personal servitude; and
(3) frequent close association between employer and employee and the consequent undesirability of enforcement where confidence and loyalty have been disrupted by dispute.

See Corbin on Contracts, § 1204, pp. 400-401.

In Louisiana, the courts have recognized the abrogation of personal contracts by inability to perform. Most notable are the cases in which persons have contracted for a prolonged series of dancing lessons and later have become physically incapacitated to dance. Louisiana courts have held that, under these circumstances, particularly relying on LSA-C.C. art. 2003, such contracts are unenforceable. Acosta v. Cole, 178 So.2d 456 (La.App. 1 Cir. 1965), writ refused, 248 La. 432, 433, 179 So.2d 273, 274; Richardson v. Cole, 173 So.2d 336 (La. App. 2 Cir. 1965).

We think the reasoning expressed in Richardson and Acosta, as well as the considerations mentioned by Professor Corbin (which we find equally persuasive in Louisiana) justify our adopting and following the rule of law that a contract for personal services is not specifically enforceable by affirmative decree.

Also, the inability to perform as found in Richardson and Acosta, would, in our opinion, be an adequate basis on which the trial court could have found that Fletcher was not physically able to make additional recordings during the record period.

It does not follow, however, that, because Fletcher could not be required to perform or make additional records, royalties for records recorded during the contract period were not payable. The royalties are payment for services already performed, not, as Rachou seemingly believed, dependent on future recordings.

Therefore, we find that the trial court was correct in its conclusion that there was no breach of the contract on the part of Fletcher and, accordingly, Rachou was not entitled to any damages. Likewise, the trial court was correct in holding that there was not sufficient evidence to award Ra-chou out of pocket expenses resulting from the cancellation of recording dates by Fletcher.

For the reasons assigned, the judgment of the trial court is affirmed, but it is amended to reserve to Fletcher the right to claim any additional royalties due: (1) on the one record made under the contract of December 9, 1967, but accruing subsequent to the five-year term of the contract, and (2) on recordings made under any agreement other than the contract of December 9, 1967.

Cost of the appeal will be divided equally between the parties.

Amended and affirmed.

      . “Cajun” is a contraction of the word “Aca-dian” used in reference to persons of Acadian descent, many of whom live in the southern part of the State of Louisiana.

      . AVhile the wording of the contract is not at issue, for ease of reference we will quote the first four paragraphs:
      “1. This contract for your personal services is made between Carol J. Rachou D/B/A La Louisianne Records as the employer and you. AVe hereby employ to you render personal services and you agree to render such personal services exclusively for us for the purpose of recording and making records for phonograph records and/or tape recordings and other similar devices for home use.
      “2. Recordings will be made at recording sessions in the studios we designate at mutually agreeable times. Compositions to be recorded shall be designated by La Lou-isianne Records and each recording shall be subject to our approval as satisfactory for manufacture and sale. AVe shall at all times have complete control of the services to be rendered by you under the specifications of this contract and you agree that your services are unique, exceptional, and extra-ordinary.
      “3. For the rights herein granted and for the services to be rendered hereunder by you, we shall pay you a royalty of 5% of the retail price of all LP albums and tape cartridges (250 per album for albums that retail for $4.79), manufactured and sold by us and paid for by purchaser.
      “4. Payment of accrued royalties accompanied by statements shall be made semiannually, within 45 days after June 30, and within 45 days after December 31, in each year. However, we shall have the right to deduct from the amount of royalties due all advances against royalties.” (TR. 48)

      . The contract does not refer to records made prior to its term; the contention made in the motion for new trial was incorrect.

      . A clear distinction should be made between the enforcement of a contract by an affirmative order to perform and the negative enforcement by preventing performance of similar services for another. Other considerations are involved in negative enforcement and that is not the question here because there is no assertion of recordings made by Fletcher for anyone else.

      . The portion of art. 2003 relied on is as follows :
      “ * * * if the obligation be purely personal as to the obligee who dies before performance, his heirs may recover from the obligor the value of any equivalent he may have received.”
      Total disability has been analogized to death in the dancing cases and the disabled dancing student has been held to be entitled to recover the unearned portion of payment for lessons.


author: PETERS, Judge ad hoc.

text:
    RICHARD AND GAUDET, Plaintiff-Appellant, v. The HOUSING AUTHORITY OF the CITY OF LAFAYETTE et al., Defendant-Appellee.
    No. 5253.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 20, 1975.
    Rehearing Denied Dec. 17, 1975.
    Writ Refused Feb. 11, 1976.
    See 326 So.2d 337.

      Logan & DeLaunay, by Gerald De-Launay, Lafayette, for plaintiff-appellant.
    Davidson, Meaux, Onebane & Donohoe, by John G. Torian, II, Lafayette, for defendant-appellee.
    Before HOOD, HUMPHRIES, and PETERS, JJ.
   PETERS, Judge ad hoc.

