author: MILLER, Judge. HOOD, Judge MILLER, Judge. HOOD, J.,

text:
    STATE of Louisiana, Through the DEPARTMENT OF HIGHWAYS, Plaintiff-Appellant-Appellee, v. Dorothy Finke MIMS et al., Defendants-Appellees-Appellants.
    No. 5493.
    Court of Appeal of Louisiana, Third Circuit.
    July 6, 1976.
    Dissenting Opinion July 21, 1976.
    Rehearing Denied Aug. 18, 1976.
    On Rehearing Aug. 19, 1976.
    Writs Refused Nov. 5, 1976.

      Jack C. Frugé, Ville Platte, Johnie E. Branch, Jr., Wm. W. Irwin, Jr., Marshall W. Wroten, Baton Rouge, for plaintiff-appellant-appellee.
    Jack O. Brittain, Natchitoches, for defendants-appellees-appellants.
    Before HOOD, MILLER and WATSON, JJ.
   MILLER, Judge.

Plaintiff Louisiana Department of Highways appeals seeking a reduction in the $98,190.89 awarded defendants-landowners Dorothy Finke Mims and James Mims in payment for, and damages related to, the Department’s expropriation under the “quick taking statute.” LSA-R.S. 48:441 et seq. Landowners also appeal seeking an increase in the award together with attorney fees. We amend to make a slight reduction in the award, and affirm.

This is the same litigation which was before us in State, Department of Highways v. Mims, 311 So.2d 914 (La.App. 3 Cir. 1975). It now comes up on the merits.

On March 21, 1972, the Department filed expropriation proceedings to take eleven separate tracts totaling 35.25 acres. The Department deposited $22,982.20 as the fair market value of, and severance damages related to, the taken properties. Landowners were allowed to keep their minerals in perpetuity.

After the first trial the court awarded $56,250.02 for both the fair market value of the taken lands and severance damages suffered by landowners’ remaining properties. In written reasons assigned at that time, the court accepted the appraisal by landowners’ expert T. J. Stephens as being in accord with actual values. Nevertheless, specific reasons were assigned for reducing many items in Stephens’ appraisal. No reasons were assigned after that first hearing to support the refusal to award $19,950 in severance damages which, according to Stephens, resulted from the highway dividing landowners’ p.astureland into two separate operations.

Although little additional evidence was heard at the remand, the court increased the first award by $41,940.87. The court’s written reasons were limited to a brief statement that Stephens’ appraisal “accurately and truly sets forth the values of the properties taken and all damages resulting from the taking.” On that basis the court awarded $98,190.89.

In order to understand the issues, one must be aware of the 1959 highway right-of-way servitude negotiated and signed by the Department and the Mims. On the basis that the Natchitoches bypass road was to be constructed in the early sixties, the Mims sold to the Department a 35.178 acre right of way and some 24 acres of borrow pits for $10,985.70. In the 1959 written agreements the Department undertook to 1) move a house, 2) move certain orna-mentals, 3) drill a waterwell, and 4) provide an underpass so that the Mims 828 acre cattle operation would not be divided by the highway fencing and 15 foot high fill needed for the new road. Except for the underpass, the projected 1959 road would have divided the pastureland into two separate farm operations — one of 478 acres to the east, and the other of 320 acres to the west.

The Department did not use the 1959 servitude before the 1972 taking. The eleven parcels taken in 1972 are alongside the 1959 servitude and were necessary because in 1972 the Department was providing for four lanes instead of the two planned in 1959, and the fill was to have a slope of one in six instead of one in four.

Construction of the road had commenced at the time of the first trial, and was almost completed at the second. The trial court’s increase in the award could well have been based on the update of information at the second trial. For instance, at the first trial there was evidence tending to show that although the Department did not provide by contract for the underpass connecting landowners’ two pastures, the contractor intended to provide an underpass. At the second trial the Department offered no evidence to indicate the underpass had been or would be provided. Landowners testified there was no underpass. The failure to provide the underpass alone could account for at least a $19,950 increase in the trial court’s first award.

EXPERT APPRAISERS

The trial court’s conclusion that T. J. Stephens’ appraisal was the best defended is well supported by the evidence. Credibility of the Department’s experts was reduced by several factors. Both were almost full time contract appraisers for the Department; both were directed by the Department to use only one method of appraisal, the before and after method, and they did not consider the front land-rear land method; neither of the Department’s experts had ever bought or sold property in Natchitoches Parish, and both thought there were only two or three subdivisions between the Mims property and Natchi-toches, whereas there were at least ten; and finally, the Department’s experts based their opinion in part on misinformation concerning the price paid for an important comparable.

Furthermore the Department failed to present testimony of one of its experts who appraised the Mims property. The Department did not explain why that expert was not called to testify. There is an adverse inference that this expert would have testified against the Department. State, Department of Highways v. Willet, 322 So.2d 383 (La.App. 3 Cir. 1975); Pugh, Louisiana Evidence Law (1974), pp. 716-8.

The trial court was impressed by Stephens’ qualifications because he was an independent appraiser; his methods of appraisal have been approved by the jurisprudence; for many years he has bought and sold Natchitoches Parish properties on a daily basis; his comparables were well established — indeed, one witness testified that before the expropriation (and certainly after), he attempted to buy the Mims rural residential properties appraised by Stephens and was prepared to pay the sums used in Stephens’ appraisal. The land was not for sale. It was the rural residential properties that landowners’ experts valued at some four times the value set by the Department’s appraisers.

There is no manifest error in the trial court’s adoption of most of Stephens’ appraisal, and his rejection of the Department’s appraisals. State, Department of Highways v. Hab Monsur Corp., 301 So. 2d 667 at 672 (La.App. 3 Cir. 1974).

We find manifest error in only one phase of the trial court’s award. In that instance we accept the trial court’s first opinion. The court increased the $6,500 awarded for parcel 1-5 at the first hearing to $13,500 after the second. This parcel of 2.2 acres touches Spanish Lake Road at the intersection of the 1959 servitude. The Department’s appraisals averaged $1,284 for the parcel while Stephens assigned a value of $13,500. According to Stephens the property was rural commercial property with a value of $30 per front foot. In written reasons assigned after the first trial, the court held Stephens’ evaluation “somewhat too high because rather extensive work would have to be done filling the land to make it properly useable commercially and because of very limited commercial development in this area of Natch-itoches Parish.” The refusal to award more than $6,500 was well supported by that reasoning. The only commercial development in the area was the road contractor’s rental of a nearby parcel as a work area. If anything was established in this trial it is that fill work is costly. Therefore, we reduce the $13,500 awarded at the second trial to the original award of $6,500.

There is no manifest error in the trial court’s acceptance of the remainder of Stephens’ appraisal. The Department contends landowners’ appraisals were based on values attributed to the fronting of some of the Mims properties on the 1959 servitude, arguing this is improper since no highway was built until after the 1972 taking. We follow the cases of State, Department of Highways v. Wax, 295 So.2d 833 (La.App. 1 Cir. 1974), and State, Department of Highways v. Beatty, 288 So.2d 900 (La.App. 1 Cir. 1974). The court there ruled that where expropriated property was not included within the scope of the project from the beginning, and the project was subsequently enlarged to include additional property, landowner is entitled to receive compensation for the second taking at the enhanced value due to its proximity to the first taking. 288 So.2d 900 at 905-6.

There is ample evidence showing that acquisition of the 1959 servitude increased the values of property along the proposed highway. A Natchitoches Parish real estate broker testified it was difficult if not impossible to purchase land near the Mims properties along Louisiana Highway 1. He was willing to pay $51,000 for 1700 front feet along the 1959 servitude before the 1972 taking. James Mims testified that a number of people attempted to buy property fronting the 1959 servitude. The land was not sold only because landowners did not put it up for sale.

We will not burden the record by describing each of the eleven individual tracts and detailing the exact appraisals by the Department’s and the landowners’ appraisers. Suffice it to say that pastureland was appraised at $325 per acre by the Department and $375 by landowner. There is no manifest error in the trial court’s acceptance of the $375 per acre appraisal. Twenty-one acres of the taken lands were pastureland.

The remaining parcels were appraised on an acreage basis by the Department’s experts while landowners’ experts divided it into timberland (appraised by the acre), and rural residential or rural commercial (appraised by the front foot). There is no manifest error in the trial court’s acceptance of landowners’ appraisal and rejection of the Department’s. State, Department of Highways v. Pommier, 270 So.2d 274 (La.App. 3 Cir. 1972); State, Department of Highways v. Wells, 298 So.2d 304 (La.App. 3 Cir. 1974).

The Department complains that Stephens was overly generous in his appraisal of several specific items taken — a shop was valued at $3,168 by Stephens while the Department’s appraisals averaged $2,250; an old barn was valued at $669 by Stephens and the Department’s experts considered it to be without value; fencing was valued at $1,495.65 by Stephens and the Department’s appraisals averaged $1,000; a driveway was valued at $500 by Stephens and the Department’s experts considered it to be without value. Stephens’ appraisal was well documented and there is no manifest error in the trial court’s acceptance of his opinion on these items.

The Department contends that Stephens appraised trees and shrubs at $3,000, but we find no separate allowance for trees and shrubs in Stephens’ appraisal. He probably included that loss in his appraisal of the residental lot and the severance damages allowed to the residence, which is exactly what the Department contends should have been done.

