text:
    STATE of Louisiana ex rel. Andre SORINA v. STATE of Louisiana.
    No. 59880.
    Supreme Court of Louisiana.
    Sept. 2, 1977.
   In re: Andre Sorina applying for remedial writs of certiorari.

Writ refused. Based upon the order of the trial court dated July 18, 1977, and the report of the trial court that defendant has been resentenced according to law the matter is now moot.


source: Caselaw Access Project

license: Public Domain

text:
    Tracy LEWIS v. Sam C. CASHIO, District Attorney, C. Paul Phelps, Acting Warden, Louisiana State Penitentiary, Elayn Hunt, Director, Department of Corrections.
    No. 60394.
    Supreme Court of Louisiana.
    Sept. 2, 1977.
   In re: Tracy Lewis applying for writ of mandamus.

Not considered. The examination of 19th Judicial District records indicates that the proceedings were not received or filed by that court.


text:
    STATE of Louisiana v. Thomas L. PHILLIPS.
    No. 60111.
    Supreme Court of Louisiana.
    Sept. 2, 1977.
   In re: Thomas L. Phillips applying for writ of mandamus.

Writ granted in part. Relator’s application must first be filed in the trial court; accordingly, relator’s application will be transferred to the trial judge to act upon said application.


text:
    John W. CHENEVERT v. Louisiana STATE DEPARTMENT OF HIGHWAYS.
    No. 6077.
    Supreme Court of Louisiana.
    Sept. 2, 1977.
   In re: State of Louisiana through the Department of Highways applying for cer-tiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Jefferson, 345 So.2d 960.

Writ denied. The result is correct.


text:
    William O. HUDSPETH v. James A. WYSOCKI.
    No. 60078.
    Supreme Court of Louisiana.
    Sept. 2, 1977.
   In re: James A. Wysocki applying for writs of certiorari, prohibition and mandamus.

Writ denied. Judgment not final.


text:
    Mrs. Patricia Lee Sherwood, widow of Edmond P. SNELL et al. v. Mrs. Mercedes STEIN, a/k/a Mrs. Mercedes Stein Miorana, et al. Mrs. Patricia Lee Sherwood, widow of Edmond P. SNELL v. BENEFICIAL FIRE AND CASUALTY INSURANCE COMPANY et al.
    No. 60083.
    Supreme Court of Louisiana.
    Sept. 2, 1977.
   In re: Mrs. Patricia Lee Sherwood, widow of Edmond P. Snell, et al., applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Jefferson, 345 So.2d 522.

Application denied. On the facts found, no error of law in the court of appeal judgment.


text:
    Charles D. CHASE v. SAFECO INSURANCE COMPANY OF AMERICA.
    No. 60085.
    Supreme Court of Louisiana.
    Sept. 2, 1977.
   In re: Charles D. Chase applying for cer-tiorari, or writ of review, to the Court of Appeal, Second Circuit, Parish of Jackson, 345 So.2d 969.

Writ denied. On the facts found by the court below, there is no error of law in the judgment.


text:
    STATE of Louisiana ex rel. Hank JOHNSON v. Matthew S. BRANIFF, Judge, Criminal District Court, Parish of Orleans.
    No. 60108.
    Supreme Court of Louisiana.
    Sept. 2, 1977.
   In re: Hank Johnson applying for writ of mandamus.

Writ denied. The trial court having acted on the application, this mandamus action is moot.


text:
    STATE of Louisiana v. Anthony H. JACKSON. STATE of Louisiana v. Barry L. DIGGS.
    No. 60156.
    Supreme Court of Louisiana.
    Sept. 2, 1977.
   In re: State of Louisiana applying for writs of certiorari, prohibition and mandamus and stay order.

Writ denied. This court refused to issue a stay order, and the matter has now become moot.


author: TATE, J.,

text:
    Mrs. Nancy Riddle, wife of Curtis H. EVERETT v. Curtis H. EVERETT.
    No. 60080.
    Supreme Court of Louisiana.
    Sept. 2, 1977.
   In re: Curtis H. Everett applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Jefferson, 345 So.2d 586.

Writ denied. The result is correct.

TATE, J.,

is of the opinion that a writ should be granted. The foreign divorce judgment, which was rendered with legal representation of both spouses and with consent of both spouses, should not be nullified by Louisiana Courts.


text:
    Robert C. BETBEZE, Individually and on Behalf of his minor daughter, Jennifer Betbeze v. CHEROKEE NATIONAL INSURANCE COMPANY and Enola Lagarosse, wife of/and Victor Lagarosse.
    No. 60081.
    Supreme Court of Louisiana.
    Sept. 2, 1977.
   In re: Cherokee National Insurance Co. and Enola Lagarosse, wife of/and Victor Lagarosse applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Jefferson, 345 So.2d 577.

Writ denied: The result is correct.

TATE, DIXON, CALOGERO and DENNIS, JJ., concur in the denial. There is no error of law in the court of appeal opinion.


text:
    STATE of Louisiana v. Leonard J. LaPLACE.
    No. 60380.
    Supreme Court of Louisiana.
    Sept. 2, 1977.
   In re: Leonard J. LaPlace, applying for supervisory writs, mandamus and prohibition and stay order.

Writ denied: The defendant has an adequate remedy by review in the event of conviction.


text:
    STATE of Louisiana ex rel. Ulysses D. SMITH v. CRIMINAL DISTRICT COURT, PARISH OF ORLEANS, SECTION "B".
    No. 60430.
    Supreme Court of Louisiana.
    Sept. 2, 1977.
   In re: Ulysses D. Smith applying for writ of mandamus.

Writ denied. Upon the showing that the charge against the accused has been nolle prossed and that he has been released, the application is moot.


text:
    STATE of Louisiana v. Samuel HUMPHREY and Ray Anthony Lane.
    No. 60452.
    Supreme Court of Louisiana.
    Sept. 2, 1977.
   In re: State of Louisiana applying for writ of certiorari.

Writ denied. Ruling of the trial judge is correct.


text:
    STATE of Louisiana v. Carroll J. DOMINGUE.
    No. 60491.
    Supreme Court of Louisiana.
    Sept. 2, 1977.
   In re: Carroll J. Domingue applying for writs of certiorari, prohibition, mandamus and for stay order.

Writ denied. No merit in the application.


text:
    STATE of Louisiana ex rel. GUSTE, Attorney General, and Representatives R. Harmon Drew and B. F. O’Neal v. The CITY OF NEW ORLEANS, Moon Landrieu, Terrence Devernay and Henry Simmons.
    No. 60511.
    Supreme Court of Louisiana.
    Sept. 2, 1977.
   In re: State of Louisiana, et al., applying for supervisory writs.

Writ refused. Relators remedy is by an expedited hearing in the Court of Appeal.


text:
    STATE of Louisiana v. Joseph BROCK.
    No. 60512.
    Supreme Court of Louisiana.
    Sept. 2, 1977.
   In re: Joseph Brock applying for remedial writ and stay order.

Writ Denied: No merit to the contention.


text:
    STATE of Louisiana v. James LOZAN.
    No. 60553.
    Supreme Court of Louisiana.
    Sept. 2, 1977.
   In re: James Lozan applying for supervisory and/or remedial writs.

Writ denied. A sentence in excess of five years having been imposed, no abuse of discretion is shown in denying bail pending appeal.


text:
    LOUISIANA STATE BAR ASSOCIATION v. Leo E. HEYMANN.
    No. 60467.
    Supreme Court of Louisiana.
    Sept. 2, 1977.
   In re: Louisiana State Bar Association filing report of the committee on professional responsibility.

Application denied. Since the conviction was reversed, the suspension is denied.


text:
    LAR, INC. v. BANK OF LOUISIANA IN NEW ORLEANS.
    No. 60072.
    Supreme Court of Louisiana.
    Sept. 2, 1977.
   In re: Pringle-Associated Mortgage Corp. applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans, 345 So.2d 517.

Writ denied. On the assignments of error the result is correct.

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


text:
    In re Allen PARKER.
    No. 60549.
    Supreme Court of Louisiana.
    Sept. 2, 1977.
   In re: Allen Parker, applying for writs of certiorari, mandamus and prohibition.

Writ denied. Since the witness is not actually imprisoned, see La.R.S. 15:258, we see no occasion to exercise our supervisory jurisdiction.


text:
    STATE of Louisiana v. Richard D. PENNINGTON.
    No. 60488.
    Supreme Court of Louisiana.
    Sept. 2, 1977.
   In re: State of Louisiana through the District Attorney, Harry Connick applying for writs of certiorari, mandamus and prohibition.

Writ denied. This court will not exercise its supervisory jurisdiction absent a showing of an error of law. La. C.C.Pr. art. 858.


author: DENNIS, J.,

text:
    STATE of Louisiana v. Terrence DONAHUE.
    No. 60099.
    Supreme Court of Louisiana.
    Sept. 6, 1977.
   In re: State of Louisiana, through the District Attorney, Ossie Brown, applying for supervisory writs.

Writ denied. Ruling of trial court is correct.

SANDERS, C. J., and SUMMERS, J., are of the opinion that a writ should be granted.

DENNIS, J.,

dissents. The ruling of the trial court was incorrect.


text:
    Joseph MATASSA, Jr., Owner and Operator of Sears Authorized Catalog Sale Merchant No. 17415 v. Simple TEMPLE and Laurie Aucoin.
    No. 60104.
    Supreme Court of Louisiana.
    Sept. 6, 1977.
   In re: Laurie Aucoin applying for certio-rari, or writ of review, to the Court of Appeal, First Circuit, Parish of Assumption, 346 So.2d 803.

Writ denied. No error of law in the Court of Appeal judgment.

TATE, DIXON and DENNIS, JJ., dissent from the denial of this application.


text:
    STATE of Louisiana v. Willie R. FULLILOVE.
    No. 60472.
    Supreme Court of Louisiana.
    Sept. 6, 1977.
   In re: Willie R. Fullilove applying for writs of certiorari, prohibition, mandamus and stay order.

Writ denied. The showing made does not warrant the exercise of our supervisory jurisdiction.

SUMMERS, TATE and DIXON, JJ., are of the opinion the writ should be granted.


text:
    OUACHITA NATIONAL BANK IN MONROE v. A. L. ROWAN et al.
    No. 60105.
    Supreme Court of Louisiana.
    Sept. 6, 1977.
   In re: Ouachita National Bank applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit, Parish of Ouachita.

Writ denied. The result is correct.


author: TATE, J.

text:
    STATE of Louisiana v. Jimmy Earl MAY.
    No. 60100.
    Supreme Court of Louisiana.
    Sept. 6, 1977.
   In re: Jimmy Earl May, applying for writs of certiorari, prohibition, mandamus and for stay order.