Plaintiff appeals the judgment dismissing its asserted claim against the Housing Authority of the City of Lafayette, Louisiana (Housing Authority). The facts are stipulated and undisputed by the parties and this appeal presents only two issues of law concerning the scope of protection afforded under LSA-R.S. 38:2241-2248.

The defendant Housing Authority on January 19, 1970, entered into an architect’s contract with Architect & Designers, Inc. for professional services in connection with a housing project. Architect & Designers, Inc. then entered into a contract with plaintiff to supply engineering services for this job. The plaintiff supplied these services and submitted a bill for $13,661.82 to Architect & Designers, Inc. This amount was not paid and plaintiff subsequently filed a claim statement in the mortgage records of Lafayette Parish. No bond was posted to insure payment for these services. Plaintiff contends Housing Authority is personally liable for the debt due to its failure to require bond and its payment of sums to the general contractor after plaintiff’s claim was filed pursuant to LSA-R.S. 38:2242. Plaintiff contends the provisions of LSA-R.S. 38:2241 et seq, operate in its favor to render Housing Authority personally liable for the amount due plaintiff under its contract with Architect & Designers, Inc., and, further, that the contractor’s bond covers the amount owed to plaintiff.

Under Section 2241 a contract and bond is required of a contractor “for the faithful performance of the contract with an additional obligation for the payment by the contractor or subcontractor for all work done, labor performed, or material or supplies furnished for the construction, alteration or repair of any public works or for furnishing materials or supplies for use in machines used in the construction, alteration or repair of any public works.” In Silver v. Harriss, 165 La. 83, 115 So. 376 (1928) the court declared that the object of this part is to “protect persons doing work, performing labor, or furnishing material for the construction, erection, alteration, or repair of public works . . Plaintiff in this case seems to fit into this broad class.

However, it is well settled the statutes conferring liens are to be strictly construed. American Creosote Works v. City of Natchitoches, 182 La. 641, 162 So. 206 (1935). Further “the law is clear that statutes in derogation of common rights such as those creating civil penalties and liens and privileges are to be strictly construed and are not to be extended by analogy or implication, or through considerations of equity. Massachusetts Protective Ass’n v. Ferguson, 168 La. 271, 121 So. 863, 864; Boylan’s Detective Agency v. Brown & Co., 157 La. 325, 102 So. 417; L. P. Stephens & Co. v. Kellogg Lbr. Co., 18 La.App. 507, 137 So. 769.”

Section 2242 of the Act provides as follows :

“Any person to whom money is due for doing work, performing labor, or furnishing materials or supplies for the construction, alteration, or repair of any public works, or furnishing materials or supplies for use in machines used in the construction, alteration, or repair of any public works, excluding persons to whom money is due for the lease or rental of movable property, but including any architect and any consulting engineer engaged ,by the contractor or subcontractor in connection with the building or other public work, may after the maturity of his claim and within forty-five days after the recordation of acceptance of the work by the governing authority or- of notice of default of the contractor or subcontractor, file a sworn statement of the amount due him with the governing authority having the work done and record if in the office of the recorder of mortgages for the parish in which the work is done. After the filing and rec-ordation of claims, any payments made by the governing authority without deducting the amount of the claims so served on it shall make the authority liable for the amount of the claims.”

Plaintiff’s position is that the legislature would have included such architects and consulting engineers in the exclusionary clause of this section, had it intended them to be excluded. This position is untenable. The statute specifically includes those architects and consulting engineers who are engaged by the contractor or subcontractor. (Emphasis ours). No mention is made of architects and consulting engineers who are engaged by anyone other than the contractor or subcontractor. The exclusionary clause was designed to exclude certain people who were otherwise within the scope of protection of the act under the general provisions of Section 2242.

Appellant further contends that the contractor’s bond required by RS 38:2241 protects him and he is entitled to recover from the bondsman. The obvious intent is that the contractor’s bond is furnished to insure payment of all debts and obligations of the contractor or subcontractor. Since the services rendered by Architect & Designers, Inc. was not a debt of the contractor appellant cannot recover under this statute.

The jurisprudence is well settled that in order for a claimant to hold the prime contractor or the surety liable under LSA-R.S. 38:2241 it is necessary either that there be privity of contract or that the claimant furnish labor or materials to a contractor or subcontractor. Brouillette v. Atlas Construction Company (La.App. 2nd Cir. 1963), 151 So.2d 582; Moore v. Coastal Contractors, Inc. (La.App. 3rd Cir. 1966), 188 So.2d 467. Since appellant fits none of these categories he has no cause of action on the contractor’s bond.

For reasons assigned the judgment of the district court is affirmed at appellant’s cost.

Affirmed.