The Department did not complain of Stephens’ $1,200 appraisal for the taking of landowners’ septic system.

The Department contends Stephens should not have allowed damages for the following items: $1,200 for a water well; $2,500 for a new cattle chute; and $4,300 for the Department's failure to replace Pampas grass, to relocate a residence and two sheds, to drill a new well, and to construct a drainage canal. Some of these items were required under the 1959 contract. It contends the $19,950 allowed for severance damages included these items. We don’t find a duplication and fail to find manifest. error in the trial court’s award. Without these items the severance damages could have been substantially increased.

SEVERANCE DAMAGES

All experts agreed severance damages were sustained by landowners’ home. Prior to 1972, Louisiana Highway 1 was located some 165 feet from their home; after the construction, the right-of-way was only 23 feet away. Prior to the taking, numerous large trees and shrubbery on the taken property insulated their home from problems created by highway traffic. Stephens assessed severance damages at $4,272.90 while one Department expert set the damages at $3,000 and the other at $4,-218. There is no manifest error in the court’s acceptance of Stephens’ appraisal.

Stephens opined that landowners’ pastureland suffered a $25 per acre diminution in value, or $19,950 in severance damages because it was impossible for cattle to cross from the 478 acre tract east of the highway to the 320 acre tract on the west. It was established at the second trial that, contrary to the Department’s 1959 contract to provide an underpass, and contrary to the contractor’s intent to build one, an underpass was not constructed. James Mims testified that over the years this barricade, the highway, would increase the cost of his cattle operations by more than $180,-000. Stephens’ justification of this item of severance damages is well supported by the evidence.

LANDOWNERS’- CLAIMS

Landowners seek to increase the trial court’s award by $8,125, contending the Department moved 65,000 cubic yards of dirt from landowners’ hill properties onto the low area. In addition to this 65,000 cubic yards of dirt, the contractor needed 375,000 cubic yards to build up the lower area; the contractor bought the latter amount from the Mims for $46,875. It is argued that when the contractor moved dirt from the highway servitude in the higher elevations to the lower area, landowners were deprived of the opportunity of selling 65,000 cubic yards of dirt and should, therefore, be awarded $8,125 for that loss.

No authority has been cited; we know of none to prevent the Department from allowing its contractors to move dirt found on its servitude from high areas where it must be removed to low areas where it is needed. Landowners might as well have claimed damages because the Department had no place to store the excess 65,000 cubic yards of dirt found where the road had to be cut, and thus landowners were deprived of a loss of income by virtue of the Department’s contractor finding another use for the dirt.

The trial court properly denied landowners’ claim for the loss of $8,125 related to the alleged loss of their opportunity to sell 65,000 cubic yards of dirt.

Landowners also claim they will not receive just compensation for their taken land unless their attorney’s $20,000 fee is assessed to the Department. They point to the fact that, as to cases filed after January 1, 1975, LSA-R.S. 48:453(E) permits an award of attorney fees to landowners when the court award exceeds the Department’s deposit. Landowners review many factors which show this case to have been particularly onerous—the Department failed to comply with its obligations under its 1959 contract; it failed to negotiate in good faith with landowners for the 1972 takings by refusing to consider appraisals made by landowners’ highly qualified appraisers.

Although it was established beyond doubt that landowners were required to employ an attorney to enable them to obtain the fair market value of their land, this is not the first case of its kind. Landowners admit the jurisprudence has uniformly denied attorney fees in these cases. This expropriation case was filed long before 1975, the effective date of the legislation allowing courts to grant attorney fees. There is no manifest error in the trial court’s refusal to grant attorney fees. Knox v. Brown, 325 So.2d 295 (La.App. 3 Cir. 1976).

EXPERT FEES

Finally, the Department contends the $5,659.50 taxed to the Department for fees due landowners’ six experts was exorbitant and contrary to the evidence. We disagree.

We distinguish State, Department of Highways v. Donner Corporation, 236 So.2d 841 (La.App. 3 Cir. 1970), cited by the Department. We agree with the holding that expert witnesses are entitled only to reasonable compensation for their appearance in court and for preparatory work done, and that their fees must be in line with those previously allowed in similar cases. LSA-R.S. 13:3666. The award of expert fees in this case is not contrary to that rule. In Donner, this court reduced expert fees of $4,755 and $6,209.50 to $2,250 each; landowner had been awarded some $17,700 more than the Department deposited for the taking. Here the $23,000 deposited was increased by almost $70,000. Stephens’ bill was the largest of landowners’ experts; he billed his time at $20 per hour in preparation and $125 for each day in court. The Department did not establish that Stephens did not spend time sufficient to justify his $2,060 bill.

The other experts did not document their time as thoroughly, but the trial court was impressed with their qualifications and testimony. Landowners’ expert Lacaze filed a detailed and well documented report. His appraisals were slightly higher than Stephens’. His bill of $1,855 was in line with the work demonstrated by his report and testimony. A substantial part of the bill by landowners’ experts was made up of a $100 per day charged for attending court. We find that all expert testimony was relevant and useful to the court. The Department failed to establish manifest error in the fixing of expert fees.

Specific objection was taken to landowners’ expert photographer’s bill of $486. He charged $186 for his photographs and $300 for court appearances. The photographer was a professional and his services were far more valuable than those of an amateur. When photographs are helpful to the court, landowner is entitled to have his photographer’s expert fee taxed as costs. State, Department of Highways v. Willet, 322 So.2d 383 (La.App. 3 Cir. 1975). There is no manifest error in the trial court’s assessment of this expert fee.

The trial court judgment is amended to reduced the $98,190.89 judgment to $91,-190.89. Otherwise the judgment is affirmed at the Department’s costs. The Department’s obligation to pay costs is subject to LSA-R.S. 13:4521.

AMENDED and AFFIRMED.

HOOD, J., dissents and will assign written reasons.

HOOD, Judge

(dissenting).

I cannot agree with some of the conclusions reached by the majority.

These two consolidated expropriation suits were tried originally over a period of three days, June 7, 1973, and February 4 and 5, 1974. The trial judge assigned detailed written reasons for judgment on May 3, 1974, and in those reasons he carefully analyzed the appraisals made of each item of property taken, determined the value of each such item, and discussed and decided on several awards of damages which he felt should be made to defendants.

On August 27, 1974, the trial judge handed down an “amendment to original opinion,” in which he determined that several other awards should be made to defendants, including separate awards for the value of a shop, a barn, fences, and a septic system which were included in the taking. He also made another (and I think a duplicate) award of severance damages to the residence occupied by defendants, and awards for the costs of digging a new well and performing drainage work on defendants’ remaining property.

Pursuant to those reasons, the trial judge rendered judgment on September 3, 1974, in favor of defendants, condemning plaintiff to pay them the total sum of $56,250.02, subject to a credit for the amount which plaintiff deposited originally, and fixing the expert witness fees for the three appraisers who testified in behalf of defendants.

Plaintiff appealed, and on that appeal we reversed the above judgment and remanded both cases to the trial court, because we found that that court had erred in requiring the parties to exchange expert appraiser reports, in violation of LSA-C.C.P. art. 1452. See State, Department of Highways v. Mims, La.App., 311 So.2d 914 and State, Department of Highways v. Mims, La.App., 311 So.2d 921.

After being remanded, the cases were re-tried in the district court on September 4, 1975, and at that trial the parties, by stipulation, filed in evidence the entire record, including the transcript of the testimony which was taken at the original trial. Defendants also introduced some interrogatories which had been propounded to plaintiff, some photographs and the testimony of seven witnesses who had testified at the original trial. The evidence taken at the second trial was brief, the transcript consisting of only 29 pages, a substantial portion of which included (1) statements by counsel of the stipulations they had entered into relating to the introduction of the record, (2) various “proffers of proof” of evidence which the trial court correctly ruled was inadmissible, and (3) the introduction of bills from six of the above witnesses for their services in appearing in court on that day. In my opinion, the evidence introduced at the second trial did not add to, enlarge upon, contradict or in any way explain or modify the evidence which was produced at the original trial. The judgment rendered after the second trial, therefore, was based on substantially the same evidence which formed the basis for the original judgment.

Following the second trial, the district judge rendered judgment increasing the award previously made to defendants from $56,250.02 to the sum of $98,190.89. He also increased the expert witness fees allowed the three appraisers who had testified for defendants, and he allowed expert fees to three other persons who testified at the original trial, although they did not give expert testimony. The trial judge handed down brief written reasons for that judgment, consisting of only three short paragraphs. The only reason assigned for the substantial increase in the awards made to defendants was that:

“ . . . the Court is of the opinion that the expert testimony of T. J. Stephens (one of the experts who testified for defendants) accurately and truly sets forth the values of the properties taken and all damages resulting from the taking. Accordingly, let there be judgment in favor of the defendants and against the plaintiff for the amounts set forth in the testimony of T. J. Stephens.”

Both parties appealed from that judgment, and it is that appeal which is before us now. My colleagues have decided to reduce by $7,000.00 the amount awarded in the second judgment as the value of one of the items of property taken, and that had the effect of reducing the total award to the sum of $91,190.89. In all other respects, including the awards of expert witness fees, the majority affirms the opinion of the trial court.