Writ granted. Evidentiary hearing is ordered to determine whether or not defendant waived counsel at the time of his first conviction in view of the discrepancy in minutes of trial court contained in the record.

TATE, J.

I respectfully dissent. The only proof of the first D.W.I. conviction is a minute entry which does not affirmatively show that the accused was represented by (or waived) counsel. Therefore he could not constitutionally be subject to enhanced punishment as a second offender, Loper v. Beto, 405 U.S. 473,92 S.Ct. 1014, 31 L.Ed.2d 374 (1972) and City of Monroe v. Coleman, 304 So.2d 332 (La.1974). The applicant is entitled to have vacated his conviction, which (on the face of the trial record) unconstitutionally imposed and enhanced his punishment as a second offender.


text:
    In the Matter of the Claims of James D. PARKER et al., Sherman Brumfield et al., Joseph Bagent et al. v. Joseph R. GERACE, Administrator.
    No. 60203.
    Supreme Court of Louisiana.
    Sept. 6, 1977.
   In re: James D. Parker et al., Sherman Brumfield et al., Joseph Bagent et al., applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of Washington. 346 So.2d 855.

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 v. Larry Joe PHILLIPS.
    No. 60305.
    Supreme Court of Louisiana.
    Sept. 6, 1977.
   In re: Larry Joe Phillips, applying for remedial writs.

Writ denied. Return from district court reveals that defendant’s appeal is presently pending. Habeas Corpus petition will not be granted pending an appeal. La.Code Criminal Procedure, Art. 363.


text:
    STATE of Louisiana ex rel. Rayfield JACKSON v. Ross MAGGIO, Warden, Louisiana State Penitentiary.
    No. 60109.
    Supreme Court of Louisiana.
    Sept. 6, 1977.
   In re: Rayfield Jackson applying for Writ of Habeas Corpus.

Application denied; the judgment of the trial court is correct.


text:
    James W. WALLACE et ux. v. STATE FARM FIRE AND CASUALTY INSURANCE CO.
    No. 60114.
    Supreme Court of Louisiana.
    Sept. 6, 1977.
   In re: State Farm Fire and Casualty Co. applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit, Parish of Ouachita. 345 So.2d 1004.

Writ refused. On the facts found by the Court of Appeal, there is no error of law in its judgment.


text:
    STATE of Louisiana v. Larry Joe PHILLIPS.
    No. 60190.
    Supreme Court of Louisiana.
    Sept. 6, 1977.
   In re: Larry Joe Phillips applying for writ of habeas corpus.

Writ refused. Relator has not filed this application in the trial court, and obtained a ruling thereon. Relator must exhaust his remedies in the trial court.


text:
    STATE of Louisiana v. Larry Joe PHILLIPS.
    No. 60498.
    Supreme Court of Louisiana.
    Sept. 6, 1977.
   In re: Larry Joe Phillips applying for remedial writs.

Writ denied. Petitioner has an adequate remedy by appeal. His complaint regarding the refusal to set bail was considered and disposed of upon a previous application in No. 60,455.


text:
    STATE of Louisiana v. Warren HEINTJES.
    No. 59480.
    Supreme Court of Louisiana.
    Sept. 6, 1977.
   In re: Warren Heintjes applying for writ of habeas corpus.

For the reasons stated by Judge M. Fleming, there is no merit to the application.


text:
    FRANKLIN WHOLESALE, INC. v. Eddie TREADWAY d/b/a Discount Fashions. FRANKLIN WHOLESALE, INC. v. Lonnie "Bill" TREADWAY d/b/a Fashion Distributors.
    No. 60087.
    Supreme Court of Louisiana.
    Sept. 6, 1977.
   In re: Eddie Treadway d/b/a Discount Fashions, et al., applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit, Parish of Jackson. 345 So.2d 990.

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


text:
    Succession of Harmon A. BARRON et ux. Succession of Harmon A. Barron et ux. (Luella Oden).
    No. 60088.
    Supreme Court of Louisiana.
    Sept. 6, 1977.
   In re: Misses Mattie L. Barron and Cloma Barron, applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit, Parish of Webster. 345 So.2d 998.

Writ denied. No error of law.


author: DIXON, J.,

text:
    STATE of Louisiana v. Eugene Jack HUNYADY.
    No. 60584.
    Supreme Court of Louisiana.
    Sept. 7, 1977.
   In re: Eugene Jack Hunyady applying for writs of review.

Writ denied. Relator is not entitled to the relief sought.

DIXON, J.,

dissents from the denial and is of the opinion the applicant should be released without bond because of the clear violation of C.Cr.P. 230.1.

DENNIS and CALOGERO, JJ., are of the opinion the State should be ordered to show cause why the relief prayed for should not be granted.


text:
    STATE of Louisiana v. Dell Larry COLLINS, Jr.
    No. 60585.
    Supreme Court of Louisiana.
    September 7, 1977.
   In re: Dell Larry Collins, Jr. applying for writ of review.

Writ refused. Relator is not entitled to relief sought herein.

DIXON, J.,

dissents from the denial and is of the opinion the applicant should be released without bond.

DENNIS and CALOGERO, JJ., are of the opinion that the State should be ordered to show cause why the relief prayed for should not be granted.


text:
    CITY OF NEW ORLEANS et al. v. Hon. Edwin W. EDWARDS, Governor, et al.
    No. 60605.
    Supreme Court of Louisiana.
    Sept. 7, 1977.
   In re: City of New Orleans et al., applying for writs of certiorari, prohibition and mandamus.

Application denied: No error of law in the ruling complained of.


text:
    Janis Roy CAROLLO et al. v. Barbara WILSON and New Orleans Public Service, Inc.
    No. 60079.
    Supreme Court of Louisiana.
    Sept. 10, 1977.
   In re: Janis Roy. Carollo- et al., applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans, 345 So.2d 601.

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:
    DIAMOND M. DRILLING COMPANY, and High Seas, Inc. v. COLLECTOR OF REVENUE.
    No. 7054.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 23, 1975.

       This case, which was not originally designated for publication, is ordered published, pursuant to a request to the court.

   IN RE: COLLECTOR OF REVENUE APPLYING FOR WRIT OF CERTIORARI, DIRECTED TO THE BOARD OF TAX APPEALS, STATE OF LOUISIANA, B. T. A. NO. 1550.

MANDAMUS

Relator’s application being considered and it appearing that:

1. Relator, the Collector of Revenue, on March 6 and March 29,1974, sent a notice to respondents “of his purpose to assess” certain amounts pursuant to LSA-R.S. 47:1562;
2. Thereafter respondents paid a portion of the taxes proposed to be assessed but made no protest pursuant to R.S. 47:1563 within the fifteen (15) day period provided for therein;
3. On May 9,1974, relator demanded the balance set forth in his proposed assessments;
4. On June 21, 1974, respondents filed a petition with the Board of Tax Appeals seeking a recission of relator’s assessment of the balance he claimed;
5. Relator’s exception while labeled a “dilatory exception” of prematurity is considered by us to be an exception to the appellate jurisdiction of the Board and was improperly overruled because:
a. Relator never made an assessment pursuant to R.S. 47:1564;
b. Relator never sent to respondents the notice required by R.S. 47:1565 A of the finally determined assessments with notification that respondents had thirty days in which to appeal to the Board;
c. Since such notice was not sent, the time for respondents to appeal did not begin to run and appellate jurisdiction has not vested in the Board.

IT IS ORDERED that the judgment of the Board of Tax Appeals dated February 14, 1975, dismissing the exception of the Collector of Revenue is annulled, vacated and set aside and there is judgment in favor of the Collector of Revenue, maintaining his exception of prematurity, and against Diamond M. Drilling Company and High Seas, Inc., dismissing their petition, reserving to all parties their right to proceed under R.S. 47:1564 and 1565.

(s) Judge Patrick M. Schott

(s) Judge Harry T. Lemmon

(s) Judge Ernest N. Morial


author: MORIAL, Judge. SCHOTT, Judge, PER CURIAM. SCHOTT, Judge,

text:
    Andrew LEWIS v. Mrs. Sara PAILET, d/b/a Jefferson Bottling Co., and Fireman’s Fund American Insurance Co.
    No. 7879.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 15, 1977.
    On Rehearing Aug. 1, 1977.
    Writ Refused Oct. 26, 1977.
    Gertler & Gertler, M. H. Gertler, New Orleans, Richard H. Levenstein, for plaintiff-appellant.
    Dillon & Williams, Gerard M. Dillon, New Orleans, for defendants-appellees.
    Before GULOTTA, SCHOTT and MORIAL, JJ.
   MORIAL, Judge.

Plaintiff appeals from a judgment of the district court granting summary judgment for defendant, Sara Pailet. We affirm.

Plaintiff was injured in the course and scope of his employment while driving a truck owned by Pailet Industries, a partnership doing business as Jefferson Bottling Company and Claiborne Ice House. While driving down South Claiborne Avenue in New Orleans in a northerly direction, the truck’s brakes failed causing plaintiff to collide with another vehicle.

Plaintiff sued Sara Pailet, the managing partner of Pailet Industries, as well as other supervisory employees in tort. He alleged that they were negligent in failing to properly maintain the vehicle and further alleged that the accident was caused solely by the defective brakes in the truck provided by defendant Jefferson Bottling Company-

Sara Pailet contended that plaintiff’s exclusive remedy is in workmen’s compensation and filed a motion for summary judgment. Three affidavits by Sara Pailet were filed in support of her motion for summary judgment. In her several affidavits defendant Pailet declared that she had delegated the duties of supervisor of employees, maintenance and inspection of vehicles used in the business of Jefferson Bottling Company and Claiborne Ice Company to the respective general managers of those separate divisions of Pailet Industries; that she never undertook the above responsibilities and had no knowledge of the defective condition of the vehicle. Plaintiff filed no counter affidavits. The district court granted Pailet’s motion for summary judgment. We affirm.

Subsequent to the district court’s ruling, the Supreme Court decided Cooley v. Slocum, 326 So.2d 491 (1976). In Cooley the Court held that a partner in the employing partnership is not immune from individual tort liability for injuries sustained by an employee of the partnership. In view of Cooley plaintiff has a possible action in tort against Pailet. However, in reviewing the record as a whole, as we are bound to do, we are of the opinion that the decision of the district court is correct.

In Cooley the Supreme Court analogized the cause of action to that of an employee against an executive officer of a corporation as set out in Canter v. Koehring, 283 So.2d 716 (La.1973). In Canter at page 721 the Court stated:

“ * * * personal liability cannot be imposed upon the officer, agent, or employee simply because of his general administrative responsibility for performance of some function of the employment. He must have a personal duty towards the injured plaintiff, breach of which specifically has caused the plaintiff’s damages. If the defendant’s general responsibility has been delegated with due care to some responsible subordinate or subordinates, he is not himself personally at fault and liable for the negligent performance of this responsibility unless he personally knows or personally should know of its non-performance or malper-formance and has nevertheless failed to cure the risk of harm.” [footnote omitted]

Defendant’s declaration in her affidavits in support of her motion for summary judgment substantially show that there is no genuine issue as to material fact. When scrutinized under the requirements in Canter necessary to find personal fault of an officer, agent, or employee upon which personal liability can be imposed, defendant’s affidavits in support of her motion for summary judgment together with plaintiff’s petition show substantially that there is no genuine issue as to material facts. See LSA-C.C.P. Article 966.