I agree with my colleagues in the reduction of the amount awarded for one item of property taken from $13,500.00 to $6,500.00. I cannot agree with them, however, as to several other awards made by the trial court after the second trial, and as to the expert witness fees allowed.

In my opinion, the trial judge assigned excellent reasons for the original judgment which was rendered in this suit. I would affirm all óf the awards made in the first judgment, except an award of $4,000.00 for severance damage to the residence property, because I think the trial judge inadvertently included that award twice in his computations. In my view, the judgment appealed from here should be amended by reducing the total award from $98,190.89 to the sum of $52,250.02, and the amounts allowed as expert witness fees should be reduced as hereinafter shown.

No useful purpose would be served by discussing all of the awards which I think should be changed. Some of them, however, will be discussed.

Since the trial judge assigned no reasons for the awards made after the second trial, other than that he adopted the appraisal made by T. J. Stephens, we must look to the appraisal and testimony of Stephens to find the reasons why the trial court, after the second trial, almost doubled the awards which he originally found should be made.

Stephens, in his appraisal report made to counsel for defendants and thereafter filed in evidence, lists the following as one item of severance damages:

“The taking of the right-of-way leaves 468 acres on the east side of the new highway and 330 acres on the west side making two (2) separate operations. It is the opinion of this appraiser that all the remaining land has been damaged because of this fact by $25.00 per acre on the 798 acres or a total damage this item _$19,950.00”

The trial judge refused to make an award for that item in the first judgment, but he allowed the full $19,500.00 after the remand.

I find nothing in the testimony of Stephens which refers to this item of severance damages, except perhaps in one instance where he was asked whether there was anything in the “construction plans providing for any type of pass through in the bottom land from one side of the new construction to the other side of the new construction.” His answer was: “Not that I could find.”

The evidence shows that on September 10, 1959, defendants voluntarily executed a deed granting to the Department of Highways a right-of-way for construction of a highway across defendants’ property, along the identical route over which the present highway is now being constructed. At the time that right-of-way was acquired, the Department planned to construct a two-lane highway along that route during the early 1960’s. The two-lane highway was not constructed at that time, but by 1972 the Department decided that eventually it would have to construct a four-lane highway along the same route. These proceedings were instituted that year to acquire additional strips of land on each side of the original right-of-way, which would enable the Department to build the wider highway. Actually, following the 1972 taking, the Highway Department began constructing a two-lane highway over that route, and that construction work was being conducted at the time of the first and second trials. The plans, however, are to construct another two-lane thoroughfare later on the new widened right-of-way, thus making it a four-lane highway.

The 1959 right-of-way deed, executed voluntarily by defendants for a cash price and other considerations which they agreed upon, had the effect of severing their land, leaving 478 acres on one side and 320 acres on the other. The farm thus was severed in 1959, long before the 1972 taking occurred. The 1959 deed provided that the Department of Highways would construct fences along each side of the highway, obviously to keep defendants’ cattle from wandering on the highway. A bridge was to be constructed spanning Bayou Pierre on defendants’ property, and the fences were to extend to the bank of that bayou. The deed provided that the “Department shall install a standard driveway gate in the said fences to the right and left of the centerline at Bayou Pierre Bridge to enable to Grantors’ cattle to cross beneath said bridge.”

The trial judge held, and the majority agrees, that the 1959 right-of-way deed is still valid and binding. The Highway Department officials and representatives of the contractor testified that, although the construction work on the highway was still being conducted at the time of both trials, all of those parties were ready and willing at any time to install the gates required by the 1959 right-of-way deed at any locations specified by defendants, or to modify the fences in any way defendants decided to provide the pass-through. Mr. Daniel W. Bradford, Civil Engineer for the Department of Highways, testified at the first trial that he already had entered into the following agreement with defendants:

“I agreed with Mr. Mims to make a tie in to the fence, at the corner of the new bridge, Bayou Pierre bridge, to allow him to use that area under the bridge to move his cattle from one pasture to the other.”

Defendants alleged in their answer that “plaintiff refuses to furnish the defendants with a pass-through for their cattle.” The uncontradicted evidence shows just the opposite. It establishes that defendants not only have been ready and willing at all times to furnish the pass-through, but that they specifically agreed with defendants prior to the first trial to construct the pass-through exactly as defendants wanted it done.

On this appeal defendants concede that the 1959 deed provides for the installation of gates in the fences to allow cattle to go under the bridge from one side of the highway to the other. They argue that they are entitled to severance damages, however, solely because the contract between the Highway Department and the contractor apparently contains no specific provision for the installation of those gates.

I find no merit at all to that argument. The Highway Department is bound by the 1959 agreement to install the gates, and it is ready and willing to do so at the places defendants want them installed. It is immaterial whether the Department has the present contractor perform that installation, or whether it has someone else do the work. The fact is that upon completion of the highway and bridge defendants will have the gates, or the pass-through, for their cattle exactly as they agreed upon in 1959. Their cattle raising operations thus will not be divided after the present construction has been completed. They at least will not be divided any more after that time than they would have been divided had the two-lane highway been built in the 1960’s, as defendant agreed to when they executed the 1959 right-of-way deed.

If the majority feels that the Highway Department actually will not install the gates specified in the 1959 agreement, a conclusion which I think is totally unjustified, then instead of awarding $19,950.00 as severance damages, it seems to me that it would be more appropriate to simply order plaintiff to install the gates or to award defendants the cost of having them installed.

In any event, I cannot agree with the trial judge in the award of the above amount as severance damages, or with the decision of my colleagues to affirm such an award.

Mr. Stephens considered one item of property being taken, identified as Tract 2-3, to be homesite property, and he appraised it at $4,138.50. The trial judge, after the first trial, reduced the value of that tract to $787.50, assigning the following reasons for that reduction:

“After viewing the property itself, the Court is of the opinion that the property was too remote from the original highway at the time of the taking to be considered as possible homesites and too much dirt work would have to be done to prepare for residences. The Court is of the opinion that $350.00 per acre would be a fair and just compensation, and awards $787.50.”

The district judge, without any additional evidence and without assigning reasons, increased the award to $4,138.50 after the second trial. I believe the judge was correct in the reasons which he assigned for the first judgment, and that the award should be reduced to $787.50.

Another item of property taken, identified as Tract 2-5, was appraised by Mr. Stephens at $2,300.00. The trial court reduced that award to $595.00, assigning as reasons therefor that “the court disagrees with Mr. Stephens that it would make a good homesite.” After the second trial, and without assigning reasons, the trial judge increased the award to $2,300.00. I think he was correct originally, that he erred in later awarding the higher amount, and that the majority also erred in affirming the last award.

In the first judgment rendered by the trial judge, the following expert witness fees were allowed to the three appraisers who testified in behalf of defendants:

Sam LaCaze, Jr. $1,665.00
T. J. Stephens 1,855.00
Henry Bernard 565.00

After the second trial, judgment was rendered allowing the following expert witness fees:

Sam LaCaze, Jr. $1,848.50
T. J. Stephens 2,060.00
Henry Bernard 665.00
Harry Friedman, Jr. 200.00
Rex Fair 400.00
James Davis 486.00

The three expert appraisers called by defendants did not give any additional expert testimony at the second trial, and I cannot agree with the trial court or with the majority that their fees should be increased substantially, simply because they appeared at the second hearing, apparently for the sole purpose of presenting another bill.

I also cannot concur in the allowance of expert witness fees to the other three witnesses, Friedman, Fair and Davis, since none of them gave expert testimony at the original trial or at the second trial. They were called at the second trial solely to be qualified and recognized as experts, and to submit a bill for their testimony in both trials. I will not agree to the allowance of expert witness fees under those circumstances.

I would reduce the expert witness fees allowed to LaCaze, Stephens and Bernard to the amounts which were specified in the first decree, and I would reverse that part of the judgment appealed from which allows any such fees to Friedman, Fair and Davis.

For these reasons, I respectfully dissent.

ON APPLICATION FOR REHEARING

MILLER, Judge.

As one of their reasons for requesting a rehearing, the Department of Highways refers to Article V, § 8(B) of the Louisiana Constitution of 1974, which provides in part:

However, when a judgment of a district court is to be modified or reversed and one judge dissents, the case shall be re-argued before a panel of at least five judges prior to a rendition of judgment, and a majority must concur to render judgment. (Emphasis added.)

We read the constitutional provision to require a five-judge panel when a district court judgment is to be modified or reversed and one judge dissents from the modification. In this case there is no dissent from the modification; the dissent agrees to the modification but would further modify the trial court’s award.

The quoted portion of Art. V, § 8(B) is intended to give emphasis to trial court decisions in cases where two court of appeal judges differ with the trial court decision and the third appellate judge cannot agree to reverse or to modify the trial court judgment to the extent ordered by the majority. See C.C. 73 Verbatim Transcripts, Volume IX, p. 58, where the author of this constitutional provision explained the amendment; the five-judge panel is to apply when one judge dissents “and says you have done the wrong thing by reversing this district judge.”

This is not the case before us. The dissent does not say the majority is wrong in modifying the district court judgment. It says the majority is wrong in not further modifying the trial court judgment.