Plaintiff failed to file any opposing affidavits. He relied on the allegations of his petition to show that there is a genuine issue for trial. A party who opposes a properly supported motion for summary judgment cannot rely upon the bare allegations or denials of his pleadings, but must respond by affidavit or as otherwise provided and must set forth specific facts showing the existence of a genuine factual issue for trial. LSA-C.C.P. Articles 966 and 967. As here, should the opposing party fail to respond, summary judgment, if appropriate, shall be rendered against him. See Continental Casualty Co. v. McClure, 313 So.2d 260 (La.App. 4 Cir. 1975).

This is an appropriate case for the rendition of a summary judgment. Plaintiff failed to present any facts to support the bare allegations of negligence on the part of Mrs. Pailet as set out in his petition. Sara Pailet as the managing partner of Pailet Industries had delegated the duties of personal supervision over the employees and maintenance and inspection of vehicles used in the businesses of the partnership to her subordinate managers. Therefore, applying the doctrine of Canter to the facts set forth in Mrs. Pailet’s affidavits and the allegations of plaintiff’s petition we cannot find her personally liable for the injuries sustained by the plaintiff.

The judgment of the district court is affirmed at plaintiff’s costs.

AFFIRMED.

SCHOTT, J., dissents.

SCHOTT, Judge,

dissenting.

LSA-C.C.P. Art. 966 provides that the summary judgment “shall be rendered forthwith if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, . . .”

As was pointed out in the majority opinion, the Supreme Court in Canter v. Koehring, 283 So.2d 716 (1973) provided that for liability to attach to the executive officer plaintiff must show that the officer breached a personal duty toward the injured plaintiff but the executive officer may avoid liability if he establishes that the defendant’s general responsibility “has been delegated with due care to some responsible subordinate . . See Downey v. Callery, 338 So.2d 937 (La.App. 4th Cir. 1976), writs refused, La., 340 So.2d 1389 (1977).

Mrs. Pailet, as the managing partner of plaintiff’s employer, had a personal duty toward plaintiff to insure that the brakes on the truck which plaintiff was required to operate were functioning properly. The record establishes that Mrs. Pailet delegated this responsibility or duty to the general manager of Claiborne Ice Company, the division of her company for which the truck was used and being operated at the time of plaintiff’s accident. In order for defendant to prevail she must show, however, that her delegation was made with due care and that the general manager of Claiborne Ice Company was a responsible subordinate. There is nothing in the record to show that there is no genuine issue as to these material facts which are necessary elements in the defense of this case.

I would reverse this summary judgment and remand the case to the trial court for further proceedings.

ON REHEARING GRANTED

PER CURIAM.

We find no error in our original decision.

ORIGINAL DECREE REINSTATED.

SCHOTT, Judge,

dissenting from Per Cu-riam on Rehearing.

I adhere to my original dissenting opinion.


author: SCHOTT, Judge.

text:
    Jack F. HAYES v. TAC AMUSEMENT COMPANY, INC. and Operator Sales, Inc.
    No. 8327.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 17, 1977.
    Rehearing Denied Sept. 8, 1977.
    Writ Refused Nov. 4, 1977.

      John L. Hantel, New Orleans, for plaintiff-appellee.
    Larence L. Lagarde, Jr., New Orleans, for defendants-appellants.
    Before REDMANN, SCHOTT and MORIAL, JJ.
   SCHOTT, Judge.

Plaintiff originally sued Tac Amusement Company claiming workmen’s compensation benefits for total and permanent disability, resulting from an accident which occurred on the job on October 25, 1971. He subsequently joined as a defendant Operator Sales, Inc., alternatively seeking the same benefits in the event that he was found to have been an employee of that company when the accident occurred. From a judgment in his favor against Tac the latter took an appeal and plaintiff took a protective appeal against Operator Sales in order to preserve his rights.

Plaintiff had been employed to perform heavy warehouse labor consisting of moving coin operated machines which weighed as much as 1500 pounds. In October, 1970, about one year before the accident sued on, plaintiff injured his right knee while in the employ of Tac and was examined by Dr. John Saer, an orthopedic surgeon. Dr. Saer diagnosed chondromalacia of the patella or kneecap in the knee joint. At that time he did not advise surgery. In December, 1970, plaintiff returned with complaints of constant pain in the knee, and on further examination Dr. Saer suggested removal of the kneecap as an alternative to plaintiff’s living with pain. According to the testimony of plaintiff, he returned to work and continued handling these heavy machines until October 25, 1971, when he re-injured his right knee on the job. Dr. Saer examined him in December, 1971, and found that he had a tear of the lateral cartilage which required its removal. At the same time he removed the kneecap. Plaintiff’s post-operative recovery was complicated by the fact that in March, 1972, he suffered a tear of the tendon which had been sutured together. Dr. Saer found that plaintiff still had a considerable amount of weakness in his knee in October, 1972. Dr. Saer’s testimony and that of Dr. Jack Wickstrom, another orthopedic surgeon, who examined plaintiff in October and November, 1973, provided evidence which was sufficient for the trial judge to conclude that plaintiff was totally disabled from doing the work he had been doing before the accident and that his condition was permanent since it resulted from the removal of the kneecap.

The issues to be resolved in the case are, 1) whether or not the accident of October, 1971, caused plaintiffs disability, and 2) whether Tac or Operator Sales was plaintiffs employer so as to be liable in workmen’s compensation.

Defendants contend that the condition of plaintiffs knee which led to the removal of the kneecap was already present when the 1971 accident occurred, having resulted from the 1970 accident. They argue that the removal of the kneecap was incidental to the removal of the torn cartilage in January, 1972, and since plaintiffs disability resulted not from the removal of the cartilage but from the removal of the kneecap the trial court erred in awarding plaintiff disability benefits based on the 1971 accident.

' However, plaintiff testified that he resumed all of his duties about three months after the first accident and continued with them until the second accident. This uncontradicted testimony provided a sufficient basis for the trial judge to conclude that plaintiffs knee condition was at least aggravated by the second accident, and that his disability was the result of this aggravation entitling him to compensation.

On the issue of which company is liable to plaintiff, he testified that he was employed by Tac and he introduced his payroll check stubs and copies of W-2 income tax forms showing that Tac paid his salary. He testified that his general duties involved handling equipment “going and coming into Tac Amusement-Operator Sales” and that the 1971 accident occurred while he was in the process of receiving a juke box into the inventory of Operator Sales from Tac.

Elmo Bienvenue, personnel manager of Tac and Operator Sales, testified concerning the status of and relationship between the companies. Tac, a partnership, was a service company involved in placing machines in locations while Operator Sales, a corporation, was engaged in selling machines to other companies like Tac. A computerized payroll service was utilized for both companies but Tac was reimbursed by Operator Sales for salaries paid to the latter’s employees, including plaintiff. Similarly, Tac paid plaintiff’s medical expenses but was reimbursed by Operator Sales. One group hospitalization policy in Tac’s name covered employees of both companies, but each company paid for its own employees.

We have concluded that there is no evidence to demonstrate that plaintiff was not employed by Tac when the accident occurred. It seems that he was used by both companies interchangeably and his salary was initially paid by Tac. The fact that subsequent reimbursement was made to Tac by Operator Sales could not alter his status as Tac’s employee in the first instance.

Accordingly, the judgment appealed from is affirmed.

AFFIRMED.


author: MORIAL, Judge.

text:
    Robert D. MEYERS v. Mrs. Juanita Faul, wife of/and John J. BUCCOLA.
    No. 8045.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 17, 1977.

      James S. Quinlivan, Jr., Jefferson, for defendant-appellee.
    Alvin G. Baham, Gretna, for defendant-appellant.
    Before REDMANN, SCHOTT and MORIAL, JJ.
   MORIAL, Judge.

This suit involves a coneursus proceeding in which the right to $6,000.00 realized as part of the proceeds from the sale of a residence located at 2101 Fifteenth Street, Kenner, is being disputed by defendants Juanita Faul Buccola and her former husband John J. Buccola.

The Buceólas were legally separated on December 27, 1973. They planned to sell the former family residence in which Mrs. Buceóla continued to live while showing it to prospective purchasers. On October 11, 1974 Mr. Buceóla signed a written stipulation wherein he agreed in consideration for a cash payment of $9,000.00 to transfer his rights to and in the house to Mrs. Buceóla. He also agreed to participate in any act of sale of the property. Mr. Buceóla accepted the $9,000.00 check of Mrs. Buceóla. In late October Mrs. Buceóla entered into an agreement to sell the house to a Mr. Theodore Flettrich, Jr., for $42,000.00. On November 6, 1974 the act of sale was executed by Mr. and Mrs. Buceóla conveying the property to the Flettriches. At the time of the sale there was a first mortgage on the property in the amount of $12,000.00. Prior to the execution of the act of sale, Mr. Buceóla claimed he was entitled to one-half the equity in the house and refused to sign the act until Mrs. Buceóla agreed to pay him $6,000.00 in addition to the $9,000.00 he had previously received. Mrs. Buceóla refused and Mr. Buceóla finally agreed to sign the act of sale on the condition that $6,000.00 of the proceeds of the sale be placed in the registry of the court until the right to the money was judicially determined.

The issues presented to the court are (1) whether or not Mrs. Buceóla fraudulently deprived her former husband of his community property rights; (2) whether or not a condition contained in paragraph (a) of the stipulation suspended the operation of the agreement until the Buceóla divorce became final; (3) whether or not the parties contracted under an error of law which nullified their agreement; and (4) whether or not Mrs. Buceóla is entitled to damages suffered as a result of Mr. Buceóla filing a frivolous appeal.

Mr. Buceóla contends that his wife defrauded him of his rights in the community property by inducing him to sign the October 11 stipulation without informing him that an agreement to sell the house had been made. He also argues that the stipulation is void due to the couple’s mistaken belief concerning their ability to make a transfer of the property prior to a final judgment of divorce.

Mr. Buceóla argues that the crux of his case is that the operation of the agreement was subject to the suspensive condition that the property would not be transferred until the couple received a judgment of divorce.

Mrs. Buceóla argues that when the agreement is read as a whole, it is clear Mr. Buceóla sold his interest to her at the time he signed the stipulation and that the community was completely settled. She also argues that her husband failed to present any evidence of fraudulent conduct on her part. She asks for damages for interest lost on the $6,000.00 attorney’s fees and for mental anguish suffered.

The district court concluded that Mrs. Buceóla did not enter into the agreement to sell the house until almost a month after the October 11 stipulation was signed. The court did not find any evidence of fraud on the part of Mrs. Buceóla nor that the sus-pensive condition applied to the circumstances of the case.

John Buceóla signed the following stipulation on October 11, 1974:

>fr jf: jfc *
I.
“In consideration of the sum of Nine Thousand and no/100 ($9,000.00) DOLLARS cash, receipt of which is hereby acknowledged by John J. Buceóla, the said John J. Buceóla does hereby stipulate and agree as follows:
“(a) Upon the issuance of a final judgment of divorce between the said John J. Buceóla and his wife, Juanita Buceóla, by a Court of competent jurisdiction, John J. Buceóla shall transfer, convey and release unto the said Juanita Buceóla all right, title and interest which he presently has or may have in the following described property:
That immovable property located in Square 15A, Lots 34, 35 and 36, Kenner Heights Subdivision, Jefferson Parish, Louisiana, said lots measuring a combined total of 60' front by a depth of 150' between equal and parallel lines and which immovable property bears Municipal Number 2102 15th Street, Kenner, Louisiana, and all improvements thereon.
“(b) John J. Buceóla further stipulates and agrees that the said Juanita Buceóla, as well as any of her heirs and assigns, shall henceforth be entitled to any and all insurance proceeds relating to the above described real estate as well as any and all funds or payments which may in the future be made for the sale or exchange of the above described immovable property-
“(c) John J. Buceóla further stipulates and agrees to join in and consent to any Act of Sale of the aforesaid immovable property at the request of the said Juanita Buceóla and in the event of his demise, the said John J. Buceóla hereby renounces any and all claims, title and interest of every nature whatsoever which he and/or his estate have or may have in the aforesaid immovable property.
“(d) The said John J. Buceóla also stipulates and agrees that in the event of the death of the aforesaid Juanita Buceóla any and all right, title and interest which the said John J. Buceóla has or may have to the above described immovable property shall belong to the then living heirs of the said Juanita Buceóla.”
ifc J}S ifc S}i 5ft

Section (b) clearly provides that Mr. Buceóla agreed that Juanita Buceóla “shall henceforth be entitled to * * * any and all funds or payment which may in the future be made for the sale or exchange of the above described immovable” property. Mr. Buceóla acknowledged the immediate operation of the agreement by implication in accepting the $9,000.00. We do find that the agreement contained a suspensive condition. See LSA-R.C.C. Articles 2021, 2043 and 2044. He cannot now complain because his wife subsequently made a considerable profit on the sale of the house.

We also reject Mr. Buccola’s contention that he was defrauded of his rights by his wife. The preponderance of the evidence supports the district court’s conclusion that the final negotiations and perfection of the sale did not occur until the latter part of October. Mrs. Buccola stated firmly that she had bought her husband’s interest in the property prior to reaching an agreement to sell. The buyer, Mr. Flett-rich, could not remember the date of the final negotiations but testified that he had immediately requested his lawyer, Mr. Quinlivan to draw up the act of sale. Mr. Quinlivan testified that Mr. Flettrich contracted him on October 23 or 24 to draw up the final act of sale. Mr. Quinlivan had drawn up an earlier act of sale form but it was never signed by the parties. There is no evidence that Mrs. Buceóla was aware of the act of sale prepared in early October. We conclude that Mr. Buceóla failed to prove any fraudulent conduct on the part of his former wife.

We do not find that the parties to the agreement acted under such an error of law which would invalidate the contract. LSA-R.C.C. Article 1846 provides that an error or law invalidates a contract where such error is its only or principal cause. The “cause” of this stipulation was to settle the remainder of the community property. The couple no longer desired to own the property in indivisión. Mrs. Buceóla was of the opinion that the stipulation once signed, constituted a final settlement. Mr. Buceóla admitted that if his wife had received money from rental of the apartment rather than from a sale, prior to the divorce he would not have objected. Suspension of the agreement until the divorce was final was not the principal cause of the contract. Therefore, the legal misconception the Buccolas acted under was not sufficient to nullify the contract pursuant to LSA-R.C.C. Article 1846. See Nelson v. Walker, 250 La. 545, 197 So.2d 619 (1967).

This case is not appropriate for damages for a frivolous appeal.

The judgment of the trial court is affirmed.

AFFIRMED.


author: LEMMON, Judge.

text:
    TCHOUPITOULAS, INC. v. Jeanne S. McCULLOUGH et al.
    No. 8240.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 7, 1977.
    Rehearing Denied Sept. 8, 1977.
    Writ Refused Oct. 14, 1977.
    Edwards, Porteous & Lee, Marion F. Edwards and Daniel R. Martiny, Gretna, for plaintiff-appellee.
    Joseph V. Bologna, New Orleans, for defendants-appellants.
    Before LEMMON, BOUTALL and SCHOTT, JJ.
   LEMMON, Judge.

Defendants, the two co-owners of certain immovable property, have appealed from a judgment ordering specific performance of a contract to sell the property to plaintiff corporation. In the trial court defendants resisted the suit principally on the basis that there was no written authority by the corporation, as of the date of the alleged contract, authorizing the corporation’s representative to execute the contract. Defendants further contend that the authority of the representative of a corporation must be attached to the contract to sell immovable property.

We agree with defendants’ basic reasoning that if the corporation is not bound at the time a contract is executed, the other party also is not bound, and the corporation is not entitled to specific performance. Jackson Brewing Co. v. Canton, 118 La. 823, 43 So. 454 (1907). We also agree that the contract to sell is one which affects title to immovable property and must be in writing, C.C. arts. 2275 and 2276, and that the mandate authorizing the agent to buy or sell immovable property must be express and special, C.C. art. 2997, and must also be in writing. Centanni v. A. K. Roy, Inc., 258 So.2d 219 (La.App. 4th Cir. 1972).

We disagree, however, that the corporation’s representative’s written authority must be attached to the contract to sell. In Standard Oil Co. v. Evans, 218 La. 590,50 So.2d 203 (1950) the court upheld the validity of a contract of sale when the corporation’s resolution was filed in the parish notarial records. Therefore the key inquiry as to the validity of this corporation’s contract to sell is whether the representative’s written authority existed at the time of execution of the contract and not whether that written authority was actually attached to the contract. Furthermore, extrinsic evidence, although not admissible to vary or alter the terms of the written contract or of the written authority, may be used to establish the existence of the written authority at the time of execution of the contract, because such evidence merely corroborates the date shown on the written authority.

On the basis of this background discussion we proceed to determine whether the record establishes that written authority existed on the day the contract was executed.

Hilbert Loeb, secretary of plaintiff corporation which buys and sells real estate, testified: He was informed by an agent on November 5,1975 that the subject property was for sale; he examined the property that day and met with the other two directors of the corporation (his wife and son) for dinner at his home; the directors authorized him to contract for the purchase of the property, and the minutes were transcribed the same evening, as well as a resolution authorizing the purchase; around noon the following day (November 6) he executed an offer to purchase, the offer to remain open only through midnight (apparently because, as the agent testified, another offer was pending); and the next morning (November 7) the agent brought the accepted offer, and he gave a corporation check for the deposit.

The trial judge apparently found that written authority existed when Loeb executed the contract. Although Loeb’s son equivocated as to the details of the confection of the written authority and a contrary conclusion could reasonably have been reached under the facts and circumstances in this record, it is properly the function of the trial court to make such credibility determinations, and we find no manifest error.

The judgment is affirmed.

AFFIRMED.

      . Plaintiffs counsel stated the underlying problem in this case in the following statement to the trial judge:
      “This is a family corporation and they can make resolutions any time they wish and they can come in here and say that a resolution was made on November the 4th or the 5th or any time they want to.”


author: BEER, Judge.

text:
    Rose PHILLIPS et al. v. James J. BARRAZA et al.
    No. 8297.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 7, 1977.

      Bartholomew & Jones, Patrick E. Jones, Metairie, for plaintiffs-appellants.
    Montgomery, Barnett, Brown & Read, Charles A. Boggs, Hammett, Leake, Hammett, Hayne & Hulse, Craig R. Nelson, New Orleans, for defendants-appellees.
    Before GULOTTA, SCHOTT and BEER, JJ.
   BEER, Judge.

When this case was previously before us, certain undisputed basic facts were summarized as follows:

“The parties to this appeal agree that on February 21, 1973 the vehicle in which Mrs. Phillips was riding was rear-ended by a vehicle owned and operated by James J. Barraza, and that the collision was solely caused by his negligence. Bar-raza was insured by a liability policy issued by Empire Fire & Marine Insurance Company containing limits of liability of $5,000 each person and $10,000 each accident. The vehicle in which appellant Rose Phillips was riding was owned by her and driven by Mrs. Ruby McKinney. Mrs. Phillips had a policy with United States Fidelity & Guaranty Insurance Company covering this vehicle with uninsured motorists coverage to the extent of $5,000 per person and $10,000 per accident. The driver, Mrs. McKinney held a policy with Government Employees Insurance Company providing similar uninsured motorist coverage to the extent of $5,000 and $10,000.”

Legal issues raised and dealt with in our previous opinion caused the ultimate outcome of this litigation to be dependent upon the resolution of further factual issues. The matter was remanded, tried on its merits, and resulted in a written factual determination that “Mrs. McKinney was a regular user of Mrs. Phillips’ car.” Our consideration of the record convinces us that there is support for that critical factual determination by the trial judge who saw and heard the witnesses. See: Canter v. Koehring, 283 So.2d 716 (La., 1973).

The trial court entered judgment for $5,113.90 in favor of Mrs. Phillips and against Empire, dismissing plaintiff’s suit against USF&G and GEICO. Mrs. Phillips appeals only from the dismissal of the two uninsured motorist carriers, argues that the trial court erred in its factual determination that Mrs. McKinney used plaintiff’s vehicle on a regular basis, and, further, contends that the portion of Mrs. McKinney’s policy which excludes uninsured motorist protection benefits to Mrs. Phillips violates LSA-R.S. 22:1406 and Louisiana’s public policy favoring uninsured motorist protection.

The trial court’s factual finding compels the conclusion that the vehicle occupied by Mrs. Phillips was not an “insured automobile” under the GEICO policy issued to Mrs. McKinney since that policy protects against uninsured motorists but includes these provisos:

“ ‘Insured’ means .
(1) the named insured .
(2) any other person while occupying an insured automobile .
* ‡ sf: ‡ ‡
“. . . but the term ‘insured automobile’ shall not include ... an automobile furnished for the regular use of the principal named insured or any resident of the same household . . .”
(Emphasis ours.)