The two-judge majority modified the trial court judgment by reducing the amount awarded to the Mims from $98,-190.89 to $91,190.89, a total reduction of $7,000. The dissenting judge agreed to that modification but would further reduce the trial court judgment by an additional $38,940.87. Therefore, all three judges on the appellate panel having agreed to modify the trial court judgment, with the dissenting judge voting to further modify that judgment. We do not believe the constitutional provision requires a five-judge panel for a case such as this, where a three-judge panel agrees to modify the trial court judgment to the extent set by the majority.

This case presents a situation analogous to Brown v. Employers Commercial Union Insurance Company, 316 So.2d 194 (La.App. 4 Cir. 1975), writ denied without reference to Art. V, § 8(B), 320 So.2d 204. In the Brown case, a majority of a panel of three modified the trial court judgment by reducing quantum; the dissenting opinion, in effect, agreed to that modification, for it would have reversed the trial court on the issue of liability and awarded nothing. The court of appeal addressed the issue of the applicability of Art. V, § 8(B), determining that this provision does not apply to a case in which none of the original appellate panel desires to have the trial court judgment affirmed. See 316 So.2d 194 at 198, footnote 4. The Supreme Court’s denial of the writ, 320 So.2d 204, indicates approval of the rationale here expressed.

Finding no contrary guidelines, we refuse the request to allow a reargument to a panel of five judges.

HOOD, J.,

concurs in the refusal to allow a reargument before a panel of five judges, but feels that the application of plaintiff, State of Louisiana, for a rehearing should be granted.


source: Caselaw Access Project

author: STOULIG, Judge. BOUTALL, Judge, BOUTALL, Judge. BOUTALL, Judge. STOULIG and MORIAL, Judges

license: Public Domain

text:
    Dr. Herbert Ray EVERS v. LOUISIANA STATE BOARD OF MEDICAL EXAMINERS.
    Nth 7249.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 10, 1976.
    On Application for Rehearing March 16, 1976.
    On Rehearing June 30, 1976.
    Writ Refused Oct. 1, 1976.

      Deutsch, Kerrigan & Stiles, Francis G. Weller, Russell L. Dornier, New Orleans, for plaintiff-appellant.
    Adams & Reese, Thomas J. Wyllie, New Orleans, for defendant-appellee.
    Before REDMANN, STOULIG, BOU-TALL, MORIAL and BEER, JJ.
   STOULIG, Judge.

This appeal places at issue only the procedural aspects of the case in the trial court. It does not concern itself with the merits of the administrative findings on Dr. Evers’ right to practice medicine.

Plaintiff, Dr. Charles Ray Evers, was enjoined by a judgment of the Civil District Court for the Parish of Orleans from practicing medicine in this State pending his appeal from a decision of the Louisiana State Board of Medical Examiners (Board) rejecting his application for a license to practice. After the trial court had ordered the hearing reopened for the adducing of additional evidence by appellant, the Board instituted a reconventional demand for a temporary restraining order and injunctive relief against Dr. Evers in the same proceeding which he initially instituted in the district court. Exceptions to the jurisdiction and lack of venue of the court and of the Board’s improper cumulation of action were leveled against the re-conventional demand. In due course judgment was rendered overruling these exceptions and issuing a preliminary injunction against Dr. Evers. This appeal resulted.

We reverse. On December 2, 1974, Dr. Evers filed a petition in the Civil District Court for the Parish of Orleans seeking a review of the Board’s administrative decision to deny his application for a license. In connection with his appeal he requested that the enforcement of the Board’s decision be' stayed and a preliminary injunction •issue to prevent it from interfering with his right to continue to practice under his temporary license pending a final review of the Board’s decision.

Under LSA-R.S. 49:964(A) of the administrative procedure statute a person aggrieved by a decision of the Board is entitled to a judicial review. Section B provides the appeal must be lodged in the district court of the parish where the agency is located. Section C grants the district court judge discretion to stay execution of the agency’s decision if he deems it proper.

At all times the district court functions as an appellant tribunal with the additional power to stay execution of the agency’s decision. The right of appeal is unilateral because obviously the Board would never be in a position to challenge by appeal its own administrative decision. In filing the appeal Dr. Evers did not waive his right to object to the lack of venue should the Board seek, by direct action, to enjoin him from practicing during the pendency of his appeal.

A reconventional demand presupposes the defendant-reconvenor was cited to answer a complaint in a court of original jurisdiction, and in response, filed a cross claim. Because the Civil District Court only has appellate jurisdiction of this matter and the Board has no standing to request any form of relief under LSA-R.S. 49:964, it may not proceed by recon-ventional demand. A reconventional demand will only lie in an original action and cannot be filed in an appellate proceeding before a district court any more than it can be filed in this court. ,

This is not to suggest the Board may not seek an injunction. In fact it is specifically authorized to do so in similar circumstances under LSA-R.S. 37:1286; however it must comply with the procedural requisites of LSA-C.C.P. art. 3601 (proceed by petition) and LSA-C.C.P. art. 42(1) (filed at the domicile of the defendant) in the absence of a statutory provision authorizing a different procedure. Dr. Evers has his domicile and practices medicine in Plaquemines Parish and any action seeking to enjoin this activity must be instituted in the district court of that parish.

For the reasons assigned the judgment appealed from is annulled and appellant’s exception to the jurisdiction, lack of venue, and improper cumulation of actions is maintained. This matter is remanded for further proceedings consistent with the views expressed herein, costs to await the final disposition of the case.

Annulled and remanded.

BOUTALL, Judge,

with whom RED-MANN, Judge, joins (dissenting).

From an adverse decision of the Louisiana State Board of Medical Examiners refusing to grant him a license to practice medicine, Dr. Herbert Ray Evers sought judicial review of the Civil District Court for the Parish of Orleans asking the Court to reverse and set aside the decision of the Board and order the Board to issue petitioner a permanent license to practice medicine in Louisiana. Ancillary to that petition Dr. Evers prayed for a rule nisi to stay enforcement of the Board’s decision, and for the issuance of a preliminary injunction enjoining the Board from interfering with or in any way preventing petitioner from engaging in the practice of medicine pending final review of the Board’s decision. After a hearing on the rule nisi, the Court denied the stay order and refused to issue a preliminary injunction. Thereafter the Board filed a petition entitled “Reconventional Demand For a Temporary Restraining Order, Preliminary Injunction, and Permanent Injunction” in which it sought the issuance of a rule nisi for a preliminary injunction “enjoining Dr. Evers from practicing medicine in the State of Louisiana during the pendency of this appeal”. It also sought a permanent injunction to the same effect in the event the administrative decision of the Board was affirmed.

To the Board’s rule nisi, Dr. Evers filed declinatory exceptions of improper venue and lack of jurisdiction over the person of defendant, and dilatory exception of improper cumulation of actions. On the hearing of the rule, the court overruled these exceptions and granted a preliminary injunction restraining Dr. Evers from practicing medicine in the State of Louisiana until the appeal pending is completed or until further orders of the Court. It is from this hearing and these judgments that this appeal is taken by Dr. Evers.

The majority opinion in this case reverses the judgments appealed from, and I respectfully dissent, being of the opinion that the rulings of the trial judge were correct. The appellant urges to us that an injunc-tive demand for relief by the Board is not permissible as a reconventional demand because his own rule nisi for a preliminary injunction had previously been dismissed, and because the Court, acting as an appellate court, has no authority to entertain the request of the Board or grant the relief sought. The majority opinion would limit the Court’s authority to stay execution of the Board’s decision only when sought by the person aggrieved by its decision. Additionally it points out that a reconventional demand will only lie in an original action and cannot be filed in an appellate proceeding. If the matter appealed from is considered as pertaining to the District Court’s adjudication of the matter under review on the merits, there would seem to be a better basis for that result. However the issue before us is on a rule nisi for a writ of preliminary injunction and the scope of that writ is to enjoin only during the pendency of these proceedings until a final adjudication can be made. Whether the preliminary injunction be sought as an ancillary in a proceeding entitled “Recon-ventional Demand” or whether it be sought independently, I conclude that the District Court has the authority to entertain a proceeding for this preliminary relief.

First, the proceeding before the District Court, although labeled an appeal, is an exercise of judicial review, and differs in scope and authority from the ordinary appeal taken from trial courts to our appellate courts. I refer to the case of Bowen v. Doyal, 259 La. 839, 253 So.2d 200 (1971). In that case the Supreme Court considered at length the composition of the right of judicial review from administrative bodies and stated that the review by the District Court of the administrative determination was not a judicial appeal, but rather an invocation of original judicial jurisdiction. That Court held, at 253 So.2d 206, the following:

“We hold that when the district courts of this state review the determinations, rulings, and adjudications of administrative bodies, they exercise their exclusive original jurisdiction. * * * ”

Courts in Louisiana are constitutionally granted the power to issue such needful writs, orders and process in aid of the jurisdiction of the Court as may be necessary. Constitution of 1974, Article 5 §§ 1 and 2. See also Louisiana Constitution of 1921, Article 7 §§ 2, 3, 5, 81 and 83. This Constitutional grant of authority, I believe, is broad enough to permit the District Court in this case to consider the question of enjoining the applicant for a license from practicing medicine before the issuance of that license, during his appeal from denial of license.