Thus, the only uninsured motorist coverage that may be available to Mrs. Phillips is that provided by her own insurer, USF&G. But since that coverage is equal to Empire’s liability coverage of Barraza, Mrs. Phillips’ claim cannot be asserted against USF&G. See Fontenot v. Guillory, 327 So.2d 578, esp. n. 3 at p. 583 (La.App. 3rd Cir., 1976), writs ref., 330 So.2d 314 (La.); Richard v. Zurich Ins. Co., 318 So.2d 83 (La.App. 3rd Cir., 1975); Nolker v. Wallace, 317 So.2d 4 (La. App. 3rd Cir., 1975); Doucet v. Insurance Co. of N. Am., 302 So.2d 731 (La.App. 3rd Cir., 1974), writs ref., 305 So.2d 134 (La.).

Finally, we must reject Mrs. Phillips’ contention that the “regular use” exclusion violates LSA-R.S. 22:1406 and the Louisiana public policy which favors uninsured motorist protection.

Mrs. Phillips cannot be considered as an “insured” under the GEICO policy issued to Mrs. McKinney. The policy would provide coverage for Mrs. Phillips in those instances where she occupied the McKinney automobile but does not provide coverage when she occupied a vehicle not owned by Mrs. McKinney but, nevertheless, furnished for her regular use.

Specifically, Mrs. Phillips does not fit into the definition of an insured and, thus, an essential element of her claim is lacking, public policy to the contrary notwithstanding. Note Elledge v. Warren, 263 So.2d 912 (La.App. 3rd Cir., 1972).

Accordingly, the judgment of the Civil District Court for the Parish of Orleans must be affirmed at appellant’s cost.

AFFIRMED.

      . Phillips v. Barraza, 320 So.2d 587 (La.App. 4th Cir., 1975), writs den., 323 So.2d 476, 478 (La.).

      . At the commencement of the trial, the parties stipulated that property damages were in the amount of $113.90; the balance of $5,000.00 apparently constituted general damages to Mrs. Phillips.


author: GULOTTA, Judge.

text:
    Wade O. MARTIN, Jr. v. The LOUISIANA STADIUM AND EXPOSITION DISTRICT et al.
    No. 8494.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 7, 1977.
    Rehearing Denied Sept. 8, 1977.

      Sutterfield & Vickery, James R. Sutter-field, New Orleans, for plaintiff-appellant.
    Dept, of Justice, William J. Guste, Jr., Atty. Gen., Warren E. Mouledoux, Donald Ensenat, Louis M. Jones, New Orleans, for defendants-appellees, Edwin W. Edwards, Governor, William J. Guste, Jr., Atty. Gen. and Charles E. Roemer, II, Commissioner of Administration.
    Kronlage, Dittman & Caswell, Charles A. Kronlage, Jr., New Orleans, for defendants-appellees, The Louisiana Stadium and Exposition District, et al.
    James R. Pertuit, New Orleans, for defendant-appellee, Building Engineering Services Co., Inc., Douglas, Nabonne & Wilkerson, Ronald P. Nabonne, Walter J. Wilkerson, New Orleans, Sobol & Trister, Richard B. Sobol, Washington, D. C., for defendant-appellee, Superdome Services, Inc.
    Before LEMMON, GULOTTA and BEER, JJ.
   GULOTTA, Judge.

Plaintiff appeals from the dismissal of his suit for a declaratory judgment and an injunction in which he seeks to have declared invalid the contracts between the State, the Louisiana Stadium and Exposition District (LSED) and, respectively, Building Engineering Services Company, Inc. (BESCO) and Superdome Services Incorporated (SSI) and to enjoin LSED from making any further disbursements to BES-CO and SSI under the terms of the contracts. We affirm.

A chronology of the constitutional amendments and legislative acts adopted in connection with the construction and.operation of the Louisiana Superdome is helpful in the consideration of the issues raised in this appeal. In 1966, a constitutional amendment, LSA-Const.1921, Art. 14, § 47, was adopted to create LSED for the purpose of constructing and operating the Su-perdome. Pursuant to Paragraph (E) of this amendment, a lease and management and operation agreement between LSED and the State of Louisiana was signed on February 1,1969, whereby the stadium was leased to the State, which in turn executed an agreement for the operation and management of the facility by LSED.

On May 10, 1974, an agreement was entered into between LSED and SSI for janitorial, ticket selling and taking, horticultural, field set-up and security work at the Superdome. On the same date, LSED also entered into an agreement with BESCO for the operation and maintenance of heating, air conditioning and ventilating equipment, plumbing fixtures, electrical equipment, fire protection systems, elevators and escalators and other mechanical equipment at the facility.

Subsequently, the question arose whether or not the agreements were in violation of LSA-R.S. 38:2211 requiring public work contracts exceeding the sum of $5,000.00 to be let out on public bids and also whether the agreements were in violation of LSA-R.S. 38:2217 which provides: “No contract shall be let on a cost-plus basis.” Upon request, Attorney General’s opinions addressed to these issues were rendered, stating in effect that the aforementioned statutes applied to LSED and that certain agreements were violative of these statutes.

In the wake of these opinions, the Louisiana Legislature adopted Act 651 of 1974 as a curative measure to validate these agreements. In Section 1. of this Act, reference is made to LSA-Const.1921, Art. 14, § 47(T) which authorizes the Legislature to “legislate in any manner and to any extent with regard to the Louisiana Stadium and Exposition District, its governing body and its powers, duties and functions, provided, however, no such changes or legislation shall impair the obligation of any contract or contracts theretofore entered into by the District”. Act 651 further makes reference to the facts that LSED is a “body politic and corporate”, that certain contracts were entered into between LSED and third parties relating to the operation of the Dome Stadium and that according to opinions rendered by the Attorney General those contracts were violative of the public bid act and of the prohibition in public work contracts against cost-plus agreements. Section 3. of the Act, in pertinent part, provides that the May 10 contracts between LSED and SSI and LSED and BESCO be “ratified, validated and confirmed and shall be deemed to bind the contracting parties, subject to the respective terms and conditions of the contracts”.

The trial judge, in written reasons, in pertinent part, stated that BESCO and SSI “both were subject to public bid laws”, but that “public bidding was accomplished with both of these contracts”. The trial judge further concluded, however, that the SSI and BESCO contracts were “in fact cost plus contracts”, but that Act 651 of 1974, which he determined to be constitutional, ratified, among others, the SSI and BESCO contracts. Consistent with those reasons, the trial judge dismissed plaintiff’s suit.

In this appeal, we are essentially confronted with three issues: 1) whether LSA-R.S. 38:2211 and LSA-R.S. 38:2217 apply to the SSI and BESCO contracts with LSED; 2) if these statutes are applicable, whether the contracts are violative of these two statutes; and, 3) whether Act 651 of 1974 validating the agreements is constitutional.

APPLICABILITY OF PUBLIC CONTRACT LAWS

If is LSED’s contention that it is constitutionally exempt from compliance with the statutory provisions relating to public contracts. In support of its argument, LSED claims that LSA-Const.1921, Art. 14, § 47(C) and (T) accord to LSED the broad and all extensive authority until directed otherwise by the Legislature, to contract without compliance with the public contract laws. LSED further points out that Paragraph (C) of the constitutional amendment creating the Louisiana Stadium and Exposition District specifically subjects the District to the idle funds act and the Code of Ethics, but omits any requirement that LSED is subjected to the public contract laws. According to LSED this omission creates the implication that LSED is not subject to the public bid law and the law prohibiting cost-plus contracts. We do not agree.

As pointed out by plaintiff, the management and operating agreement between LSED and the State dated February 1, 1969, recites, in essence, that LSED shall comply with the Constitution and statutes of the State. Furthermore, the constitutional amendment creating the Louisiana Stadium and Exposition District provides in Paragraph (A) that the District shall be a “body politic and corporate and political subdivision of the State of Louisiana . .” The public bid laws are applicable to the State and all political subdivisions of the State. Nowhere in the constitutional amendment creating the District are any exceptions made to the application of the public bid laws or the prohibition against cost-plus contracts. Indeed, by way of contrast, the constitutional amendment creating the District does exempt the State from compliance with the statutes relating to the leasing of the facilities. Paragraph (E) of the amendment provides that the State shall have the right to lease the facilities of the District without compliance with any other constitutional or statutory provisions relative to the leasing of public facilities. Paragraph (F) provides that the District, with the approval of the State Bond and Tax Board, is authorized to issue bonds “without reference to any other provisions of this Constitution or any laws enacted thereunder . . . .” Significantly, however, LSA-Const.1921, Art. 14, § 47 contains no language authorizing the District to contract without compliance with LSA-R.S. 38:2211 and 38:2217. It would have been a relatively simple matter to include such exceptions in the constitutional amendment. The fact that it contains no such express exceptions leads to a conclusion that LSA-R.S. 38:2211 (the public bid law) and 38:2217 (the cost-plus prohibition) are applicable to LSED. Apparently the Legislature, in its wisdom, arrived at the same conclusion, resulting in the adoption of Act 651 of 1974, the stated purpose of which was to cure the problem created regarding non-compliance with the public contract laws in the May 10 agreements.

The State or any of its political subdivisions in public work contracts is compelled to follow the public bidding laws unless exemption from compliance has been provided. The public bid law is founded on public policy. It has been enacted in the interest of tax-paying citizens and has for is purpose the protection of the public. See New Orleans Transfer Company, Inc. v. City of New Orleans, 284 So.2d 362 (La. App. 4th Cir. 1973); Boxwell v. Department of Highways, 203 La. 760, 14 So.2d 627 (1943). The same rationale is applicable to the prohibition against cost-plus contracts.

In concluding that the public contract laws are applicable with regard to the SSI and BESCO agreements, we distinguish those cases relied upon by LSED. In Kliebert v. South Louisiana Port Commission, 182 So.2d 814 (La.App. 4th Cir. 1966), writ refused, 248 La. 1030, 183 So.2d 652 (1966), cited by defendants, the court held that the competitive bidding provisions of the Public Lease Law were not applicable to a lease negotiated between the South Louisiana Port Commission (which had been created by a self-operative constitutional amendment) and a private lessee. In so holding, however, the Kliebert court stated:

“ * * * It would be an unwarranted restriction on the operation of the Commission to require it to submit an intricate agreement [the lease] of the type proposed here to the rigors of the competitive bidding statute. * * * ”

We are not convinced that the BESCO and SSI contracts deal with intricacies so complex as to necessitate the application of the rule established in Kliebert. We cannot conclude that contracts for the services provided by SSI and BESCO cannot be awarded through public bidding. Indeed, all parties concede that public bidding was accomplished in the awarding of the BESCO contract. Further, in Act 651 of 1974, validating the agreements, the Legislature specifically stated in Section 4:

“ * * * Furthermore, this Act is specifically intended and does hereby henceforth require full compliance of the Louisiana Stadium and Exposition District, or its governing authority, with all public bid and public contract laws of this state . . . .”