Secondly, I am of the opinion that the statutory law grants such authority in this particular case. Louisiana has generally provided for the rules of administrative procedure in Chapter 13 of Title 49, Louisiana Revised Statutes. LRS 49:961 (A) provides that the provisions of this chapter concerning adjudication shall apply when the grant, denial or renewal of a license is required to be preceded by notice and opportunity for hearing. Section 964 provides generally for the judicial review of such an adjudication, and is the mode of procedure instituted in the District Court. There can be no question of the Board’s authority to seek in any competent court a writ of injunction by summary proceedings. LRS 37:1286. The question now becomes limited to the competency of the court a quo. The court has jurisdiction over the issuance of the license and the parties before it contesting the issuance. In addition to the constitutional authority above noted, in this case the answer lies in a consideration of LRS 37:1277 and LRS 49:961(B).

The record in this case shows that Dr. Evers was issued a temporary permit under the provisions of LRS 37:1277 (A) which provides that such a temporary permit shall not continue in force longer than until the next regular meeting of the Board. It further appears that Dr. Evers was denied his application for a permanent license based in part upon his activities after the next regular Board meeting. When we refer to the administrative procedure laws, we note LRS 49:961(B) which states as follows:

“B. When a licensee has made timely and sufficient application for the renewal of a license or a new license with reference to any activity of a continuing nature, the existing license shall not expire until the application has been finally determined by the agency, and, in case the application is denied or the terms of the new license limited, until the last day for seeking review of the agency order or a later date fixed by order of the reviewing court.”

I view this section to mean that the reviewing District Court has authority to determine the effective date for the expiration of the temporary license to practice, and in connection therewith, either prohibit the applicant to continue practice, or to permit him to continue practice during the pendency of the review proceedings. This provision of the law differs from the provisions of LRS 49:964(C), which provides for a stay of enforcement of the agency decision. It should be noted that the decision of the agency or Board in this case was simply that the Board “refuses to issue a license to practice medicine in the State of Louisiana to Dr. Herbert Ray Ev-ers, M.D.” From such a decision, a stay of enforcement is in effect of no practical value, for there is nothing to stay. On the other hand, the determination of the effective date of the expiration of the temporary license permits the applicant to continue to practice or not.

For the reasons above stated I am of the opinion that the District Court did have authority to consider the Board’s application for a preliminary injunction, and there seems to be no defense offered to the basis upon which it was rendered. The appellant herein in fact relies upon the correctness of his exceptions. The above reasons are dispositive of his exception of improper cumulation of actions, and there remains to be considered the exceptions of venue and lack of jurisdiction over the person. The crux of this exception is that Dr. Evers is asserted to be a resident or domiciliary of Plaquemines Parish and the proceedings appealed from take place in the Civil District Court for the Parish of Orleans. The administrative procedural law requires a person seeking review of an administrative decision to present his petition to the District Court in which the administrative agency is located. The Board of Medical Examiners is domiciled in the Parish of Orleans. A proceeding for injunction brought under the provisions of LRS 37:1286 is required to be brought in the parish of domicile generally, under the ordinary rules of venue. However, the Civil District Court for the Parish of Orleans is the proper court to entertain the petition for review, and as discussed above, this rule nisi for an injunction pen-dente lite is an ancillary to those proceedings and is in aid of the court’s jurisdiction. For these reasons, the ordinary rule of venue does not apply and the reviewing court properly exercises authority over the petitioner for judicial review for matters pertaining thereto.

Accordingly, I would affirm the judgment appealed from and I respectfully dissent.

ON APPLICATION FOR REHEARING

BOUTALL, Judge.

Defendant-appellee applied for a rehearing on February 25, 1976 urging the court to reconsider its decision of February 10, 1976.

We grant a rehearing before this same panel and direct counsel for both parties to file such additional briefs as they think necessary, no later than April 1, 1976. Thereafter the court shall reconsider the matter on the present record and such additional briefs as may be filed and will render its opinion without the necessity of additional oral argument.

REHEARING GRANTED.

STOULIG and MORIAL, JJ., refusing.

JUDGMENT ON REHEARING

BOUTALL, Judge.

This appeal places at issue only the procedural aspects of the case in the trial court. It does not concern itself with the merits of the administrative findings on Dr. Evers’ right to practice medicine.

From an adverse decision of the Louisiana State Board of Medical Examiners refusing to grant him a license to practice medicine, Dr. Herbert Ray Evers sought judicial review of the Civil District Court for the Parish of Orleans asking the Court to reverse and set aside the decision of the Board and order the Board to issue petitioner a permanent license to practice medicine in Louisiana. Ancillary to that petition Dr. Evers prayed for a rule nisi to stay enforcement of the Board’s decision, and for the issuance of a preliminary injunction enjoining the Board from interfering with or in any way preventing petitioner from engaging in the practice of medicine pending final review of the Board’s decision. After a hearing on the rule nisi, the Court denied the stay order and refused to issue a preliminary injunction. Thereafter the Board filed a petition entitled “Reconventional Demand For a Temporary Restraining Order, Preliminary Injunction, and Permanent Injunction” in which it sought the issuance of a rule nisi for a preliminary injunction “enjoining Dr. Evers from practicing medicine in the State of Louisiana during the pen-dency of this appeal”. It also sought a permanent injunction to the same effect in the event the administrative decision of the Board was affirmed.

To the Board’s rule nisi, Dr. Evers filed declinatory exceptions of improper venue and lack of jurisdiction over the person of defendant, and dilatory exception of improper cumulation of actions. On the hearing of the rule, the court overruled these exceptions and granted a preliminary injunction restraining Dr. Evers from practicing medicine in the State of Louisiana until the appeal pending is completed or until further orders of the Court. It is from this hearing and these judgments that this appeal is taken by Dr. Evers.

The appellant urges to us that an injunc-tive demand for relief by the Board is not permissible as a reconventional demand because his own rule nisi for a preliminary injunction had previously been dismissed, and because the Court, acting as an appellate court, has no authority to entertain the request of the Board or grant the relief sought.

At the outset, we note that the issue before us is on a rule nisi for a writ of preliminary injunction and the scope of that writ is to enjoin only during the pen-dency of these proceedings until a final adjudication can be made. Whether the preliminary injunction be sought as an ancillary in a proceeding entitled “Reconven-tional Demand” or whether it be sought independently, we conclude that the District Court has the authority to entertain a proceeding for this preliminary relief.

First, the proceeding before the District Court, although labeled an appeal, is an exercise of judicial review, and differs in scope and authority from the ordinary appeal taken from trial courts to our appellate courts. The case of Bowen v. Doyal, 259 La. 839, 253 So.2d 200 (1971) is dispositive of this point. In that case the Supreme Court considered at length the composition of the right of judicial review from administrative bodies and stated that the review by the Disrtict Court of the administrative determination was not a judicial appeal, but rather an invocation of original judicial jurisdiction. That Court held, at 253 So.2d 206, the following:

“We hold that when the district courts of this state review the determinations, rulings, and adjudications of administrative bodies, they exercise their exclusive original jurisdiction. * * * ”

Courts in Louisiana are constitutionally granted the power to issue such needful writs, orders and process in aid of the jurisdiction of the Court as may be necessary. Constitution of 1974, Article 5 §§ 1 and 2. See also Louisiana Constitution of 1921, Article 7 §§ 2, 3, 5, 81 and 83. This Constitutional grant of authority is broad enough to permit the District Court in this case to consider the question of enjoining the applicant for a license from practicing medicine before the issuance of that license, during his appeal from denial of license.

Secondly, the statutory law grants such authority in this particular case. Louisiana has generally provided for the rules of administrative procedure in Chapter 13 of Title 49, Louisiana Revised Statutes. LRS 49:961 (A) provides that the provisions of this chapter concerning adjudication shall apply when the grant, denial or renewal of a license is required to be preceded by notice and opportunity for hearing. Section 964 provides generally for the judicial review of such an adjudication, and is the mode of procedure instituted in the District Court. There can be no question of the Board’s authority to seek in any competent court a writ of injunction by summary proceedings. LRS 37:1286. Thus, the district court has jurisdiction over the issuance of the license and the parties before it contesting the issuance. The question now becomes limited to the competency of the Court a quo. In addition to the constitutional authority above noted, in this case the answer lies in a consideration of LRS 37:1277 and LRS 49:961(B).

The record in this case shows that Dr. Evers was issued a temporary permit under the provisions of LRS 37:1277(A) which provides that such a temporary permit shall not continue in force longer than until the next regular meeting of the Board. It further appears that Dr. Evers was denied his application for a permanent license based in part upon his activities after the next regular Board meeting. When we refer to the administrative procedure laws, we note LRS 49:961(B) which states as follows:

“B. When a licensee has made timely and sufficient application for the renewal of a license or a “new license with reference to any activity of a continuing nature, the existing license shall not expire until the application has been finally determined by the agency, and, in case the application is denied or the terms of the new license limited, until the last day for seeking review of the agency order or a later date fixed by order of the reviewing court.”

The import of this section is that the reviewing District Court has authority to determine the effective date for the expiration of the temporary license to practice, and in connection therewith, either prohibit the applicant to continue practice, or to permit him to continue practice during the pendency of the review proceedings. This provision of the law differs from the provisions of LRS 49:964(C), which provides for a stay of enforcement of the agency decision. It should be noted that the decision of the agency or Board in this case was simply that the Board “refuses to' issue a license to practice medicine in the State of Louisiana to Dr. Herbert Ray Evers, M.D.” From such a decision, a stay of enforcement is in effect of no practical value, for there is nothing to stay. On the other hand, the determination of the effective date of the expiration of the temporary licenes permits the applicant to continue to practice or not.

For the reasons above stated we conclude that the District Court did have authority to consider the Board’s application for a preliminary injunction, and there seems to be no defense offered to the basis upon which it was rendered. The appellant herein in fact relies upon the correctness of his exceptions. The above reasons are dis-positive of his exception of improper cumu-lation of actions, and there remains to be considered the exceptions of venue and lack of jurisdiction over the person.

The crux of these exceptions is that Dr. Evers is asserted to be a resident or domiciliary of Plaquemines Parish and the proceedings appealed from take place in the Civil District Court for the Parish of Orleans. The administrative procedural law requires a person seeking review of an administrative decision to present his petition to the District Court in which the administrative agency is located. The Board of Medical Examiners is domiciled in the Parish of Orleans, and accordingly Evers was compelled to bring his petition for review in Orleans Parish. However, a proceeding for injunction brought under the provisions of LRS 37:1286 is ordinarily required to be brought in the Parish of domicile of the practitioner under the ordinary rules of venue.

The Civil District Court for the Parish of Orleans is the proper court, both in venue and jurisdiction, to entertain the petition for review, and as discussed above, this rule nisi for an injunction pendente lite is an ancillary to those proceedings and is in aid of the court’s jurisdiction. Having brought his petition to that court, the petitioner is now subject to its jurisdiction. The ordinary rule of venue does not apply and the reviewing court properly exercises authority over the petitioner for judicial review for matters pertaining thereto'.

Accordingly, the judgments appealed from, overruling the exception and issuing a preliminary writ of injunction, are affirmed. Assessment of costs of this appeal shall await a final determination of the merits of the case.

AFFIRMED.

STOULIG and MORIAL, Judges

(dissenting).

We respectfully dissent for the reasons stated in the original majority opinion.

      . The Louisiana State Board of Medical Examiners falls within the definition of an “agency” as defined in § 951 (2).

      . The Medical Board is .located in the City of New Orleans (LSA-R.S. 37:1265) and the appeal falls within the jurisdiction of the Civil District Court for the Parish of Orleans.


author: JONES, Judge. PER CURIAM.

text:
    Pearl J. BRISTOW, Plaintiff-Appellant, v. John H. MESSER and Celestine Messer, Defendants-Appellees.
    No. 12944.
    Court of Appeal of Louisiana, Second Circuit.
    July 7, 1976.
    En Banc. Rehearing Denied Aug. 3, 1976.

      Hal V. Lyons, James L. Fortson, Jr., Shreveport, for plaintiff-appellant.
    Ford E. Stinson, Benton, for defendants-appellees.
    Before PRICE, HALL and JONES, JJ.
   JONES, Judge.

Plaintiff, Pearl J. Bristow, sued defendants, John H. and Celestine Messer, for damages arising out of an alleged malicious prosecution of plaintiff by defendants. Defendants answered in the nature of a general denial and reconvened for damages allegedly suffered as a result of plaintiff’s suit.

Plaintiff and defendants are next door neighbors. There had been friction between them for some time previous to the incident out of which this law suit arises. The police had been summoned by defendants on two prior occasions. One incident involved limbs allegedly placed by plaintiff at least partially in defendants’ driveway. The second altercation occurred when plaintiff attempted to remove a part of defendants’ hedge during a rainstorm to allow better drainage. Apparently the investigating officer on those occasions did not talk with plaintiff personally.

The third occasion and the one which precipitated this law suit, was July 10, 1975. Although there is some dispute as to what plaintiff actually did, it appears she kicked or pitched defendants’ garbage can into defendants’ driveway. The Messers then called the police who came to defendants’ home to investigate. Mrs. Messer related the details of the incident to the officers.

The evidence reveals that the officers told the Messers that no action would be taken against plaintiff unless defendants signed a formal complaint. Upon Mr. Messer agreeing to sign the required affidavit, the officers arrested plaintiff. About 20 or 30 minutes after the arrest, Mr. Messer signed the affidavit at the police station. He testified that when he signed the affidavit, it had not been filled out by the officers who told Messer they would supply the necessary information. Messer testified that when the officers went to plaintiff’s house, he did not know they were going to arrest her but thought they were merely going to talk to her.

Plaintiff was subsequently tried on a charge of criminal mischief and was acquitted on a motion for directed verdict. Unfortunately the arrest had been reported in the Bossier weekly newspaper in the Fuzz Buzz. Plaintiff was required to attend court on several occasions before the criminal charges were finally resolved in her favor. She was unquestionably embarrassed and humiliated by the whole affair.

On a finding that defendants acted without malice, and with reservations about whether there was a lack of probable cause, the trial court granted judgment in favor of defendants rejecting the demands of plaintiff. Defendants’ reconventional demands were also rejected. Costs were assessed half to plaintiff and half to defendants. Plaintiff appeals. We affirm the judgment of the lower court.

Louisiana jurisprudence has defined the elements of a successful civil action for malicious prosecution. The Supreme Court in Robinson v. Goudchaux’s, 307 So.2d 287 (1975) approved the following statement with respect to such actions:

“ ‘An action for maliciously putting the law in motion lies in all cases where there is a concurrence of the following elements: (1) The commencement or continuance of an original criminal or civil judicial proceeding. (2) Its legal causation by the present defendant against plaintiff who was defendant in the original proceeding. (3) Its bona fide termination in favor of the present plaintiff. (4) The absence of probable cause for such proceeding. (5) The presence of malice therein. (6) Damage conforming to legal standards resulting to plaintiff.’ ” Id. at page 289.

Plaintiff proved the first three elements. The question before this court is whether defendants acted without probable cause and with malice in instituting the proceedings against plaintiff.

The existence of probable cause in any case depends upon the particular facts of that case. Probable cause does not depend merely upon the actual existence of particular facts, but upon the defendant’s honest belief of the facts in making the charge against the plaintiff. Malice exists where the charge is made with knowledge that it is false or with reckless disregard for whether it is false or not. See Whittington v. Gibson Discount Center, 296 So.2d 375 (La.App. 2d Cir. 1974).

After personally observing plaintiff pitch or kick defendants’ trash cans, and with the knowledge of the strained relations previous to this incident, Mrs. Messer sought the assistance of the police officers. After questioning plaintiff, the police officers, apparently without making their intentions absolutely clear to the Messers, went next door and arrested plaintiff. Messer signed the affidavit only after being told that no future action with respect to these disputes would be taken if he refused to sign. While it is true the affidavit was blank at the time he signed it, it was not unreasonable for him to believe the officers would complete it in accordance with the facts which he had related to them.

While it is difficult to envison plaintiff’s actions as being criminal, in light of past difficulties between defendants and plaintiff, it was not totally unreasonable for defendants to resort to the police. This case is distinguishable from the situation presented when one makes a charge of actions that are themselves a specific crime, for example, theft. In the instant situation, certain facts existed or, at least, were honestly felt to exist by defendants. These facts were conveyed to the police officers who themselves, apparently without any further encouragement from the defendants, supplied the specific charge. Defendants acted in good faith under the guidance of law enforcement officials.

While we cannot condone the needless exposure of citizens to the harshness of the criminal process for such venial indiscretions as committed by plaintiff, we recognize that resort to law enforcement officials can not be inordinately curtailed for fear that the alternatives chosen by the parties would be even more undesirable. The answer, of course, lies with the investigating officer’s more prudent application of his broad discretion. Under the facts presented in this case, defendants acted with probable cause, in good faith, and without malice.

Although defendants complain that the trial court improperly assessed half the costs to them, they neither answered plaintiff’s appeal nor took their own appeal. The judgment of the trial court is, therefore, final as to them.

For the foregoing reasons, the judgment of the lower court is affirmed.

The costs of this appeal are assessed to plaintiff.

Affirmed.

ON APPLICATION FOR REHEARING

Before BOLIN, PRICE, HALL, MARVIN and JONES, JJ.

PER CURIAM.

Defendants show in an application for rehearing that we incorrectly stated that defendants did not answer plaintiff’s appeal. Defendants contend that we should, therefore, grant rehearing and reverse the lower court’s assessment of one-half costs below to defendants.

Defendants reconvened below against the plaintiff. The reconventional demand was rejected. We find no error in this respect nor in the assessment of costs below. The application for rehearing is denied.


author: DOMENGEAUX, Judge. MILLER, Judge

text:
    Joseph E. DANGLER, Plaintiff and Appellee, v. FIREMAN’S FUND INSURANCE COMPANY, Defendant and Appellant.
    No. 5518.
    Court of Appeal of Louisiana, Third Circuit.
    July 22, 1976.
    Rehearing Denied Aug. 26, 1976.
    Davidson, Meaux, Onebane & Donohoe, by L. Lane Roy, Lafayette, for defendant-appellant.
    Fontenot & Mitchell, by Guy O. Mitchell, III, Ville Platt, for plaintiff-appellee.
    Before MILLER, DOMENGEAUX, and PAVY, JJ.
   DOMENGEAUX, Judge.