Obviously, the Legislature would not have made such a statement had it felt that the service contracts in question deal with subjects so specialized or intricate as to necessitate their being let without compliance with the public contract laws. Furthermore, the Legislature’s statement in Section 4. that LSED is to comply with the public contract law is refutation of the argument that the constitutional amendment creating LSED authorizes the body, either expressly or implicitly, to negotiate contracts without regard to the public contract laws. We do not find that the holdings in Hotard v. City of New Orleans, 213 La. 843, 35 So.2d 752 (1948) and Herbert v. Police Jury of West Baton Rouge Parish, 200 So.2d 877 (La.App.1st Cir. 1967), writ refused, 250 La. 1032, 201 So.2d 520 (1967), cited by LSED, compel us to reach a different conclusion. In Abbott v. Parker, 259 La. 279, 249 So.2d 908 (1971), also relied upon by LSED, the constitutional amendment provided the District with express authority to issue bonds “without reference to any other provisions of this Constitution or any laws enacted thereunder . . . .” On the contrary, in the instant case, the constitutional amendment creating the District does not contain any provision allowing LSED to contract without compliance with the public contract laws. The Abbott case is clearly distinguishable.

Accordingly, we are in agreement with the trial judge that LSED is subject to the public bid law, LSA-R.S. 38-2211, and the prohibition against cost-plus contracts, LSA-R.S. 38:2217.

WERE THE SSI AND BESCO CONTRACTS LET IN VIOLATION OF PUBLIC CONTRACT LAWS?

Plaintiff attacks the validity of the SSI contract on two grounds: 1) that it was negotiated and not let out for public bidding and is therefore violative of LSA-R.S. 38:2211; and, 2) that it is a cost-plus contract in contravention of LSA-R.S. 38:2217. On the other hand, plaintiff concedes that the BESCO contract was let in compliance with the public bid statute, but contends that the contract is a cost-plus agreement. We find no necessity to discuss whether the SSI contract was violative of LSA-R.S. 38:2211 because we find that both contracts are cost-plus agreements in violation of LSA-R.S. 38:2217 and, absent any curative legislation, are invalid.

Examination of the contracts supports this conclusion. The agreement between LSED and SSI provides in Article 3 that SSI is to be reimbursed by the State for all direct expenditures in connection with the SSI operation, for all salaries and wages of personnel engaged in the work to be performed, for costs of workmen’s compensation and other required insurance, for payroll taxes, for salaries and wages of supervisory and office personnel, for general expenses and for various other enumerated costs. The State agrees to pay SSI a specified management fee as a percentage of SSI’s costs. Similar provisions providing for reimbursement of costs and payment of a management fee as a percentage of the total costs are found in the BESCO agreement. Furthermore, in oral argument on appeal, counsel for SSI and BESCO do not seriously dispute that the agreements are cost-plus in nature. Accordingly, we have no problem in concluding that the agreements were violative of LSA-R.S. 38:2217.

CONSTITUTIONALITY OF ACT 651 OF 1974

As pointed out hereinabove, the purpose of Act 651 of 1974 is to validate the otherwise invalid SSI and BESCO contracts. Plaintiff contends, however, that this legislation is unconstitutional and therefore ineffective as a curative measure. His attack on the constitutionality of the Act is multifaceted.

Plaintiff’s initial contentions are that the SSI and BESCO contracts are not subject to ratification under any circumstances. Though we are in agreement with plaintiff that cost-plus contracts are prohibited by law and are contrary to the public policy of the State, we disagree with plaintiff’s contention that Act 651 is an unlawful ratification of unlawful contracts. Although the Act refers to “ratification” of the contracts, the agreements were not actually approved by the Commissioner of Administration until subsequent to the passage of the 1974 Act. The effect of Act 651 was to give approval to the purported agreements, and based upon this approval the contracts were then entered into between LSED and SSI and BESCO. While the contracts were prohibited cost-plus in nature, nevertheless, they did come into existence at the time that the Commissioner of Administration signed the contracts after approval had been granted in the legislative Act.

The public contract laws, LSA-R.S. 38:2211, et seq., and LSA-C.C. arts. 11 and 12, cited by plaintiff, are based on public policy, but nevertheless are creatures of the Legislature. Likewise, Act 651 is a legislative enactment and since this Act su-percedes LSA-R.S. 38:2211 and other legislative acts, the Legislature has the authority to enact that legislation which amends or supplements prior legislation. If the prohibition against cost-plus contracts and the provisions requiring public bids were incorporated in the Constitution, a mere legislative act would not be sufficient to circumvent the constitutional provisions. A constitutional amendment would be required under the circumstances. Such is not the ease in the instant matter. Act 651 of 1974 is legislation which takes a specific class of contracts out of the realm of prior legislation. Clearly, this right is reserved to any legislative body. See Hainkel v. Henry, 313 So.2d 577, 579 (La.1975); In Re Gulf Oxygen Welder’s Supply Profit Sharing Plan and Trust Agreement, 297 So.2d 663, 665 (La.1974); and Russell v. McKeithen, 257 La. 225, 242 So.2d 229, 235 (1970).

Additionally, we point out that in the constitutional amendment creating LSED, the right is reserved to the Legislature to more fully “define the rights and obligations of the District or otherwise legislate in any manner and to any extent with regard to the Louisiana Stadium and Exposition District, its governing body and its powers, duties and functions . . . .” We interpret this provision in itself to reserve to the Legislature the right to enact any legislation, within its wisdom, it deems proper in connection with LSED. Provided no constitutional infirmities exist, we find no merit to plaintiff’s contention that the Legislature could not enact legislation exempting LSED from compliance with public contract laws.

We likewise find no merit to plaintiff’s argument that Act 651 grants to the Legislature the power to make contracts and is a usurpation of the executive power of the government and therefore a violation of the separation of powers articles of the Constitution. Neither the constitutional amendment creating LSED nor Act 651 of 1974 grants the Legislature power to enter into contracts. The constitutional amendment creates LSED for the construction and operation of the Stadium and confers upon this political subdivision the authority to enter into contracts subject to approval and further legislation by the Legislature. As stated hereinbefore, Act 651 of 1974 authorizes LSED to enter into the contracts under the terms and conditions set forth in the Act. In this connection, it was not until after the adoption of the Act that the agreements were accepted by Charles Roemer, Commissioner of the Division of Administration. Roemer’s position is with the executive branch of government. Under the circumstances, we conclude that no infringement exists on the separation of powers by the enactment of Act 651 of 1974.

Plaintiff’s most serious attack on the constitutionality of Act 651 is that it is a special law in contravention of LSA-Const.1921, Art. 4, § 4 which provides, in pertinent part:

§ 4. Local or special laws; prohibited subjects
“Section 4. The Legislature shall not pass any local or special law on the following specified subjects:
s}s ¡je % sfc * *
“Granting to any corporation, association, or individual any special or exclusive right, privilege or immunity.
“Legalizing the unauthorized or invalid acts of any officer, servant, or agent of the State, or of any parish or municipality thereof.”

Plaintiff contends that Act 651 is legislation passed for the benefit of privileged corporations, namely BESCO and SSI, and legalizes the unauthorized or invalid acts of LSED in making the agreements in contravention of the public contract laws. We reject this argument. Act 651 of 1974 is not special legislation in derogation of LSA-Const. 1921, Art. 4, § 4.

In Teachers’ Retirement System of Louisiana v. Vial, 317 So.2d 179, 183 (La.1975), the Louisiana Supreme Court stated:

“General laws are those that operate equally and uniformly upon all persons brought within the relations and circumstances for which they provide or that operate equally upon all persons of a designated class founded upon a reasonable and proper classification. In contrast, a statute is special if it affects only a certain number of persons within a class and not all persons possessing the characteristics of the class. In essence, a special law is one directed to secure some private advantage or advancement for the benefit of private persons, [footnote numbers deleted]”

In Section 1. of Act 651 the Legislature creates a class, i.e., service contracts for the operation of the Louisiana Superdome, the provisions of which are in contravention of LSA-R.S. 38:2211 and 38:2217. In Section 3. of Act 651 this class of contracts is more specifically defined as twelve enumerated contracts, including the SSI and BESCO agreements. We view this finite enumeration not as an exclusive list, but rather an illustrative enumeration of the members of the class defined in Section 1. of the Act. Presumably this list of twelve agreements, though not exclusive, is in reality a complete listing of the known agreements in existence at the time the legislation was adopted. No contention is made that other Superdome service agreements were in existence at the time of the adoption of the Act and were not listed. Nevertheless, all contracts with the characteristics of the class designated in the legislation are affected and, therefore, the Act is not special legislation prohibited by LSA-Const.1921, Art. 4, § 4.

Furthermore, the class established in the statute is “founded upon a reasonable and proper classification”. As the Act states, the contracts in contravention of the public contract laws are to be validated because:

“ * * * (7) . . . the completion of the stadium is placed in jeopardy by reason of the fact that to require the district to follow the contract laws of the state, with respect to the contracts herein to be ratified, would cause a substantial delay in completion and in placing the said facility into full operation; (8) to bid these projects and services at this time likely would be more costly than the contracts the district has already negotiated; (9) in order for the state to be able to receive revenues from this facility at the earliest possible date, to help defray the cost of the project, it is necessary that these contracts be validated, ratified and confirmed.”

In view of the reasons underlying the passage of Act 651, we have no difficulty in concluding that the class created by the legislation is reasonable and proper. This is not to say, however, that we are in agreement with the wisdom of this legislation. Nevertheless, if the lawmaking body of this State in its wisdom has seen fit to pass legislation which meets the test of reasonableness, we cannot interfere with the legislative will, provided that will is constitutionally exercised.

The Legislature, in attempting to bail a public body out of trouble, can only do what is constitutionally permissible. But the judiciary, in determining constitutionality of a legislative act, must consider not only the form of the act as measured against the literal constitutional provision, but also the substance of the act in the light of the surrounding circumstances, the reasons for passage and the purpose to be accomplished. Knapp v. Jefferson-Plaque-mines Parish Drainage Dist, 224 La. 105, 68 So.2d 774 (1953); Sutherland, Statutes and Statutory Construction, § 40.02 (4th ed. 1973).

LSA-Const.1921, Art. 4, § 4 prohibits the Legislature from passing a special law on certain specified subjects, the pertinent one being a law granting a special right to a corporation or individual. The article is intended to prevent abuse of legislative power on behalf of special interests and to prohibit the exemption of an individual or private corporation from the operation of a general law; it was not intended to restrict the use of legislative power to further the State’s interest. Thus, the constitution should not be inflexibly interpreted to prohibit the Legislature from passing a statute in an emergency situation to benefit a public body, even if several private corporations are incidentally thereby benefited.

Since the record established that Act 651 was not passed to grant a special benefit to the private corporations, the legislation should be construed, within the reasonable meaning of LSA-Const.1921, Art. 4, § 4, not to be a prohibited special act.

This reasonableness of the classification is also dispositive of plaintiff’s contention that Act 651 violates the equal protection provisions of the U.S. and State Constitutions. As the Supreme Court stated in Louisiana & Arkansas Railway Company v. Goslin, 258 La. 530, 246 So.2d 852, 854 (1971):

“ * * * It is fundamental that: ‘The constitutional right to the equal protection of the laws means that every one is entitled to stand before the law on equal terms with, to enjoy the same rights, as belong to, and to bear the same burdens as are imposed upon others in a like situation. * * * ’
“The constitutional restriction, however, does not operate so as to prevent a variety of classifications, or remove from the discretion of the State Legislature its right to provide a number of differences in the selection or classification of persons or property (geographical, or otherwise) so long as the discrimination is not invidious, unreasonable, or oppressive, but founded on just and equitable distinctions. In cases such as this one, where it is asserted that certain classifications or exemptions therefrom, are discriminatory and violative of the principles of ‘equal protection’, the function of the courts is to determine whether the distinction is arbitrary or is based on practical and reasonable grounds with relation to the public purpose sought to be achieved by the legislation. * * * ”

Clearly the distinction between the service contractors at the Superdome and other contractors in the State is not arbitrary in view of the emergency nature of the passage of Act 651 and the substantial delays and costs that would have been incurred in the absence of the curative legislation. Under the circumstances, we do not find Act 651 violative of the equal protection provisions of the U.S. and State Constitutions.

We also disagree with plaintiff’s contention that Act 651 is without effect because it does not have “a title indicative of its object” as required by LSA-Const. 1921, Art. 3, § 16. The title to Act 651 provides in pertinent part that it is “An Act relative to the Louisiana Stadium and Exposition District ... to ratify, validate and confirm certain contracts of the Louisiana Stadium and Exposition District. .” We find no merit to plaintiff’s contention that the failure to mention LSA-R.S. 38:2211 and 38:2217 in the title invalidates the provisions of the Act regarding the service contractors. The phrase in the title “to ratify, validate and confirm certain contracts” is indicative of the object of the legislation and no further specificity is required in the title.

Finally, we reject plaintiff’s contention that the Act in effect uses public money for an unlawful purpose benefiting private individuals and therefore constitutes illegal taxation in violation of LSA-Const.1921, Art. 1, § 2 which forbids deprivation of rights of property without due process of law. We have previously concluded that the Act is not a special one benefiting private individuals, but is general legislation with the avowed purpose of benefiting the State. Plaintiff’s argument in this regard, therefore, is without merit.

We conclude that although the public contract statutes are applicable to the Louisiana Stadium and Exposition District and the contracts with SSI and BESCO were violative of these statutes, nevertheless, the Legislature by Act 651 of 1974 effectively exempted the SSI and BESCO contracts from the public contract laws. Accordingly, the judgment dismissing plaintiff’s suit is affirmed.

AFFIRMED.

      . LSA-R.S. 38:2211, in pertinent part, reads as foliows:
      § 2211. Advertisement and letting to lowest responsible bidder
      “A. (1) All public work exceeding the sum of five thousand dollars including both labor and materials to be done by the state of Louisiana, any public corporation or political subdivision of the state and all purchases of materials or supplies exceeding the sum of two thousand five hundred dollars to be paid out of public funds shall be advertised and let by contract to the lowest responsible bidder who had bid according to the contract, plans and specifications as advertised, and no such public work shall be done and no such purchase shall be made except as provided in this Part. * * *”

      . LSA-R.S. 38:2217 reads as follows:
      § 2217. Cost-plus contracts prohibited
      “No contract shall be let on a cost-plus basis.”

      . LSA-Const.1921, Art. 14, § 47(C) reads as follows:
      “* * * The District shall not be subject in any respect to the authority, control or supervision of any regulatory body of the State or any political subdivision thereof, but its books and records shall be subject to audit annually by the Legislative Auditor, its employees shall be listed on the central listing of State employees, and it shall invest its idle funds in accordance with the investment of idle funds act and it shall be subject to the provisions of the Code of Ethics.”

      . LSA-Const.1921, Art. 14, § 47(T) reads as follows:
      “This amendment is to be regarded as self-sufficient and self-executing without any supplementary action on the part of the Legislature or any other State authority. The Legislature is nevertheless authorized to more fully define the rights and obligations of the District or otherwise legislate in any manner and to any extent with regard to the Louisiana Stadium and Exposition District, its governing body and its powers, duties and functions, provided, however, no such changes or legislation shall impair the obligation of any contract or contracts theretofore entered into by the District.”

      . Section 12. of the Management and Operating Agreement provides:
      “Section 12. Compliance with State Laws.
      “In carrying out this Agreement, the District shall comply with the Act and all other applicable laws. Nothing herein provided shall ever be interpreted or construed as permitting or authorizing the letting of any contracts for or the purchase of any supplies, materials and contractual services in violation of or contrary to any provisions of the Constitution and statutes of the State of Louisiana which may be applicable to such actions, it being the intent of this Agreement that all purchases and contracts be made strictly in compliance with applicable law on such subjects.”

      . See Arnold v. Board of Levee Commissioners of Orleans Levee District, 327 So.2d 495 (La. App. 4th Cir. 1976), application denied, 330 So.2d 318 (La.1976), wherein the Board argued that LSA-Const.1921, Art. 17, § 7(h) which granted the Board the power to lease certain lands likewise exempted it from compliance with LSA-R.S. 41:1211, the Public Lease Law. In holding that the Board was subject to the Public Lease Law, we stated at page 499:
      “* * * A constitutional grant of power has as its source the sovereignty of the state, just as the revised statutes do, and in the absence of conflict between these enactments, both must be recognized. Thus, the Public Lease Law is inoperative only if the constitutional or statutory grant of power may be construed to expressly exempt the agency from its operation.”
      See also Upper Audubon Association v. Audubon Park Commission, 329 So.2d 206 (La.App. 4th Cir. 1976), writ denied, 333 So.2d 240 (La. 1976).

      . Carried over in substance as LSA-Const. 1974, Art. 3, § 12.

      . U.S.Const. Amend. 14, § 1; LSA-Const.1921, Art. 1, § 2; LSA-Const.1974, Art. 1, § 3.

      . Parenthetically, we observe that the benefit to BESCO and SSI was substantial but, nevertheless, incidental in light of the overwhelming fiscal impact on the State and its citizens if the opening of the facility had been subjected to almost certain and extensive further delays,

      . LSA-Const. 1974, Art. 3, § 15.

      . LSA-Const. 1974, Art. 1, § 2.


author: REDMANN, Judge.

text:
    U. KOEN AND COMPANY RETAIL STORES, INC., et al. v. J. & R. CIGARETTE SERVICE, INC., et al.
    No. 8121.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 30, 1977.
    Rehearing Denied Sept. 9, 1977.
    Paul B. Deal, Lemle, Kelleher, Kohlmeyer & Matthews, New Orleans, for plaintiffs-appellants.
    John M. Holahan, New Orleans, for defendants-appellees.
    Before REDMANN, SCHOTT and MORIAL, JJ.
   REDMANN, Judge.

Plaintiff assignees appeal from the dismissal of a bankrupt’s claim against defendant corporation.

The trial judge accepted the testimony of a person who had been, over a period of some 25 or 30 years, the sole proprietor and then the controlling shareholder of a precursor of the bankrupt. That testimony was that the debt the bankrupt claimed from defendant corporation was owed by the individual or partnership precursors of defendant corporation; that credit was never extended to the corporation except in the sense that all purchases in a given week were allowed to be paid for at the week’s end. That testimony would have supported the trial judge’s judgment except that it is contradicted by the business records of the bankrupt — records which were kept by the witness herself. Those records show that credit was extended to the corporation for its weekly purchases, and establish that defendant corporation is liable for $37,471.24.

Corporate purchases for week ending February 5, 1964 were $13,108.46; February 12, $12,904.72; February 19, $13,055.87; February 24 (sic) $12,460.13. As of a February 29 statement to the corporation, all of those amounts are claimed due, as well as a $3,242.06 January balance, making a corporate debt total of $54,771.24 (plus $12,700 old personal or partnership debt). (Also as of February 29, a separate statement to “Car Stock J. R. & Lawrence Bienvenu” claimed $1,315.20 balance for December through February. A third February 29 statement to “Car Stock Lawrence Bienvenu, Old Account” claimed $2,272.32.)

Then on November 30, 1964 a statement to the corporation claimed a balance for the week of February 5 of only $9,050.52. But the same charges for purchases in the weeks ending February 12, 19 and 24 (sic) remained, making a total of $47,471.24 (to which the statement added the amounts of the two “car stock” statements of February 29 not addressed to the corporation, and only $7,500 of old personal or partnership debt.) Eleven months later, on September 30, 1965, the February 5, 1964 balance is reduced to $4,550.52 (erroneously; the payments shown reduce it to $4,050.52) and the three other February balances remain the same (as do the car stock and the old debt amounts). The corporate charges thus were $42,471.24, and the total of that statement, including the car stock and old debt accounts, was $52,958.76. That last figure is the starting figure on a July 8, 1966 statement, after which payments totalling $5,000 reduce the statement total to $47,-958.76 as of March 1967 and the time that plaintiffs acquired the account. The best we can assume, from the corporation’s view, is that the corporation paid that $5,000, so that its indebtedness was reduced from $42,471.24 to $37,471.24.

Reversed; judgment for plaintiffs for $37,471.24 with legal interest from judicial demand and all costs.

      . Plaintiffs also seek recovery on the basis of a June 1964 “acknowledgment” by the corporate president of the total of the debt, including all of the personal debt (a factually erroneous position, since at most $7,500 of the personal debt was included in the $60,271.24 “acknowledged”).
      The acknowledgment was signed by the individual who was then defendant corporation’s president, as part of his unilateral declaration that he would pay, “upon consummation of his loan with the Small Business Administration,” $18,000 to the now-bankrupt’s controlling shareholder. Of that $18,000, $5,200 was to pay a personal debt and $12,800 was to be paid on account of the corporate debt, “which the undersigned acknowledges is as of this date $60,271.24”. The promise of the $18,000 was given “in consideration of the cancellation of the inscription” of a $5,200 judgment against the president individually — which was in fact never cancelled. The most we can say for this acknowledgment is that it does not purport to promise to pay any individual or partnership debts beyond $18,000, even if it be deemed an acknowledgment by the corporation. As an acknowledgment, it is simply mistaken. The testimony of the creditor herself showed that the $7,500 and $5,200 items of the February 1964 statement were personal and not corporate debt. The $60,271.24 “acknowledged” in June exceeds the corporation’s $54,771.24 actual balance of February by $5,500, as the result of (1) treatment of the $5,200 personal debt as paid in accordance with the acknowledgment, leaving only $7,500 personal debt, and (2) payment of $2,000 (by the corporation, we must assume) between the February statement and the June acknowledgment.


author: STOULIG, Judge. PER CURIAM.

text:
    Frances CURTIS v. Alice Meyer KATZ.
    No. 8192.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 30, 1977.
    Rehearing Denied Sept. 9, 1977.
    Writ Refused Nov. 4, 1977.
    McGlinchey, Stafford, Mintz & Hoffman, William F. Bologna, New Orleans, for plaintiff-appellee.
    Robert A. Katz, New Orleans, for defendant-appellant.
    Before REDMANN, STOULIG and MORIAL, JJ.
   STOULIG, Judge.