Defendant, Fireman’s Fund Insurance Company, the workmen’s compensation insurer of plaintiff, Joseph E. Dangler’s employer, appeals the judgment refusing to order Dangler to submit to a second surgical procedure on the middle finger of his right hand. Dangler is currently receiving workmen’s compensation benefits, and it is agreed that he is disabled within the in-tendment of the compensation law in view of the present condition of his finger.

The sole issue is whether Dangler should be ordered to undergo a second surgical procedure as a condition for continuation of workmen’s compensation benefits.

Dangler was injured on June 25, 1974, in the course and scope of his employment as a tire re-capper. A large tire rim fell and injured, among other things not here relevant, the middle finger of his right hand. He was treated by Dr. Laudislas Lazaro, III, an orthopedic surgeon and, in time, enthusiastically submitted to a fusion operation to repair the joint to the distal phalanx of the injured finger. The operation was unsuccessful and Doctor Lazaro recommended a second fusion type operation, this one involving a bone graft. Fireman’s Fund tendered the operation, and Dangler refused. Plaintiff was then examined by Dr. Rodney E. Landreneau, Jr., a general surgeon, who recommended against a second fusion and suggested instead that the finger joint be amputated.

The trial was held on July 29, 1975, at which time certain stipulations were entered into, and the only oral testimony taken was that of the plaintiff. Doctor Lazaro’s deposition, which had been taken on June 3, 1975, was submitted, and the case was left open for the taking of the deposition of Doctor Landreneau, which took place on September 16, 1975. It is evident from the record that the parties and their attorneys as well as the trial judge were cognizant of Doctor Landreneau’s medical conclusions and recommendation of amputation even though same had not yet been reduced to writing by deposition at the time of trial.

On October 31, 1975, the trial judge issued the following reasons for judgment:

“The matter of whether or not plaintiff should undergo surgery for fusion of the distal joint and the two distal phalanges of the middle finger of plaintiff’s right hand has been submitted to the Court on the depositions of Dr. Lazaro, an orthopaedic surgeon and Dr. Rodney Landreneau, who is a general surgeon.
The depositions show that an attempt by Dr. Lazaro to fuse the joints of the finger in a first operation were unsuccessful. The deposition of Dr. Lazaro reveals that success could not be guaranteed on the second surgery.
The deposition of Dr. Rodney Landre-neau indicates that he is of the opinion that there would be no more than 50% chance of successful surgery on an attempted second fusion, and that a great deal of pain would be involved in the operation. Dr. Landreneau is of the opinion that the most reasonable thing to do would be to amputate plaintiff’s finger.
Certainly the Court will not order an amputation of this finger. Further, because of the inclusiveness [sic] of the results of a second surgery, and the incident pain thereto, and because of plaintiff’s strong reluctance, you might say adamant refusal, to undergo the surgery, the Court is not prone to order same.
Accordingly, the request for an order to plaintiff to undergo surgery is denied.”

In the case of Bass v. Service Pipe Trucking Company, Inc., 289 So.2d 78 (La.1974), the Supreme Court set out the general criteria as to whether an employee’s refusal to submit to surgery is reasonable as follows:

“ T. Can it be reasonably assumed that the operation will relieve the sitúation and permit the claimant to resume the type of work he was performing at the time of the accident?
‘2. Will the operation submit the claimant to a minimum of danger and be in no sense dangerous to his life or be attended by no unusual risks and is it attended with but slight pain ?
‘3. Is there no serious disagreement among the surgeons as to the necessity for the operation or the type of operation to be performed, and the probability that the disability will be cured without recurrence ?’ ”

The record as made up in this case shows a disagreement between the two physicians as to the type of operation to be performed, and therefore is non-conforming to the third criteria of Bass, supra.

Doctor Lazaro, based on his previous experience with and knowledge of the type fusion which he performed on plaintiff, indicated that a fusion enjoys about a 95 per cent success rate, but he had no ready explanation for its non-success in this case. He admitted that the possibility of failure in the second operation is at least as great as in the first. The physician considered the fusion to be a major operation, but of course not as serious as a back operation, for example.

Doctor Landreneau recommended against a second fusion, opining that a second attempt would submit plaintiff to unnecessary suffering and believed that the possibilities of success on a second fusion would be no greater than 50 per cent. Instead, this surgeon suggested that the joint be amputated requiring the removal of approximately one and one-half inches of the end of the finger. The operation would take the fingernail, the last or furthest bone of the finger, and the joint itself. The procedure would actually go beyond the joint in order to remove the cartilage.

We see then that Doctor Landreneau disapproved of a second fusion and recommended an amputation. Doctor Lazaro recommended a second fusion, but was not questioned about an amputation. The sequence in which the two physicians testified by deposition as set out above, may indicate the reason why Doctor Lazaro expressed no opinion concerning an amputation. But as also set out above, Doctor Landreneaü’s recommendation of an amputation was known at the time of trial. We might say that if Doctor Lazaro had preferred the amputation, he would have recommended it instead of a second fusion. We might also say that his recommendation of the fusion is a tacit disapproval of the amputation, or at least a relegation of it to a second preference. But we cannot afford ourselves the luxury of speculation. We can only consider what is contained in the record. Such being the case, we cannot presume that Doctor Lazaro would have agreed to an amputation any more than we can presume that he would have disapproved of that procedure.

We therefore conclude that plaintiff’s refusal to submit to a second surgical procedure is reasonable based upon a serious disagreement between the surgeons as to the type of operation to be performed.

For the above and foregoing reasons the judgment of the trial court is affirmed, at appellant’s costs.

AFFIRMED.

PAVY, J., concurs in the result.

MILLER, J., dissents and assigns written reasons.

MILLER, Judge

(dissenting).

I respectfully dissent. The majority has failed to mention or consider the fact that it is Dangler’s own surgeon, his own witness, who has testified without contradiction that the distal phalanx of Dangler’s index finger should be amputated. And the majority does not mention or consider the cases of Hamilton v. New Amsterdam Casualty Company, 208 So.2d 158 (La.App. 4 Cir.1968); Duplechien v. States Exploration Company, 94 So.2d 460 (La.App. 1 Cir.1957); and Leday v. Lake Charles Pipe & Supply Company, 185 So. 655 (La.App. 1 Cir.1939). These cases required the claimant to submit to similar surgeries or forfeit continuation of compensation benefits.

While the majority acknowledged there was no medical evidence questioning the recommended amputation, they failed to grasp the significance of the fact that Doctor Landreneau was claimant’s physician who testified as his witness. Plaintiff did not plead surprise and he is bound by Doctor Landreneau’s testimony.

Did Doctor Landreneau recommend amputation of the entire finger, as indicated by the trial judge’s quoted written reasons and by plaintiff when he stated the basis for his reluctance to submit to the amputation? Tr. 108, 9. The answer is indisputably no, and there is nothing in this record to suggest the contrary. There is manifest error in the trial court’s failure to consider the actual testimony of Dangler’s surgeon, Doctor Landreneau.

There is no medical testimony to indicate the surgery recommended by Doctor Lan-dreneau should not be accepted by Dangler. Dangler would lose only the fingernail and the last phalanx of the finger. Doctor Landreneau testified that he has performed 100 to 200 such operations with a 100% success factor. He testified that there would be no real danger to Dangler’s life and only minimal pain after the amputation. Tr. 44, 5. Without reservation, Dangler’s surgeon recommended this surgery.

Dangler offered no evidence to indicate there is the slightest medical disagreement, much less a serious disagreement, as to the necessity for the amputation and the probability that the disability will be cured without recurrence.

When Doctor Lazaro testified as Dangler’s witness, Dangler did not present evidence to suggest that amputation of the distal phalanx was not indicated; the proposed amputation was not considered by him. Doctor Lazaro was adamant that Dangler is an excellent candidate for surgery; he only thought a second fusion was the preferred treatment.

The trial judge properly refused to order the fusion surgery because of the medical dispute on that issue. However there is no medical opinion opposing the amputation recommended by Dangler’s own surgeon, Doctor Landreneau, who testified as his own witness. His undisputed testimony is persuasive and requires a reversal.

Furthermore, the jurisprudence involving similar conditions which required surgery was not considered by the trial court or the majority; it also requires a reversal.

In Hamilton v. New Amsterdam Casualty Company, 208 So.2d 158 (La.App. 4 Cir.1968), claimant had been awarded compensation for partial disability of the hand. Defendant insurer tendered an operation and contended claimant should undergo surgery to amputate the first distal phalanx of his index finger as a condition for continued compensation. Claimant refused the operation recommended by his own specialist. Three tests were used to determine whether a claimant is justified in refusing to submit to surgery: 1) Can the operation relieve the disability? 2) Will it cause a minimum of danger to life and a minimum of pain? 3) Is there substantial agreement among the medical witnesses as to its necessity, and the probability that the disability will be cured without a recurrence ? The three tests were met: 1) There was only a possibility of “phantom pain” common after such amputations and no other disability. 2) The only major risk was attributable to the use of a general anesthetic. 3) As in the present case, only one physician testified about the amputation, hence no disagreement was found. 208 So.2d 158 at 161. The court ordered the amputation holding: “Because only the tip of his index finger is involved, if we do not order this operation, it is difficult to envision a situation in which an operation should be ordered.” 208 So.2d 158 at 162.