Alice Meyer Katz, a lessor, has appealed a judgment requiring her to return a $125 security deposit posted by her tenant Frances Curtis, plaintiff, and condemning defendant to pay $200 in damages plus $200 in attorney fees for willfully withholding the deposit without cause. We affirm.

The record reveals that plaintiff leased a one room efficiency apartment from defendant at 2010 Octavia Street in the City of New Orleans by written lease from May 15, 1975 through January 15, 1976. At its inception, the tenant posted a $125 deposit against damages refundable at the termination of the lease “* * * provided that * * * 2. * * * premises are in the same clean condition as when lessee moved in.” When the primary term expired the lease was verbally reconducted on a month-to-month basis. On February 15, 1976, plaintiff, in compliance with the written lease, gave defendant written notice of her intent to vacate on March 15 and paid the rent in advance through that date.

On March 2,1976, plaintiff began moving her possessions to her new apartment; however, she retained her key to Mrs. Katz’ property because she planned to complete her move gradually as time permitted. Miss Curtis explained she had two jobs and her time was limited.

When Mrs. Katz first learned her tenant planned to vacate, she reminded plaintiff of her obligation to have the apartment cleaned or bear the expense, and plaintiff advised the lessor she planned to clean it herself. Although the lease period had not expired, Mrs. Katz kept pressing to have plaintiff clean the apartment and plaintiff repeatedly assured her that it would be cleaned before she finally vacated it.

On March 9, 1976, one week before the lease expired, Mrs. Katz hired professional cleaners allegedly to clean plaintiff’s apartment which the landlady described as being in “deplorable” condition; but Mrs. Katz engaged them to do a much more thorough cleaning of the apartment than she had done prior to Miss Curtis’ occupancy. Included in this job was a cleaning of the outside windows, shutters, and aircondition-ing vents, in addition to cleaning the floors and walls of the apartment. Defendant testified it was customary for the tenant to clean the one room apartment before vacating the premises.

When the cleaners came, Miss Curtis’ remaining possessions were removed from the apartment. Mrs. Katz did inform her tenant she would like to bring in the cleaning men, but she failed to mention she expected plaintiff to pay the bill. Nor did Mrs. Katz offer to remit the rent for the premature entry into plaintiff’s apartment. When plaintiff surrendered the key on March 14 and requested her deposit, Mrs. Katz informed her the cleaning expense was $150 and her deposit had been applied against this amount.

On March 17, 1976, plaintiff’s attorney made a written demand for the return of the deposit. By letter dated April 14, defendant’s attorney replied the deposit had been used to clean the apartment. He further asserted the tenant’s abandonment of the apartment exempted Mrs. Katz from the provisions of the Lessee’s Deposit Act (R.S. 9:3251, et seq.).

Miss Curtis did not abandon the premises. When she began sleeping at her new apartment on March 2, she instructed the utility company to transfer her service there. This does not constitute an abandonment as defendant contends. In Salim v. Louisiana State Board of Education, 289 So.2d 554, 560 (La.App.3d Cir. 1974), the court defined the term:

“* * * ‘Abandonment’ of property or of a right is the voluntary relinquishment thereof by its owner or holder, with the intention of terminating his ownership, possession and control, and without vesting ownership in any other person. Powell v. Cox, supra, [La.App., 92 So.2d 739]; New Orleans Bank & Trust Co. v. City of New Orleans, 176 La. 946,147 So. 42 (1933). * * *”

Plaintiff’s retention of the key to the apartment in which she kept certain possessions during her gradual move evinces an intent to retain possession and control over the premises until the lease expired.

Despite plaintiff’s assertion she would clean the apartment herself, defendant brought in professional cleaners one week before plaintiff was required to surrender possession and had a heavy cleaning performed that far exceeded the cleaning required to restore the premises to “* * the same clean condition as when lessee moved in,” as provided by the lease.

Under these circumstances, Mrs. Katz’ refusal to return the deposit was not justified. There is some dispute about whether Mrs. Katz furnished a written explanation of her retention of the deposit timely for the purpose of exempting her from damages provided by R.S. 9:3252. Because her position is arbitrary, she is nonetheless liable for damages because the statute provides in part:

“* * * Failure to remit within thirty days after written demand for a refund shall constitute willful failure.”

The award of $200 damages is proper.

Plaintiff was awarded $200 attorney fees by the trial court and, in brief, has requested an increase for services rendered in connection with this appeal. We are aware that $200 hardly compensates plaintiff’s attorney for the preparation, trial and appeal of this case. Even though the initial amount sought for the tenant is relatively small, we think the attorney presenting the claim should be fully compensated for his time. Prior to the passage of this act, lessors could retain security deposits almost with immunity because the small amount involved made legal action unfeasible. The purpose of this act was to give the tenant a remedy against this arbitrariness by providing for attorney fees where the lessor wrongfully retained the deposit. If we limit our fee awards to token amounts, we defeat the purpose for which this act was passed. In response to the request for an increase, the answer is: We would if we could. Because plaintiff failed to appeal or answer the appeal, we cannot amend the judgment in her favor. As to that litigant, the judgment of the trial court is final.

For the reasons assigned, the judgment is affirmed.

AFFIRMED.

ON APPLICATION FOR REHEARING

Before REDMANN, STOULIG and MORIAL, JJ.

PER CURIAM.

It is ordered that the judgment be amended to award appellant-reconvenor $3.83 which she paid for the water bill for the leased premises. In all other respects the judgment is affirmed.

REHEARING REFUSED.


author: STOULIG, Judge.

text:
    COMMUNITY CREDIT CENTER CORPORATION v. Luis ORTIZ and Carl J. Selenberg, d/b/a the Law Firm of Ortiz and Selenberg.
    No. 8262.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 30, 1977.
    Rehearing Denied Sept. 9, 1977.
    Writ Refused Nov. 4, 1977.

      Michael H. Bagot, John H. Gniady, New Orleans, for plaintiff-appellee.
    Friedman, Ortiz & Selenberg, Maurice B. Friedman, New Orleans, for defendants-appellants.
    Before REDMANN, STOULIG and MORIAL, JJ.
   STOULIG, Judge.

Defendants, Luis Ortiz and Carl J. Selen-berg, attorneys, have appealed a judgment holding them individually liable for a $480.60 debt of Matthew Henderson, one of Selenberg’s former clients. It is plaintiff’s position that defendant Ortiz verbally guaranteed payment of the loan from funds received by the law firm in connection with Henderson’s workmen’s compensation claim.

On March 30, 1974, Henderson signed a note for $625.05 payable to plaintiff, Community Credit Center Corporation, which sum was remitted by plaintiff to a furniture dealer who had delivered certain merchandise to Henderson. On that same date, Henderson signed a document upon which plaintiff now relies in this case, which we quote:

‘AUTHORIZATION TO WITHDRAW MONEY
I, Mathew [sic] Henderson, of lawful age, hereby authorize the law firm Ortiz & Selenberg, 4526 Magazine St., New Orleans, La., who are my attorneys, to withdraw from my workmen compensation claim checks the sum of $75.00 per month to be paid to Community Credit Center, Inc., 4206 Washington Ave., New Orleans, Louisiana.
In the event a lump sum settlement of my claim is made, I hereby authorize my said attorneys to withdraw from the settlement check the total balance owed to Community Credit Center, Inc. at the time of the settlement.
The above referred to claim arose out of injuries suffered on the job while employed by Bertucci Excavating Co. on August 15, 1973.
TSignedl Matthew Henderson
Mattew [sic] Henderson
Witnesses:
TSignedl Carl J. Selenberg
TSignedl Mario A. Ortiz
SWORN TO AND SUBSCRIBED BEFORE ME THIS 30th DAY OF March. 1974.
TSignedl Luis Ortiz
NOTARY PUBLIC”

Defendant Carl Selenberg did forward two payments on account, one for $69.45 on April 18,1974 and one for $75.00 on June 4, 1974. On July 15, 1974, Henderson’s claim was settled for a lump sum payment of $3,250; however, Selenberg did not forward the balance due plaintiff because his client Henderson instructed him not to do so.

Under these circumstances neither defendant can be held individually liable for Henderson’s debt. Verbal testimony is inadmissible to establish a promise to pay the debt of a third party. C.C. art. 2278(3); Victory Iron Works, Inc. v. A. J. Toups Company, 261 So.2d 712 (La.App.4th Cir. 1972); and North Central Utilities, Inc. v. Sarver, 323 So.2d 173 (La.App.3d Cir. 1975). Therefore, plaintiff must rest its claim against appellants on the quoted authorization. There is nothing in this writing evincing an intent by either defendant to guarantee the debt of Henderson. Plaintiff’s position that the defendants entered into a stipulation pour autrui for the finance company pursuant to C.C. art. 1890 is untenable. This document simply protects the attorney who distributes to a third party designated by the client a portion of the funds he received belonging to the client.

For the reasons assigned, the judgment appealed from is reversed and plaintiff’s suit is dismissed. Plaintiff is to bear all costs of this litigation.

REVERSED.


text:
    Eugene N. COOKMEYER v. Joann Karl COOKMEYER.
    No. 8264.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 30, 1977.
    Rehearing Denied Sept. 9, 1977.
    Writ Granted Nov. 14, 1977.
    Gerald P. Webre, Metairie, for plaintiff-appellant.
    Walter F. Gemeinhardt, New Orleans, for defendant-appellee.
    Before REDMANN, STOULIG and MORIAL, JJ.
   REDMANN, Judge.

An ex-husband appeals from a judgment on his ex-wife’s “rule to distribute proceeds of sales” of community and separate property. The rule called for and the judgment performed a partial accounting and ordered distribution of funds from a savings and loan account.

La.C.C.P. 4605 requires the appointing of a notary public “to make the partition in accordance with law.”

Until such time as the notary’s work is completed and his proces verbal homologat-ed the ex-spouses are not entitled to any distribution of funds unless by consent of both.

The judgment appealed from is annulled and the matter is remanded for proceedings consistent with C.C.P. 4604 and following.