The three tests recited in the Hamilton case were approved in Bass v. Service Pipe Trucking Company, Inc., 289 So.2d 78 (La.1974).

In Duplechien v. States Exploration Company, 94 So.2d 460 (La.App. 1 Cir. 1957), the court affirmed the trial judge and required claimant to submit to surgery to have the lower ¿4 inch of the inner bone of his right forearm removed. A general anesthetic was required.

In Leday v. Lake Charles Pipe & Supply Company, 185 So. 655 (La.App. 1 Cir. 1939), the trial court required claimant to submit to a second amputation between the first and second joints of the index finger of his right hand as a condition to receiving further compensation. The procedure there was more radical than that which Dangler’s surgeon proposes, and the procedures are now more refined. Nevertheless, in 1939, the court affirmed on finding the surgery was minor; it was unattended by danger of serious consequences; it involved little pain and suffering, and was almost certain to relieve the disability. The court held it would be unfair and inequitable for claimant to continue to draw full compensation when he had it within his power to minimize the damage by submitting to a minor and relatively simple operation. 185 So. 655 at 657. See also Larson, Workmen’s Compensation Law (1972), Volume 1, § 13.22 and the cases cited at note 15.

Dangler’s refusal of the tendered amputation surgery, unqualifiedly recommended by his own surgeon, is unfair to claimant and his family, for all of them will benefit when claimant is once again able to resume his place as an able bodied workman.

The difference between the majority and dissenting positions is simple: the majority finds a tacit disapproval of the amputation because Dangler’s first surgeon recommended another fusion operation and never considered an amputation; the dissent finds no disapproval, either tacit or expressed, because all physicians unqualifiedly recommended surgery and no medical opinion was expressed which would question the need for, or efficacy of, the amputation. And these facts were developed from Dangler’s own expert witnesses.

It is respectfully submitted that the trial court judgment should be reversed and set aside insofar as it refused to order the surgery which was recommended by Dangler’s own surgeon, who testified as his own witness, without the slightest suggestion of opposition in this record.

      . The author of this opinion would also conclude that plaintiff’s refusal to submit to a second surgical procedure is reasonable in view of his expressed fear, uncertainty, and apprehension about such a second operation. As we said in Bass v. Service Pipe Trucking Company, Inc., 273 So.2d 349 (La.App.3rd Cir. 1973):
      “This is not to state, however, that a compensation claimant, under all circumstances, may never be justified in refusing surgery based on fear and concern for his physical well-being because of experiences undergone as a result of previous surgery or surgeries. In each such case the question of whether he is justified in refusing surgery must be determined by the facts of each particular case.”
      Plaintiff’s first operation was not successful. The second one may likewise be unsuccessful. I feel that his misgivings about another operation justifies his refusing same.


author: BLANCHE, Judge.

text:
    REALTY MART, INC. v. LOUISIANA BOARD OF TAX APPEALS and Collector of Revenue.
    No. 10819.
    Court of Appeal of Louisiana, First Circuit.
    June 30, 1976.

      Charles N. Malone, Baton Rouge, for Tax Appeals Bd.
    Allen J. Bergeron, Jr., Baton Rouge, for Collector of Revenue.
    Theodore L. Jones, Baton Rouge, for ap-pellee.
    Before ELLIS, BLANCHE and LOT-TINGER, JJ.
   BLANCHE, Judge.

Defendants-appellants, the Louisiana Board of Tax Appeals and the Collector of Revenue for the State of Louisiana, appeal a district court judgment which set aside the Board’s order directing the plaintiff-ap-pellee, Realty Mart, Inc., to answer certain interrogatories propounded to it by the Collector. We affirm.

On February 28, 1974, as a result of an audit of plaintiff’s records, the Collector assessed plaintiff for additional occupational tax in the sum of $1,550 for the years 1971 through 1973, plus a penalty of $125 and interest. The plaintiff appealed said assessment to the Board.

The Collector answered the appeal and propounded six written interrogatories to the plaintiff. The plaintiff objected thereto on the grounds that the information sought in the interrogatories was, or should have been, contained in the audit report.

Whereupon, the Board, pursuant to a rule brought by the Collector, ordered the plaintiff to respond. Rather than answer, the plaintiff petitioned the district court for a review of the Board’s decision, arguing that it was beyond the power of the Board to require an answer to said interrogatories. The trial judge agreed with plaintiff’s position and reversed the Board’s order.

Both the Collector and the Board have appealed the district court judgment. Only one issue is presented on appeal by both appellants, that is, whether or not the plaintiff herein may be required to answer written interrogatories propounded to him by the Collector in proceedings before the Louisiana Board of Tax Appeals. We find that the answer to the foregoing question is in the negative and, therefore, affirm the judgment of the trial court.

Chapter 17 of Title 47, Louisiana Revised Statutes, is statutory authority for creation of the Board of Tax Appeals. Therein, the powers of, and the rules governing, the Board are set forth. Section 1412 thereof reads as follows:

“The rules of evidence which the board shall adopt as those binding upon it shall be those rules of evidence followed in the district courts of Louisiana.”

Without citing authorities, appellants argue that the phrase “the rules of evidence” contained in Section 1412 is synonymous with, or necessarily includes therein, the rules governing written interrogatories. Based upon that premise, appellants contend that the rules of the district court regarding written interrogatories also apply to the Board.

Accordingly, since the district courts of Louisiana have authority to order a party to answer written interrogatories, see “Production of Evidence,” Title III, Book II, of the Louisiana Code of Civil Procedure, the appellants claim that the Board had similar authority to require the plaintiff herein to answer the interrogatories propounded to it by the Collector.

We think the appellants have incorrectly interpreted the meaning of the “rules of evidence” as used in the statute.

“Evidence” is testimony and matter which has actually been presented at trial. Therefore, facts obtained through the use of discovery devices, such as the instant written interrogatories, are not of themselves evidence. They may, however, become evidence by introduction as such at the trial of the matter. Welch v. Robert Campbell, Inc., 316 So.2d 822 (La.App. 1st Cir. 1975).

The “rules of evidence” are rules which determine whether or not the trial testimony, factual matters and the information obtained through the use of the various discovery devices are admissible at the trial to prove or disprove the allegations of the petition. Schulgasser v. Young, 25 Misc.2d 788, 206 N.Y.2d 81 (S.Ct.N.Y.1960).

The rules of evidence and the rules governing the use of written interrogatories are, therefore, not identical but actually contemplate two entirely different trial functions. Thus, Section 1412’s mandate that the Board adopt the rules of evidence of the district courts does not, without being more explicitly set out, mandate the Board to follow the district court procedure with regard to written interrogatories.

Next, appellants admit that the Board has no express statutory authority to compel the plaintiff to answer the instant interrogatories. However, they contend that by adopting the rules of evidence of the district court, Section 1412, in conjunction with the companion Section 1408, adopts by implication the district court rules with regard to the use of written interrogatories. Again, appellants cite no authority to substantiate their contentions.

“For purposes of enforcing or administering this Chapter, any member of the board, or the secretary-clerk, shall have the power to administer oaths and take affidavits, and any member of the board shall have the power to subpoena and require the attendance of witnesses and the production of books, papers and documents pertaining to the matter under inquiry, at any designated place of hearing, and to examine such witnesses, and may require the taking of deposition before any person competent to administer oaths, either within or without the state, upon notice to the interested party in like manner that depositions of witnesses are taken in civil actions in the district courts of the state. Any party to a matter pending before the board may summon witnesses or require the production of papers in the same maimer as witnesses are summoned, or papers required to be produced in civil actions in the district courts of the state.”

An administrative board or agency only has the power and authority expressly granted by the constitution or statutes. Nevertheless, some power and authority may be implied as necessary or appropriate in order to effectuate the express powers granted to, or imposed upon, such board or agency. 73 C.J.S. Public Administrative Bodies and Procedure, § 48-50.

However, while we accept as true the foregoing statement of law, the appellant Board has no express power which would give rise to the implied power sought herein.

Section 1412 does not require the use of written interrogatories to make effective its provisions. Nor does Section 1408, which grants to the Board specific authority to subpoena witnesses, take depositions, and require the production of books, papers and documents pertaining to the matters under inquiry, depend upon the use of written interrogatories to carry out those enumerated powers.

The answer to the issue presented herein lies in the fact that the appellant Board, being only an administrative agency of the State, could not on its own authority enlarge the powers delegated to it by the Legislature to include that sought herein. Kramer v. State Board of Veterinary Medical Examiners, 55 So.2d 93 (La.App. 1st Cir. 1951). See, also, Charbonnet v. Board of Architectural Examiners, 205 La. 232, 17 So.2d 261 (1944).

An action taken by an administrative board, in order to be valid, must fall within its legislative grant of authority. Hunter v. Hussey, 90 So.2d 429 (La.App. 1st Cir. 1956), writ granted, January 21, 1957, but unreported.

Since the Board possessed neither express nor implied power to do so, its order directing the plaintiff to answer the interrogatories propounded to it by the Collector exceeded the authority delegated to the Board by the Legislature and was, therefore, without effect.

For the above and foregoing reasons, the judgment of the trial court which reversed the action of the Board is affirmed. Appellants must bear those costs as can be legally assessed against the State.

AFFIRMED.

      . LSA-R.S. 47:1408, in pertinent part, provides: