text:
    Ronald GRIFFIN v. Ian W. CLAIBORNE, Judge Eighteenth Judicial District Court, West Baton Rouge Parish.
    No. 62165.
    Supreme Court of Louisiana.
    May 19, 1978.
   In re: Ronald Griffin, applying for writ of mandamus. Parish of West Baton Rouge.

Writ denied.


source: Caselaw Access Project

license: Public Domain

text:
    Samuel PROCTER v. Frank BLACKBURN, Warden.
    No. 62164.
    Supreme Court of Louisiana.
    May 19, 1978.
   In re: Samuel Procter, applying for supervisory writs and certiorari.

Writ denied.


text:
    William F. CUZICK v. C. Paul PHELPS, Secretary, Louisiana Dept. of Corrections, et al.
    No. 62162.
    Supreme Court of Louisiana.
    May 19, 1978.
   In re: William F. Cuzick, applying for supervisory writs. Parish of East Baton Rouge.

Writ denied.


text:
    STATE of Louisiana v. Joseph FLANAGAN.
    No. 61950.
    Supreme Court of Louisiana.
    May 19, 1978.
   In re: Joseph Flanagan applying for writ of habeas corpus. Parish of Orleans.

Writ denied. On plea of guilty, this application’s allegations and request for relief became moot.


text:
    STATE of Louisiana ex rel. Joseph JONES, Jr. v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 61876.
    Supreme Court of Louisiana.
    May 19, 1978.
   In re: Joseph Jones, Jr., applying for remedial writ of certiorari. Parish of Jefferson.

Writ denied.


text:
    STATE of Louisiana ex rel. Tom MATTHEWS v. STATE of Louisiana.
    No. 61280.
    Supreme Court of Louisiana.
    May 19, 1978.
   In re: Tom Matthews applying for writ of mandamus. Parish of Orleans.

Denied. Moot.


text:
    STATE of Louisiana v. Leon RICHARD.
    No. 62242.
    Supreme Court of Louisiana.
    May 19, 1978.
   In re: Leon Richard applying for supervisory writs. Parish of East Baton Rouge.

Not considered. Not timely filed.


text:
    SOUTHEASTERN FIDELITY CO. v. INSURANCE CO. OF NORTH AMERICA et al.
    No. 62216.
    Supreme Court of Louisiana.
    May 19, 1978.
   In re: Insurance Company of North America, applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Evangeline.

Not considered. Not timely.


text:
    PAUL M. DAVISON PETROLEUM PRODUCTS v. L. T. BROWN, CONTRACTOR, INC., et al.
    No. 62178.
    Supreme Court of Louisiana.
    May 19, 1978.
   In re: Paul M. Davison Petroleum Products, applying for Certiorari, or writ of review, to the Court of Appeal, Second Circuit. Parish of Webster. 356 So.2d 572.

Writ granted as to Assignment 2 (legal interest), but otherwise denied.

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. Craig DAIGRE.
    No. 62174.
    Supreme Court of Louisiana.
    May 19, 1978.
   In re: Craig Daigre, applying for writs of certiorari, prohibition, mandamus and for stay order. Parish of Jefferson.

Granted.

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

It is ordered that a Writ of Certiorari issue herein, directing the Honorable Louis DeSonier, Jr., Judge of the 24th Judicial District, Court for the Parish of Jefferson, to transmit to the Supreme Court of Louisiana, on or before the 2nd day of June, 1978, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on a date to be fixed by this Court, why the relief prayed for in the petition of the relator should not be granted.


text:
    Bobby HOLMES v. Hayden J. DEES, Warden, Dixon Correctional Institute.
    No. 62163.
    Supreme Court of Louisiana.
    May 19, 1978.
   In re: Bobby Holmes, applying for writ of certiorari. Parish of Orleans.

Granted; an evidentiary hearing is ordered on this application.


text:
    STATE of Louisiana v. Terry THOMPSON.
    No. 62154.
    Supreme Court of Louisiana.
    May 19, 1978.
   In re: Terry Thompson, applying for writs of certiorari and review. Parish of LaSalle.

Granted.

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

It is ordered that a Writ of Certiorari issue herein, directing the Honorable Edwin R. Hughes, Judge of the 28th Judicial District, Court for the Parish of LaSalle, to transmit to the Supreme Court of Louisiana, on or before the 2nd day of June, 1978, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on a date to be fixed by this Court why the relief prayed for in the petition of the relator should not be granted.


text:
    STATE of Louisiana v. James LACOUR et al.
    No. 62082.
    Supreme Court of Louisiana.
    May 19, 1978.
   In re: State of Louisiana, through the District Attorney, John M. Mamoulides applying for writ of certiorari. Parish of Jefferson.

Granted.

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

It is ordered that a Writ of Certiorari issue herein, directing the Honorable H. Charles Gaudin, Judge of the 24th Judicial District, Court for the Parish of Jefferson, to transmit to the Supreme Court of Louisiana, on or before the 2nd day of June, 1978, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on a date to be fixed by this Court, why the relief prayed for in the petition of the relator should not be granted.


text:
    STATE of Louisiana ex rel. Eugene A. VERRETT v. CLERK OF COURT, CRIMINAL DISTRICT COURT.
    No. 61753.
    Supreme Court of Louisiana.
    May 19, 1978.
   In re: Eugene A. Verrett applying for Writ of Mandamus. Orleans Parish.

Granted; the clerk is ordered to present the attached application to the appropriate judge for a ruling, without further delay.


text:
    Theotis Fontenot LeJEUNE et al. v. ALLSTATE INSURANCE COMPANY et al.
    No. 61748.
    Supreme Court of Louisiana.
    May 19, 1978.
   In re: Theotis Fontenot LeJeune, et al. applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Evangeline. 356 So.2d 537.

Writ granted.

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


text:
    STATE of Louisiana ex rel. Willie WILLIAMS v. Matthew S. BRANIFF, Judge, Criminal District Court.
    No. 61558.
    Supreme Court of Louisiana.
    May 19, 1978.
   In re: Willie Williams, applying for writ of mandamus.

Granted; the district judge is ordered to act on the attached application without delay.


text:
    STATE of Louisiana ex rel. John JACKSON v. CRIMINAL DISTRICT COURT, SEC. “B”, PARISH OF ORLEANS.
    No. 61536.
    Supreme Court of Louisiana.
    May 19, 1978.
   In re: John Jackson applying for writs of mandamus, prohibition and other remedial writs. Orleans Parish.

Granted. The district judge is ordered to act on the attached application without delay.


text:
    STATE of Louisiana v. Donald James EDWARDS.
    No. 62277.
    Supreme Court of Louisiana.
    May 19, 1978.
   In re: Donald James Edwards, applying for writs of certiorari, prohibition, mandamus and review, and for stay order. Parish of East Baton Rouge.

Writ denied. Adequate remedy by appeal.


text:
    STATE of Louisiana v. Donald James EDWARDS.
    No. 62276.
    Supreme Court of Louisiana.
    May 19, 1978.
   In re: Donald James Edwards applying for writs of certiorari, prohibition, mandamus, review and stay order. Parish of East Baton Rouge.

Writ denied. Adequate remedy by appeal.


text:
    STATE of Louisiana v. Donald James EDWARDS.
    No. 62275.
    Supreme Court of Louisiana.
    May 19, 1978.
   In re: Donald James Edwards applying for writs of certiorari, prohibition, mandamus and review and stay order. East Baton Rouge Parish.

Writ denied. Adequate remedy by appeal.


author: CHIASSON, Judge.

text:
    Jonathan C. HARRIS and all other residents and taxpayers of the State of Louisiana v. The TRUSTEES OF the LOUISIANA PUBLIC FACILITIES AUTHORITY and Public Facilities Corporation et al.
    No. 11650.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 8, 1977.
    Jonathan C. Harris, Baton Rouge, for plaintiffs-appellants Jonathan C. Harris, et al.
    Fredrick L. Chevalier, Asst. Atty. Gen., State of La., Baton Rouge, for State of La., defendant-appellant.
    Steve E. Hicks, Baton Rouge, for defendants-appellees Trustees of the La. Public Facilities Corp. et al.
    Before BLANCHE, COVINGTON and CHIASSON, JJ.
   CHIASSON, Judge.

This suit is before this Court on a Rule to Show Cause why the appeal of Jonathan C. Harris, plaintiff, should not be dismissed for failure to timely perfect the appeal.

The plaintiff, individually as a resident and taxpayer of the State of Louisiana and as a representative of the class of all other residents and taxpayers of the State of Louisiana, brought an action against the Board of Trustees of the Louisiana Public Facilities Authority (LPFA), First Louisiana Development Corporation, and the State of Louisiana, defendants, challenging the constitutional validity of the LPFA and the validity of actions taken by the LPFA in authorizing the issuance of $5,725,000.00 in bonds to be sold to fund facilities and equipment for Saint Charles General Hospital in New Orleans.

A trial on the merits was held and on June 10, 1977, the District Court rendered judgment against the plaintiff. In its judgment, the District Court held in part that the LPFA was entitled to invoke the special summary procedures of the Bond Validation Act, La.R.S. 13:5121, et seq.

On June 15, 1977, the plaintiff filed a motion for a new trial. The State of Louisiana on June 17, 1977 filed a Motion for Appeal which was granted and made returnable to this Court on June 30, 1977. The motion for a new trial was heard on June 24, 1977, and, for oral reasons assigned, denied. At that time the plaintiff made an oral motion for appeal. This motion was granted by the District Court and was also made returnable to this Court on June 30, 1977.

Under the provisions of the Bond Validation Act, supra, an appeal from a final judgment of the District Court must be taken within ten days from the date on which the judgment of the District Court is entered. R.S. 13:5128. At issue in the Motion to Dismiss is whether the provisions of the Bond Validation Act are controlling in this case so that the appeal taken on June 24, 1977, fourteen days after entry of judgment, is untimely.

In holding that the provisions of the Act did apply the District Court stated:

“The defendants contend that this case can only be tried according to the special summary procedures of the Bond Validation Procedures Act, R.S. 13:5121, et seq. “For the reasons set forth in its prior ruling on exceptions by the defendants and for the reasons set forth above in these Reasons for Judgment, this court reiterates its finding that the LPFA is not a governmental unit.
“Governmental unit status is an additional benefit given to a public trust over and above those powers and rights provided by Act 135 under which the LPFA was formed. If the LPFA wishes to acquire governmental unit status as provided by Act 699, it must amend its Indenture to conform to the requirements of Act 699.
“However, after further reflection, the court notes that R.S. 9:2341 does not state that public corporations formed under Chapter 2-A of Title 9 will be governmental units, but that such trusts will be public corporations subject to certain enumerated public laws and, ‘. other general laws governing the conduct of public corporations and governmental units.’ While the LPFA, a public trust formed under Chapter 2-A of Title 9, is not a governmental unit, it is subject to the laws governing governmental units, one of which is the Bond Validation Procedures Act. Therefore, this court now holds that the LPFA is entitled to invoke the provisions of R.S. 13:5121, et seq., in further proceedings.”
Written Reasons for Judgment, VIII, pg. 27.

As was recognized by the District Court the LPFA is not a “governmental unit” as defined by R.S. 13:5121. R.S. 13:5121(2) provides a definition of “governmental unit” which was interpreted by this Court in the case of The Board of Trustees of the East Baton Rouge Mortgage Finance Authority v. All Taxpayers, Et Al., Etc., La.App., 336 So.2d 306, (1st Cir. 1976), to mean, “only the state and such political subdivisions, commissions, authorities, and other similar agencies of the state having authority to issue bonds paid from public revenue sources or secured by the pledge of the full faith and credit of the state or some political subdivision or agency of the state.”

As to the final category included in said statute, this Court held:

“. . .we note that all other entities listed in the definition of governmental unit contained in subject statute are either created or governed by the state or a parish or are agencies created pursuant to legislative act. In each of the enumerated categories the governmental unit is one which involves the public fisc in that each is an agency which issues bonds payable from public revenues or taxation, or which pledge the full faith and credit of the state or a political subdivision to further secure payment. We think it reasonable to presume that the legislature intended the concluding category found at the end of the definition of ‘governmental unit’ to refer only to districts, boards, authorities and agencies possessing the same characteristics as those previously enumerated.”

On the basis of this definition of “governmental unit”, this Court determined that the East Baton Rouge Mortgage Finance Authority, a public trust of the same nature as the Louisiana Public Facilities Corporation, a defendant in this case, was not a “governmental unit” which could invoke the provisions of R.S. 13:5121, et seq.

Defendants contend that R.S. 13:5121(2) has been tacitly amended since the decision in the East Baton Rouge Mortgage Finance Authority case by Act 699 of the 1976 Regular Session of the Legislature amending the Louisiana Public Trust Act to make such public trust subject to the laws governing “governmental units” of the State of Louisiana.

A careful review, without going into too much details on this Motion to Dismiss, of Act 699 of the 1976 Regular Session, does not indicate any intent of the Legislature to amend R.S. 13:5121, et seq., or the jurisprudence contained in the East Baton Rouge Mortgage Finance Authority case. At this time we will note only that R.S. 9:2344(B) provides:

“Any obligations issued by a public trust under this Chapter shall not constitute or create any debt or debts, liability or liabilities or a loan of the credit of or a pledge of the faith and credit of the beneficiary of the state or any political or governmental unit thereof but shall be solely the obligation of the public trust.”

Further, the provision that trusts created pursuant to R.S. 9:2341 will be public corporations subject to certain enumerated public laws and, “. . . other general laws governing the conduct of public corporations and governmental units” (emphasis added) does not subject such trusts to the general laws governing “governmental units”, as contended by mover herein.

We, therefore, conclude that the special summary procedures of the Bond Validation Act do not apply in this case and that the appeal was timely taken.

The Motion to Dismiss the appeal is denied.

MOTION DENIED.

      . R.S. 13:5121(2) provides:
      “ ‘Governmental unit’ means the State of Louisiana, municipalities, parishes, parish and municipal school boards and districts, levee boards and districts, housing authorities, bridge authorities, community improvement agencies, redevelopment agencies, all other political subdivisions of the state, units of local government and nonprofit corporations created by or governed by the governing authorities of parishes or municipalities, any special service districts, such as water, sewerage, garbage and lighting districts created by or pursuant to legislative acts and any other districts, boards, authorities, and agencies of the State of Louisiana authorized to issue bonds.”


author: LOTTINGER, Judge. PONDER, Judge,

text:
    T. D. SPILLER, Jr. v. Peggy Mattingly HERPEL, Individually and as Testamentary Executrix of the Succession of Ama Spiller Mattingly.
    No. 11637.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 21, 1977.
    Writ Refused Nov. 4, 1977.

      See also, La.App., 357 So.2d 572.
    Davis A. Gueymard and James H. Hynes, Baton Rouge, for plaintiff and appellant.
    Donald L. Peltier, Peltier & Peltier, Thi-bodaux, for defendant and appellee.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   LOTTINGER, Judge.

On July 16, 1977, this court issued a show cause order as to why this appeal should not be dismissed for an untimely filing of the appeal bond.

Judgment was signed on February 10, 1977, with notice of judgment being mailed on March 2, 1977. Without applying for a new trial, the motion and order for a devol-utive appeal was signed on April 28, and filed on April 29, 1977. On May 5, 1977, a cashier’s check in the amount of the devolu-tive appeal bond was forwarded by certified return receipt requested mail to the clerk of the trial court, and the envelope containing the correspondence as well as the cashier’s check was received as undelivered by counsel for the appellant on May 11, 1977. On the same day, bond was reposted to the clerk of the trial court by certified mail, received and filed in the record on May 12, 1977.

Considering that the notice of judgment was mailed on March 2,1977, and no motion for a new trial was requested, the last day for obtaining a devolutive appeal and posting the bond was May 10, 1977.

By brief in response to the show cause order, appellant argues that the initial mailing of the cashier’s check representing the devolutive appeal bond was mailed timely and delivered to the clerk of the trial court prior to May 10, 1977, but delivery was refused because of insufficient postage. This apparent error occurred because of the use of a Postal Department form that was apparently outdated, though same had been used by appellant’s counsel many times during the months immediately preceding this particular mailing, without any returns.

The timely filing of the appeal bond is jurisdictional. Something Irish Co. v. Rack, 333 So.2d 773 (La.App. 1st Cir. 1976).

It is well settled that appeals are favored and are to be dismissed only when clearly required by law.

Because of this well settled rule, we are convinced that every effort should be made to maintain an appeal rather than dismiss it, and where there is any doubt, same should be resolved in favor of maintaining the appeal.

The appellee in response to the show cause order contends that since the appeal bond was not filed until after May 10, 1977, the appeal must be dismissed. The appellee does not dispute the facts contained in the affidavits submitted in support of appellant’s response to the show cause order.

We know of no rule that requires the clerk of the trial court to accept mail when there is insufficient postage, thus necessitating the payment of overdue postage, hence, we find no fault on the part of the trial court clerk in refusing the initial letter.

We are convinced that the office of counsel for appellant used its accustomed practice in computing the necessary postage, not realizing that certified postage had increased in April and July, 1976. This is not a situation of the Postal Department returning appellant’s letter without attempting delivery or without some proof of delivery and refusal, nor is this a situation of no postage at all being placed on the envelope. We are here only concerned with the facts presented in this case, and it is obvious that every effort was made by appellant to perfect this appeal timely.

It is not the act of marking a pleading or other instrument as “filed”, but rather the delivery to the appropriate receiving official that constitutes the filing. Lambert v. Kelley, 270 So.2d 532 (La.1972) and Roby v. Leonard, 209 So.2d 182 (La.App. 1st Cir. 1968).

Therefore we are of the opinion that the appeal was perfected when the certified letter containing the cashier’s check was delivered to the office of the clerk of the trial court on or prior to May 10, 1977. We limit, however, this decision to the facts of this particular case.

Therefore, for the above and foregoing reasons the show cause order is recalled and vacated.

ORDER RECALLED AND VACATED.

PONDER, Judge,

dissenting.

I cannot agree that the cashier’s check representing the devolutive appeal bond was delivered to the Clerk of Court before the deadline, since the post office refused delivery when the clerk would not pay the postage due. I therefore dissent.


author: PER CURIAM.

text:
    AMFAC DRUG SUPPLY CO. v. William A. DRAGO, d/b/a Nottingham Pharmacy, et al.
    Nos. 11818, 11833.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 2, 1977.
    Rehearing Denied Jan. 23, 1978.
    Writ Granted March 2, 1978.

      Robert F. Fadaol, Gretna, for appellant.
    Patrick F. McGrew, Baton Rouge, for ap-pellees.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   PER CURIAM.

This appeal is being dismissed because of appellant’s failure to pay court costs and filing fee in accordance with the last paragraph of LSA-C.C.P. 2126, as amended, not for failure to pay the estimated costs under the first two paragraphs. Appellant has been given benefit of these delays; the transcript was prepared and filed in the record on August 16, 1977, without waiting for the payment of the estimate of costs. These omissions on the clerk’s part are therefore irrelevant. On September 20, well before the return day of October 4, the clerk called Amfac’s attorney’s office and left a message with his secretary giving the amount of costs. Appellant had failed to pay on October 4, so the clerk in accordance with the duty imposed on him, asked the court for an extension. The court denied the request. On these facts we cannot say the court abused its discretion.

Appellant knew of the return date and of his duty under LSA-C.C.P. 2126 to pay all costs prior to that time. Even at that the clerk attempted to secure an extension and failed.

This is not a case like Davidge v. Magliola, La., 346 So.2d 177, or Hawthorne v. Slaydon, 351 So.2d 1231 (La.App. 1st Cir., 1977), reversed La., 353 So.2d 286 (1977). The clerk here has presented the matter to the court.

REHEARING DENIED.

      . LSA-C.C.P. Art. 2126
      “The appellant shall pay to the clerk of the trial court, not later than twenty days after the granting of the order of appeal, all costs as estimated by said clerk for the preparation of the record on appeal, and the filing fee required by the appellate court to lodge the appeal.
      “The twenty-day limit may be extended once for not more than twenty additional days by the district judge. Such extension shall be in written form.
      “Any difference between the estimated costs and the actual costs shall be remitted by the clerk of the trial court or paid by the appellant, as the situation may require, not later than three days prior to the return day or extended return day.
      Amended by Acts 1976, No. 708, § 2.”


author: SCHOTT, Judge. PER CURIAM.

text:
    Andrew BROWN v. W. C. DRENNAN et al.
    No. 8778.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 13, 1977.
    On Rehearing Jan. 11, 1978.

      See also, La.App., 359 So.2d 715.
    William A. Summers, III, Metairie, for plaintiff-appellant.
    Montgomery, Barnett, Brown & Read, Charles A. Boggs, New Orleans, for interve-nor-appellant.
    Hammett, Leake, Hammett, Hulse & Nelson, Robert E. Leake, Jr., New Orleans, for defendants-appellees.
    Before LEMMON, SCHOTT and BEER, JJ.
   SCHOTT, Judge.

We previously denied a motion filed by appellee to dismiss this appeal for lack of jurisdiction, 347 So.2d 955. That opinion was specifically overruled by the court en banc in Martin v. Parish of Jefferson, La. App., 351 So.2d 1316 (1977, No. 8717 on our docket). We therefore have reconsidered whether or not we have jurisdiction over this appeal, and under the rationale of this court in the Martin case we have concluded that we have none.

Accordingly, the appeal is dismissed.

APPEAL DISMISSED.

ON REHEARING

PER CURIAM.

We have granted the application for rehearing filed by United States Fidelity & Guaranty Company, intervenor, and applicant in order to clarify our judgment of December 13, 1977.

As can be seen by reference to our earlier opinion at 347 So.2d 955, the intervenor perfected a timely appeal, so that it was not our intention to dismiss its appeal but only the appeal attempted to be taken by plaintiff.

Accordingly, the appeal of the intervenor, United States Fidelity & Guaranty Company is properly within the jurisdiction of this court and is hereby maintained, and our judgment of December 13, dismissing the appeal, is restricted to the appeal taken by plaintiff-appellant.

REHEARING GRANTED, APPEAL OF INTERVENOR MAINTAINED.


author: LANDRY, Judge.

text:
    LAWYERS TITLE INSURANCE COMPANY v. CAREY HODGES & ASSOCIATES, INC., and Paul J. Morel.
    No. 11758.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 13, 1978.

      Paul M. Hebert, Baton Rouge, of counsel for plaintiff-appellant Lawyers Title Insurance Corp.
    Jack Roberts, Jr., Baton Rouge, of counsel for defendant-appellee Carey Hodges Associates, et al.
    Before LANDRY, SARTAIN and ELLIS, JJ.
   LANDRY, Judge.

Lawyers Title Insurance Company (Appellant) subrogee of its insured, Lowe’s Companies, Inc. (Lowe’s), appeals dismissal of its subrogated demand against defendants Carey Hodges &'Associates, Inc. (Surveyor) and Surveyor’s employee Paul J. Morel, for .reimbursement of a claim paid Lowe’s pursuant to a policy of title insurance issued by Appellant covering a parcel of land purchased by Lowe’s on the strength of a survey by Surveyor. The survey erroneously located drainage facilities on Lowe’s land which in reality were on neighboring land. Relying on the survey, Lowe’s planned its drainage to utilize the facilities indicated as being on its property. The error was discovered after Lowe’s installed its drainage. The work installed by Lowe’s had to be removed and new facilities constructed. The trial court found that Surveyor made a mistake but that a mistake does not necessarily constitute actionable negligence and rejected Appellant’s demand on the ground that Appellant failed to produce expert testimony to establish Surveyor’s negligence by showing that Surveyor failed to exercise the degree of skill and care exercised by other surveyors in the vicinity. We reverse and render judgment for Appellant.

Subject property fronts on a service road running along and parallel to the north side of Florida Boulevard in Baton Rouge, which thoroughfare is subject to the jurisdiction of the State Department of Highways. Surveyor’s plat, dated July, 1973, shows a 24" reinforced concrete pipe situated in the southwest corner of Lowe’s property beginning at the south property line and lying approximately one foot east of Lowe’s western boundary. The pipe was in fact one foot inside the east boundary line of Lowe’s adjoining owner Howard J. Brink-haus. The plat also shows three catch basins, each measuring 3' X 4', and a 24" pipe lying within the highway right of way parallel to Lowe’s front property line.

Lowe’s intended to use the land for a large retail outlet. Prior to purchasing the location, Lowe’s had the property inspected by its design and construction Engineer, Ken Canter. With Surveyor’s plat in hand, Canter went on the property and observed the drainage facilities existing in the highway right of way, including the 24" drain pipe and some catch basins. He also saw the drain pipe which Surveyor’s plat indicated was located on the land which Lowe’s proposed to purchase. Fearing that there might be a drainage problem, Canter contacted representatives of the Highway Department and was told emphatically that no additional drainage would be permitted to empty into the Department’s existing facilities. After careful study of the situation, Canter concluded that the drain pipe shown on Surveyor’s plat was adequate to drain the property Lowe’s intended to buy. He then gave his approval of the purchase. Lowe’s then purchased the land and began construction in November, 1973. The work included a drainage system consisting of curbs, gutters, catch basins and other facilities designed to channel water from Lowe’s premises into the drainage system within the highway right of way via the drainage pipe shown on Surveyor’s plat. Lowe’s completed its project in early July, 1974, and scheduled the opening of its new store for July 26, 1974. On July 2, 1974, Lowe’s first received notice, in the form of a letter from Brinkhaus, that Lowe’s had erroneously utilized drainage facilities located on Brinkhaus’ land. On July 12, 1974, Lowe’s received a letter from Charles Hair, Chief Engineer of the City-Parish Government, informing Lowe’s that Brinkhaus’ complaint was being investigated. Before Lowe’s could open its store, it had to have an occupancy permit from the City-Parish Government. It was made plain to Lowe’s that the permit would not be forthcoming until the drainage problem was solved. Lowe’s then requested bids from several contractors, including its on-the-job contractor, to perform the work necessary to remedy the error. Lowe’s on-the-job contractor submitted a low bid of $8,983.00. On July 19, 1974, Lowe’s deposited a cash bond of $8,983.00 with City-Parish authorities as a good faith deposit to insure performance of the remedial work. Lowe’s also requested and, on July 22, 1974, was granted a permit by the Department of Highways to install a catch basin within the highway right of way to drain into the Department’s system.

The curative work involved removal of the encroachment from Brinkhaus’ land. This necessitated a complete revamping of the original drainage plan including removal and relocation of curbing, installation of more than 200' of pipe, construction of catch basins, removal of some asphalt paving, reworking a sewerage treatment plant, seeding, landscaping and miscellaneous clean up. The contractor submitted to Lowe’s a bill for $8,215.00 which Lowe’s paid and which amount is the sum sought herein.

Relying upon Charles Carter & Company, Inc. v. Edward C. McGee, Jr., 213 So.2d 89 (La.App. 1st Cir. 1968), and Pittman Construction Company, Inc. v. City of New Orleans, 178 So.2d 312 (La.App. 4th Cir. 1965), the trial court held that to recover, plaintiff must prove: (1) defendant owed plaintiff a duty; (2) defendant breached the duty in a negligent manner; and, (3) the breach caused plaintiff’s loss. Despite Surveyor’s admission of the error, the trial court concluded that a mistake is not necessarily negligence, and Appellant failed to establish negligence by expert testimony, showing that Surveyor did not exercise the degree of care and skill required by the surveying profession in the vicinity.

We disagree with Appellant’s contention that the doctrine of res ipsa loquitur is applicable herein. The doctrine urged is a rule of evidence to be applied at the termination of a case when all evidence has been submitted. It may then be invoked only when all the facts fairly and reasonably lead to the conclusion that defendant was negligent in some manner, thus placing on defendant the burden of explanation and exculpation from an inference of negligence. Larkin v. State Farm Automobile Insurance Company, 233 La. 544, 97 So.2d 389 (1957); Boudreaux v. American Insurance Company, 262 La. 721, 264 So.2d 621 (1972).

In Pittman Construction Company, Inc., above, the court held that liability of an engineer is determined by the same rules applicable to architects, physicians and other professionals. The court also held that the test of liability is whether the engineer performed with the same degree of skill and care exercised by others in the same profession in the same general area and that proof of failure so to do rests upon plaintiff. Additionally, the court held that the mere undertaking of a project by an engineer implies possession of the skill and expertise to perform the required service at least ordinarily and reasonably well and the application of such skill reasonably and without neglect.

Charles Carter & Company, Inc., above, concerned a surveyor who allegedly miscalculated the location of certain building pilings. The surveyor was exonerated from fault. We reaffirm our holding in Charles Carter & Company, Inc. that surveyors are expected to perform with the same degree of care and skill exercised by others in the profession in the same general area. Ordinarily, proof of lack of such skill and care or proof of failure to exercise such skill and care in a given instance rests upon plaintiff. We deem it reasonable, however, to except from the general rule those instances when the conduct of a surveyor may be so unprofessional, so clearly improper, and so manifestly below reasonable standards dictated by ordinary intelligence, as to constitute a prima facie case of either a lack of the degree of skill and care exercised by others in the same general vicinity or failure to reasonably exercise such skill and care. We find the omission of a visible drainage structure from a surveyor’s plat to fall within the exception. No profession may, by adopting its own standards of performance, method of operation, or paragons of care, insulate itself from liability for conduct which ordinary reason and logic characterize as faulty or negligent. See Favalora v. Aetna Casualty and Surety Company, 144 So.2d 544 (La.App. 1st Cir. 1962). Having failed to refute the prima facie showing made by Appellant, Surveyor must respond in damages.

Surveyor contends Appellant suffered no damage or loss because Appellant was allowed to drain its lands into the Department of Highway’s facilities in the highway right of way. We answer this argument by noting that Appellant relied on Surveyor’s representations and planned its drainage to utilize facilities presumably located on Appellant’s own premises, but which were in fact on adjoining lands. The funds expended, predicated on Surveyor’s error, were wasted because the original works had to be removed, replanned, relocated and reconstructed at additional cost to Appellant. But for Surveyor’s mistake, Appellant would not have incurred the additional cost.

We likewise find no merit in Survey- or’s contention that Surveyor was not accorded opportunity to correct the mistake, and that the remedial work could have been performed at less expense. In this instance, time was of the essence. Appellant had scheduled its opening date within a few days of discovery of the error. Delay in opening would undoubtedly have been costly to Appellant. We note that Appellant sought to protect itself and Surveyor from excessive cost by advertising for bids for the curative work required. The ultimate cost proved less than the lowest bid received.

The doctrine of avoidable consequences requires an injured party to take reasonable steps and exercise ordinary prudence to minimize his damages. Unverzagt v. Young Builders, Inc., 252 La. 1091, 215 So.2d 823 (1968). Full consequences of an injury are recoverable where the injured party exercises that degree of care and diligence in minimizing damages as would be taken by an ordinarily prudent individual under the same or similar circumstances. Reasonable care depends upon the circumstances attending each particular case, including time, knowledge, opportunity, exposure to further loss and the expense required to avoid reasonably foreseeable loss. Unverzagt, above.

We find that Appellant acted with reasonable prudence, caution, dispatch and diligence under the circumstances. Its imminent opening date made immediate action absolutely imperative. Appellant took every reasonable precaution available under the circumstances to minimize loss to itself as well as the cost of the curative work. Surveyor may not complain because Appellant reasonably mitigated damages for which Surveyor is liable.

It is ordered, adjudged and decreed that the judgment of the trial court be and the same is hereby reversed and set aside and judgment rendered herein in favor of plaintiff Lawyers Title Insurance Company and against defendants Carey Hodges & Associates, Inc., and Paul J. Morel; in solido in the sum of $8,215.00, with legal interest thereon from date of judicial demand, until paid, and all costs of these proceedings.

Reversed and rendered.


author: SARTAIN, Judge.

text:
    Dr. Norman S. HUNT, Plaintiff-Appellee, v. J. Leo BOWIE, Defendant-Appellant.
    No. 11737.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 13, 1978.
    Thomas L. Wright, Houma, for plaintiff and appellee.
    Jeffrey J. Himel, Jr., Houma, for defendant and appellant.
    Before LANDRY, SARTAIN and ELLIS, JJ.
   SARTAIN, Judge.

Plaintiff, Dr. Norman S. Hunt, brought this action for declaratory judgment against defendant, J. Leo Bowie, alleging that a purported counter letter filed of record by defendant was creating a cloud on the title of certain immovable property which he owned. He prayed for a judgment declaring the purported counter letter to be null and void. He further prayed to be declared owner of the immovable property in question. After trial the trial judge held in favor of plaintiff, awarding him the relief prayed for. We affirm.

The facts are basically undisputed and can be briefly stated. On September 1, 1971, Leo Bowie and Norman S. Hunt, Jr., plaintiffs son, signed a letter which provided as follows:

September 1, 1971
Mr. Joseph Leo Bowie
176 Camelia Drive
Thibodeaux, Louisiana
RE: Purchase E.R.T. Marquette property in Gray, Louisiana which 10 acres are to be sold to the partnership consisting of Dr. Norman S. Hunt, Leo Bowie and Norman S. Hunt, Jr.
Dear Mr. Bowie:
In reference to the captioned property, this is to acknowledge that your interest in the purchase of the property located in Gray, Louisiana is 50% of the land and the profits and liabilities thereof.
That although the purchase will be made in the name of Norman S. Hunt, Jr., this letter is to certify your interest in the property which will be more particularly described in the act of sale.
Hunt Association.
(/a/) Norman S. Hunt Jr.
NORMAN S. HUNT, JR.
f/s/) Leo Bowie
Leo Bowie

The letter was notarized by E. Howard MeCaleb, III, Notary Public.

On September 10,1971, Norman S. Hunt, Jr., d/b/a Hunt & Associates, purchased certain property described as

A certain tract of land situated in the Parish of Terrebonne, Louisiana located in Section 4, T 16 S, R 16 E, Terrebonne Parish, Louisiana measuring Two hundred fifty-four (245') feet front more or less on the west side of Louisiana Highway No. 24, by depth of One Thousand eight hundred fifty-five feet (1,855'), more or less between parallel lines; and being all of the remaining property of Merlin Robichaux, bounded East by Louisiana Highway No. 24, North by Garden of Memories Cemetary, South by the center line of Block Two (2), Block Three (3) and Block Four (4) of Fairlane Subdivision or a projection of said center line in a westerly direction, as said line is shown on á plan of Fairlane Subdivision or a projection of said center line in a westerly direction, as said line is shown on a plan of Fairlane Subdivision made by Bobby F. Warren, C.E., of record in COB 308 folio 584 of the records of Terrebonne Parish, and bounded westerly by a prolongation of the westernmost boundary line of the rearmost proposed lot as shown on the plan of Fairlane Subdivision/ being all of the property enclosed within the points A, B, C, and D on the plat of survey (2 sheets) recorded in the Clerk’s Office, Terrebonne Parish, Louisiana, under Entry No. 260395, together with all rights, ways, privileges and servi-tudes thereunto belonging or in anywise appertaining.
LESS AND EXCEPTING: That property sold by Merlin J. Robichaux and wife to Joseph D. Naquin by act dated July 16, 1962 recorded in COB 340 folio 293 of the records of Terrebonne Parish, Louisiana.

from E. R. T. Marquette for a stated price of $36,000.00. The sum of $3600.00 was paid in cash and the remainder was represented by a promissory note secured by a mortgage on the property. The original act of sale with mortgage in authentic form was filed for record September 10, 1971.

Leo Bowie filed the September 1, 1971, letter for record on May 22,1972. Plaintiff purchased the mortgage note from Mr. Marquette on August 27, 1973, for approximately its face value with accrued interest. No payments had been made on the note at that time and Mr. Marquette was threatening foreclosure. Subsequently, Dr. Hunt and his son entered into a dation en paiement whereby Hunt, Jr. transferred the property in question to his father who in return cancelled the indebtedness represented by the promissory note secured by the mortgage. This act was passed in authentic form on October 4, 1971, and filed for record on October 7.

In this action, plaintiff asserts that the purported counter letter is void as to third parties relying on the public records because the property description is inadequate and because it is an act under private signature recorded without being acknowledged pursuant to C.C. Art. 2253. It is true that Art. 2253 appears to declare that an act under private signature not duly acknowledged has no effect on third parties even though recorded. But the jurisprudence of this state holds that a recorded act gives notice to third parties even if it is not acknowledged or proved prior to recordation pursuant to Art. 2253. Stallcup v. Pyron, 33 La.Ann. 1249 (1881). However, in the instant case it is immaterial that the letter is unacknowledged because we find that the property description contained in the letter itself is so inadequate that it cannot be held to properly place third parties on notice.

The letter refers simply to the “E. R. T. Marquette property in Gray, Louisiana which [contains] 10 acres.” The act includes no reference to the legal subdivision description of the land. The rule is that when this is the case the act will be considered as not giving notice to third persons unless there is “reference to any deed, map,, plat, patent, survey, or boundary by which the description may be ascertained.” Baldwin v. Arkansas-Louisiana Pipe Line Co., 185 La. 1051, 171 So. 442 (1936); Cattle Farms, Inc. v. Abercrombie, 211 So.2d 354 (La.App. 4th Cir. 1968). It is true that the letter in question refers to an act of sale which will be in the name of Norman S. Hunt, Jr., as vendee. However, it is impossible to say that the act of sale referred to is the sale between Marquette and Hunt. The property descriptions are very dissimilar. The name of the vendor is not given in the letter. In the act of sale the property is not referred to as the E.R.T. Marquette property. In order for a reference to a description in another act to be sufficient the act referred to must be ascertainable. Here it is not. We therefore find that the purported counter letter does not affect third parties and affirm the decision of the trial court that it is null and void as to Dr. Norman S. Hunt.

The trial judge also declared Hunt to be the owner of the property. In a declaratory judgment action in which the issue of ownership of immovable property is presented, C.C.P. Art. 3654 establishes the burden of proof. The article provides:

When the issue of ownership of immovable property or of a real right is presented in an action for a declaratory judgment, or in a concursus, expropriation, or similar proceeding, or the issue of the ownership of funds deposited in the registry of the court and which belong to the owner of the immovable property or of the real right is so presented, the court shall render judgment in favor of the party:
(1) Who would be entitled to the possession of the immovable property or real right in a possessory action, unless the adverse party makes out his title thereto; or
(2) Who proves better title to the immovable property or real right, when neither party would be entitled to the possession of the immovable property or real right in a possessory action.

In this case neither party alleged possession or put on any evidence as to who was in possession. Therefore, if this had been a possessory action neither party would have been .entitled to judgment. Therefore, under Art. 3654(2) plaintiff’s burden of proof is simply to show “better title.” This he has done. He has introduced into evidence a certified copy of a dation en paiement from his son. This un-contradicted evidence is prima facie proof of his ownership. Harrison v. Alombro, 341 So.2d 1165 (La.App. 1st Cir. 1976), writ denied 343 So.2d 1063 (La.1977). The only evidence of defendant’s ownership is the purported counter letter from Norman S. Hunt, Jr. which has been found to be null and void as to plaintiff. Therefore we find that plaintiff has proven “better title” than defendant. The judgment is affirmed at appellant’s cost.

AFFIRMED.

       For the purposes of clarification, it is expressly stated that the property hereinabove described includes Lots Nos. Thirteen (13) through Twenty-seven (27) of Block No. Five (5) and Lots. Nos. Fourteen (14) through Twenty-six of Block No. Four (4) of Addendum No. One (1) to Fairlane Subdivision as shown on plat thereof dated August, 1962 by Bobby F. Warren, C.E., recorded in COB 347 at folio 263 and that said property further includes all streets or portions of streets as may be located within the boundaries of said Addendum.


text:
    Roy BOWIE d/b/a Bowie’s Package Liquor, Plaintiff-Appellant, v. ALFORD ALARM PROTECTION SERVICE, INCORPORATED, Defendant-Appellee.
    No. 11738.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 13, 1978.
    Raymond L. Simmons, Baton Rouge, of counsel for plaintiff-appellant Roy Bowie, Etc.
    Samuel A. Bacot, Baton Rouge, of counsel for defendant-appellee Alford Alarm Protection Service, Inc.
    Before LANDRY, SARTAIN and ELLIS, JJ.
   SARTAIN, Judge.

Plaintiff instituted this suit for damages arising out of the burglary of his place of business, Bowie’s Package Liquor. He appeals from an adverse judgment.

Prior to the incident giving rise to this litigation, plaintiff entered into a contract with defendant, whereupon the latter was to furnish and install a burglar alarm system. The unit consisted of a bell and dialer device. Contact points were established at the front and rear doors, side window, and safe at the business establishment. If any contact point was disturbed (broken), the bell was to sound a continuous loud ringing noise and the dialer was to effect a telephone alarm to plaintiff’s home and the sheriff’s nearby substation.

On the morning of the burglary (4:40 A.M.), the burglars gained admission by sawing out the bottom panel of the wooden rear door, just beneath the contact point. They placed plaintiff’s safe in .a tub and made their exit through the same opening. When the safe was removed it triggered the alarm. However, because of a faulty power pack, the bell emitted only a soft buzzing sound. The dialer device signaled plaintiff at his home and the sheriff’s substation.

The sheriff’s deputies testified that they arrived at the scene within two minutes of the call. Plaintiff testified that he was only two minutes away from his place of business and when he arrived the deputies were already there. The tub was found near a neighbor’s home but the safe was never recovered. This suit is for the value of the safe and its contents.

The contract between the parties contained the following clause:

“The amounts payable by the Subscriber are not sufficient to warrant Alford assuming any risk of consequential or other damages to the Subscriber due to Alford’s negligence or failure to perform. The Subscriber does not desire this contract to provide for the liability of Alford and Subscriber agrees that Alford shall not be liable for loss or damage due directly or indirectly to any occurrence or consequences therefrom, which the service is designed to detect or avert.”

Plaintiff strenuously argues that the trial court erred when it failed to hold that the above quoted disclaimer clause is contrary to public policy. Plaintiff contends that such a clause renders the contract one of adhesion and that liability should be imposed on the defendant for its failure to supply the services for which it contracted.

While the trial court did uphold the validity of the clause, its decision is based on the finding that the malfunction of the bell was not a cause-in-fact of plaintiff’s loss. We quote with approval the following pertinent portions of the district judge’s reasons for judgment:

“Plaintiff contends that the loss his business sustained as a result of the burglary was caused by the malfunction of the ringing device. It is his contention that had the bell rung, persons nearby would have been alerted and would have taken action to notify the police and/or apprehend the culprit. In this regard, however, this Court finds that the police had already been notified of the break in by the dialer system of the alarm itself. And, since they were on the scene within two minutes of such notice, actions of neighbors alerting them would have been superfluous. Further, the testimony introduced at trial of neighboring residents indicates that the most any of them would have done would have been to alert the police. None of them testified that they themselves would have made any personal attempts toward apprehension of the culprit. Some even testified that they had not even heard the bell system when it did function on the occasion of a burglary at Bowie’s the year before.
“This Court finds that the most advantageous result which could have resulted had the alarm bell rung and been heard by neighbors is that perhaps some of these neighbors would have looked outside and seen the culprit’s flight and later been able to provide some sort of identification to aid the police investigation. Also, perhaps the ringing of the alarm system would have frightened the burglar himself causing him to abort his mission. But these possibilities are purely speculative at most and the Court is of the opinion that the plaintiff has been unsuccessful in shouldering the burden of proving that the bell system’s failure was a substantial cause-in-fact of his loss. The fact is that the dialer worked and the police were at the scene within two minutes of the alert. There is no indication that the alarm would have produced more impressive results.”

The issue as to the validity of the disclaimer clause is immaterial to a resolution of the dispute between the parties and we therefore pretermit any discussion thereof.

For the above reasons, the judgment of the district court is affirmed at plaintiff’s cost.

AFFIRMED.

      . A similar clause was held to be valid in Alan Abis, Inc. v. Burns Electronic Security Serv., Inc., 283 So.2d 822 (La.App. 2nd Cir. 1973).


text:
    Daniel Adam DELATTE, Plaintiff-Appellant, v. Doris Soudelier DELATTE, Defendant-Appellee.
    No. 11746.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 13, 1978.
    George J. Ledet, Jr., Cut Off, for plaintiff and appellee.
    Darryl J. Carimi, Gretna, for defendant and appellant.
    Before LANDRY, SARTAIN and ELLIS, JJ.
   SARTAIN, Judge.

Defendant-in-rule, Daniel Adam Delatte, has brought this appeal from a judgment ordering that the custody of his two minor daughters be shifted from him to his former wife, Doris Soudelier Delatte. Daniel and Doris Delatte were married on July 5, 1967. Two daughters were born of their marriage: Rona, now age seven, and Danielle, now age six. Daniel and Doris lived together until October, 1972. On March 11, 1975, Daniel filed a suit for divorce based upon two years living separate and apart. He was granted a divorce on September 17, 1975. Doris was granted legal custody over the children at this time; they had been living with her since October, 1972. Doris and Daniel both subsequently married second spouses. In November, 1976, they appeared before an attorney and signed a consent judgment transferring custody of the children to Daniel. The consent judgment was presented to the judge as a joint motion and order and was duly signed on December 2, 1976. On May 3, 1977, Doris filed the present rule to change custody. After trial, judgment was rendered ordering the custody of Rona and Danielle transferred to their mother. We affirm.

We first must determine what burden of proof to impose on plaintiff-in-rule to obtain a change in custody. Appellant does not dispute that the so-called “double burden” is inapplicable because the judgment of December 2, 1976, was not a considered determination. Gulino v. Gulino, 303 So.2d 299 (La.App. 1st Cir. 1974). He argues, however, that even an uncontested award of custody should not be modified absent a change in circumstances. We are aware of no authority specifically requiring changed circumstances and appellant has not cited us to any. We choose not to adopt any such new and inflexible rule in child custody cases. In fact, the most recent jurisprudence recognizes that “rules” such as the “double burden” itself are not inflexible criteria but rather guides to determining the best interest of the child. McCarstle v. McCarstle, 356 So.2d 491 (La.App. 1st Cir. 1977) (No. 11,641 on our docket).

Appellant also urges that the trial judge erroneously applied a strict maternal preference rule. Since the trial judge did not assign reasons for his judgment we are unable to determine to what extent, if any, his decision was based on a maternal preference rule. Although it has often been stated that the mother has a paramount right to the custody of her children and that she should be awarded custody absent exceptional circumstances, e. g., Fulco v. Fulco, 259 La. 1122, 254 So.2d 603 (1971), the more recent and better view is that the paramount consideration is always the best interest of the child. Nethken v. Nethken, 307 So.2d 563 (La.1975); Stevens v. Stevens, 340 So.2d 584 (La.App. 1st Cir. 1976).

We will not presume that the trial judge gave the children to the mother contrary to their best interest. A finding that under the facts of this ease the best interest of the children would be served by granting custody to their mother is not an abuse of discretion, Although the father is better off financially, his job requires that he be absent from home for extended periods of up to twenty days per month. The mother was shown to have written several checks with insufficient funds and to have had marital problems in her second marriage. However, by the time of trial, both of these problems had been corrected. Both parents were shown to love the children and to be able and willing to provide them with a good home. Since, under such a state of the facts, a judgment awarding custody to the mother is not an abuse of discretion, we affirm the judgment of the trial court at appellant’s cost.

AFFIRMED.


author: ELLIS, Judge:

text:
    Joel MESSER v. DEPARTMENT OF CORRECTIONS, LOUISIANA STATE PENITENTIARY.
    No. 11318.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 13, 1978.

      Phillip T. Hager, New Orleans, for appellant Joel Messer.
    Thomas H. Matuschka, Baton Rouge, for appellee.
    Before LANDRY, SARTAIN and ELLIS, JJ.
   ELLIS, Judge:

Joel Messer was fired from his position as Food Service Manager III at Louisiana State Penitentiary at Angola effective the close of business August 4, 1975. His appeal to the Civil Service Commission was denied on September 27, 1976, and he has appealed to this Court.

The record shows that Mr. Messer was first employed on December 13, 1965, as Food Service Manager at the Penitentiary. The position was reallocated to Cafeteria Manager III on August 1, 1966, and to Corrections Food Manager III on August 1, 1969, without any substantial change in his duties. The latest job description, dated February 1,1971, and signed by Mr. Messer, is as follows:

“This position is located at the Louisiana State Penitentiary and involves responsibilities under the general supervision of the Ass’t. Business Manager, for managing the prison culinary department. This entails planning, directing, and controlling all operations necessary to the preparation and service of approximately 12,000 meals per day.
Specific duties and responsibilities are as follows:
“15% Preparing menus and special diets for approximately 4,000 inmates and free personnel with consideration given to such factors as budgetary limitations, availability of farm grown produce, and nutritional requirements of inmates performing rather strenuous tasks.
“50% Coordinating and directing the work of Corrections Stewards III who are responsible for seeing that inmates are performing their food preparation and service duties in a sanitary, efficient, and economical manner.
“10% Revising and evaluating portion standards for all goods served throughout the prison complex, making studies of the food conservation program, and establishing new procedures and policies to minimize waste.
“10% Supervising the requisitioning of food supplies, taking into consideration such factors as current costs, budget allotments, inventories, ordering and shipping time, adopted portion standards and number of meals served, approving these requisitions before submission to the business office for purchasing, and supervising the receipt and inspections indicated on the purchase orders.
“ 5% Conducting studies to determine the capabilities and adequacy of all food service equipment and facilities, arranging for the purchase of new equipment and building materials, and inspecting and giving final approval for equipment and materials received before payment is made.
“ 5% Assisting in preparing the annual budget by providing itemized statements of estimated expenditures for food, supplies, and equipment, supervising the maintenance of a perpetual inventory of food and supplies, listing the cost and amount of each item received, used, and on hand, and preparing a report illustrating all culinary expenditures in detail.
“ 5% Performing related work as assigned.”

On June 23, 1975, there was a purported food poisoning incident at the Penitentiary. The then Warden told Colonel Jeff D. Smith, Jr., the Business Manager at Angola and Mr. Messer’s immediate supervisor, to keep Mr. Messer away from the food service operation. On the same day, the Warden issued a memorandum putting a Captain Mayeaux in charge of the food operation.

On June 26, 1975, the Warden told Colonel Smith that he did not care what was done with Mr. Messer, but he was not going to let him back in the kitchen operation any more. Colonel Smith quoted the Warden as saying that “he just wasn’t going to have any more food poisoning riot or potential riot.” On the same day, Mr. Messer met with Colonel Smith. At that time, Colonel Smith offered Mr. Messer the opportunity of accepting a demotion for the period of time necessary to enable him to retire. Mr. Messer refused and asked if he could go on leave instead, and was granted four weeks annual leave, beginning June 27, 1975.

On July 14, 1975, while Mr. Messer was on leave, an inspection of the prison was made by the Division of Health of the State Department of Health and Human Resources, which made a report of its findings under date of July 16, 1975. On July 25, 1975, a letter discharging Mr. Messer from his position was directed to him by Elayn Hunt, Director of the Department of Corrections, which reads, in part, as follows:

“You were given an appointment as Food Service Manager at the Louisiana State Penitentiary on December 13, 1965. Through the orderly review of positions within the Department your title underwent several changes until your present title was adopted on August 1, 1969, Corrections Food Manager III.
“This title gives you full authority and responsibility over preparation of food at the Louisiana State Penitentiary. The position entails not only menu preparation and requisitioning of food, but supervision of the preparation of food to determine that this preparation is done in accordance with established health and sanitary standards.
“In your application submitted to us and dated July 28, 1966, you indicated T supervised the preparation of all meals, directly or indirectly through the staff employees. The meals are prepared in an efficient and sanitary manner, and served in cafeteria style’.
“As a result of the report received from the Division of Health, LHHRA, which was made on July 14, 1975, it has become necessary to review your work record.”

There then followed a list of 14 separate incidents, five of which related to the findings made in the July 14, 1975, inspection, and the remainder of which detail a series of incidents which allegedly took place between 1970 and 1974. The letter then concludes as follows:

“This review of your work record, which was directly caused by receipt of the report of the health inspection, dated July 16, 1975, and which reported an inspection of your kitchen on July 14, 1975, indicates that the several supervisory officials at the penitentiary, including Warden Henderson, Warden Hoyle, the Prison Business Administrator and Assistant Administrator, have worked with you over a long period of time in an attempt to improve your effectiveness and performance of duty. Frankly, it is surprising that their patience has not been exhausted long since.
“This entire work record indicates a continuing series of problems concerning effective performance on your part at the Louisiana State Penitentiary.
“Because of the above cited official inspection report indicating the several deficiencies in your area of responsibility and the comprehensive review of your work record as shown in Paragraphs A through N, and attached copies of memo-randa and reports, this will serve to inform you that you are being separated from your position as Corrections Food Service Manager III at the Louisiana State Penitentiary effective the close of business August 4, 1975.”

Mr. Messer’s appeal to the Commission is worded in pertinent part as follows:

“The basis of his appeal is that the charges made against him are not true. We will produce documentary evidence at a hearing to refute the charges contained in the letter from Ms. Hunt. The relief we are seeking is re-instatement of Mr. Messer’s former position with all back pay as well as other emoluments of his office."

After the hearing the Commission rendered its opinion, denying the appeal. It made its findings of fact in a general rather than a specific fashion including a number of findings of facts not alleged as a cause of Mr. Messer’s discharge. The opinion concludes as follows:

“It was appellant’s failure to exercise these managerial responsibilities which led to his discharge. The record is replete with repeated instances of this failure, and, as the Director of the Department of Corrections noted in the letter of discharge:
‘. . . the several supervisory officials at the penitentiary including Warden Henderson, Warden Hoyle, the Prison Business Administrator and Assistant Administrator, have worked with you over a long period of time in an attempt to improve your effectiveness and performance of duty. Frankly, it is surprising that their patience has not been exhausted long since.’
“The letter of discharge contained a lengthy recitation of major problems of sanitation noted and reported upon by an inspector from the Department of Health on July 14, 1975. Appellant insists that he cannot be held responsible for any of those deficiencies for the reason that he was on annual leave at the time the inspection was made, and he had been on annual leave for approximately three weeks prior to the date of the inspection. Appellant had, in fact, been relieved of his duties as manager of food preparation and service by a memorandum issued by the Warden on June 23.
“Even a casual reading of the deficiencies by the inspector from the Department of Health reveals that a substantial number of these deficiencies had not come into being between the time that appellant went on annual leave and the inspection was done. Certainly some of these could have been of recent origin — such as pools of water being on the floor; dirty clothing being strewn about in various areas— but the ones dealing with the presence of filth in various places had, obviously, taken a much longer time to develop.
“The Commission has determined, from an examination of all of the evidence, that appellant failed to possess, or exercise, the requisite degree of managerial skill to' overcome the difficulties with which he was faced and to do that for which he was employed — prepare and serve palatable food under sanitary conditions. To be sure there were difficulties. There were divided areas of responsibility in the maintenance of sanitation; there were divided areas of responsibility in the operation of the “satellite” kitchens in the outlying “camps” of the penal institution; there were problems with the maintenance of equipment, particularly the equipment for the cold storage of food; but the State of Louisiana was entitled to 100% effort on the part of appellant to overcome these difficulties to the greatest extent possible and to have appellant accomplish that for which he was employed and adequately paid, i. e., to obtain, store, prepare and serve palatable food under sanitary conditions. Undoubtedly the accomplishment of this objective, under the conditions existing at the penitentiary, requires the exercise of considerable managerial skill. Appellant was unwilling, or unable, to demonstrate this skill on a sustained basis.”

We think it clear from a review of the facts above set forth, that the various grounds alleged for the discharge of Mr. Messer do not constitute the real basis for that action. The decision to remove Mr. Messer from his position was made over three weeks before the inspection which was allegedly the cause of the review of his record. All of the other instances of substandard conduct with which he was charged had already been condoned by the appointing authority, or had formed the basis for other, less serious disciplinary action. The record shows that throughout his career at Angola, Mr. Messer had received satisfactory service ratings, including the periods during which the various acts with which he was charged took place.

In addition, although the Civil Service Commission found that it was Mr. Messer’s “failure to exercise these managerial responsibilities which led to his discharge”, we cannot find that lack of managerial ability is alleged as the basis of his discharge. The letter of discharge specifically states that he is being discharged “because of the above cited official inspection report indicating the several deficiencies in your area of responsibility and the comprehensive review of your work record . . . ” Although a lack of managerial ability may be inferred from the letters, the law requires that the cause of disciplinary action be specifically set forth in writing.

However, despite the rather obvious defects in the letter of dismissal, Mr. Messer chose to base his defense on the allegation that the charges against him were untrue.

The first four of these charges relate to deficiencies noted in the report of the July 14, 1975, inspection. Although the report was identified by one of the witnesses for the appointing authority, there was no testimony by any of the persons who made the inspection. The report is therefore, hearsay, and not competent evidence. Although, under the Administrative Procedures Act, the Civil Service Commission is not bound by the technical rules of evidence, only legally competent evidence will be considered by us in our review of the case. Michel v. Dept. of Pub. Saf. Al Bev. Con. Bd., 341 So.2d 1161 (La.App. 1st Cir. 1976); R.S. 49:956. Since there is no competent evidence to support these four charges, they are not proven by the appointing authority.

The next two charges made against Mr. Messer relate to some of the circumstances surrounding his discharge, but contain no allegations of misconduct.

The next two allegations are to the effect that his regular step increase in pay was held up for two 90-day periods: the first because of a breakfast meal on September 28,1973, for which proper supplies were not available and which was badly prepared; and the second because 1,170 pounds of frankfurters were allowed to spoil. These two charges are supported by the evidence, although it appears that the refrigerator room in which the frankfurters were stored was not properly insulated and repairs requested by Mr. Messer had not been done because of lack of funds. It also appears from these two charges that Mr. Messer has already been disciplined for both of these offenses.

The next charge relates to an inspection made on December 13, 1973, during which unsanitary conditions were found. The evidence supports the report of the inspection. However, most of the substandard conditions existed in area in which Mr. Messer was not primarily responsible for cleanliness and sanitation.

The next charge relates to the September 23, 1973, breakfast meal, discussed above, for which Mr. Messer has already been disciplined.

The next charge states that Mr. Messer made excess vegetable purchases during the month of June, 1972. Mr. Messer’s only defense to this charge is that his requisition had been approved by the Business Manager.

The next charge relates to a meat freezer inventory which was to have been made on June 30; 1972, but which was not made until July 9, 1972. The charge alleges that the inventory was grossly in error, but there is no proof of this fact. The only evidence relative thereto is that the inventory was made late, which is not denied by Mr. Mes-ser.

The next charge is that the dining room ran out of bread on February 23, 1970. There is no evidence to substantiate this charge.

The final charge relates to two instances in 1970, when cash received by Mr. Messer was not turned in with a cash collection sheet. Without going into detail, the evidence shows that the money was, in fact, turned in, although late in one case.

It therefore appears that the appointing authority has proven only four of the many charges made against Mr. Messer, and in two of these cases there are extenuating circumstances. Mr. Messer has already been disciplined or reprimanded in all cases. In view of the failure to prove the majority of the charges made, and of the fact that, throughout his ten-year career, Mr. Messer never received an unsatisfactory service rating, even though the greater part of the charges made against him took place during that period, we are of the opinion that grounds for his discharge have not been shown.

The opinion of the Civil Service Commission, affirming Mr. Messer’s discharge is therefore set aside, and he is ordered reinstated in his position as Corrections Food Manager III as of August 4, 1975, with full pay and emoluments of his position. The appointing authority shall pay all costs for which it may be legally taxed.

REVERSED ÁND RENDERED.


text:
    Raymond B. GAUTREAU, Plaintiff-Appellee, v. MODERN FINANCE COMPANY OF GONZALES, INC., Defendant-Appellant.
    No. 11837.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 13, 1978.
    Rehearing Denied May 1, 1978.
    Writs Refused March 27 and June 16, 1978.
    Benjamin C. Vega, Jr., Donaldsonville, for plaintiff-appellee.
    Keith D. Jones, Baton Rouge, for defendant-appellant.
    Before LANDRY, SARTAIN and ELLIS, JJ.
   SARTAIN, Judge.

This matter is before us on plaintiff-appellee’s motion to dismiss defendant-appellant’s appeal as suspensive. For reasons hereinafter stated, we hold the motion to be untimely and deny the same.

The pertinent facts are as follows: On June 28, 1977, judgment was rendered in favor of plaintiff. On July 28, 1977, the trial judge denied defendant’s timely application for a new trial. On August 17, 1977, defendant sought and obtained an order for a suspensive appeal conditioned upon its furnishing bond in the amount of $5000.00. A bond in this amount was filed on August 24, 1977. Following a rule contesting the sufficiency of the bond, the trial judge on September 7, 1977, rendered judgment increasing the bond to $51,000.00. A written judgment reflecting the increase was signed on September 9, 1977. A supplemental bond in the amount of $46,000.00 was filed by the defendant on September 15, 1977.

The return date set in the order of appeal was October 17, 1977. The record was lodged in this court on October 14, 1977. The instant motion was filed on November 28, 1977.

Plaintiff contends that inasmuch as the supplemental bond was not filed within the four legal days following the rendition of the judgment ordering the same (C.C.P. Art. 5124), defendant has failed to timely perfect a suspensive appeal.

Counsel for plaintiff argues that he was not in court when the trial judge set the amount of the increase and that he was therefore entitled to notice of the signing of that judgment. If this be correct, September 15, 1977, was in fact the fourth legal day because the 10th and 11th of September were Saturday and Sunday.

It is not necessary that we address ourselves to either of these contentions.

C.C.P. Art. 2161 provides, in pertinent part, that “Except as provided in Article 2162, a motion to dismiss an appeal because of any irregularity, error, or defect which is imputable to the appellant, must be filed within three days, ... of the return date or the date on which the record on appeal is lodged, . . . whichever is later.”

C.C.P. Art. 2162 states, inter alia, “An appeal may be dismissed at anytime . [where] there is no right of appeal, . . ”

There is no contention here that defendant has lost its right to appeal, the issue asserted by plaintiff is that defendant has lost its right to maintain a suspensive appeal.

In similar situations we have held that the irregularity complained of is not jurisdictional and must be raised within the three day period provided for in C.C.P. Art. 2161. Carter v. Levy, 156 So.2d 119 (La. App. 1st Cir. 1963) and Smith v. Campbell, 196 So.2d 662 (La.App. 1st Cir. 1967). For a contrary view see Home Insurance Co. v. Southern Specialty Sales Co., 222 So.2d 649 (La.App. 4th Cir. 1969).

Where the motion is timely and the delays have lapsed for a suspensive but not for a devolutive appeal, the appeal will be permitted as devolutive only. Faust v. Curtis, 278 So.2d 875 (La.App. 1st Cir. 1973).

Accordingly, appellee’s motion is denied.

MOTION DENIED.


author: PONDER, Judge.

text:
    Jerry Joseph FONTENOT et al. v. STATE of Louisiana Through the DEPT. OF HIGHWAYS et al. Robert McCONNELL et al. v. UNITED STATES FIDELITY & GUARANTY COMPANY et al.
    No. 11919.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 21, 1978.

      Gordon R. Crawford, Asst. Dist. Atty., Gonzales, for defendants-relators.
    Alton T. Moran, Baton Rouge, for plaintiffs-respondents.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   PONDER, Judge.

On application of the Ascension Parish Police Jury we issued an alternative writ to recall an order for a judgment debtor examination or for the court and the plaintiffs to show cause why not. Plaintiffs have filed a brief asserting they should be allowed to hold the examination.

La.Const. of 1974, Article 12, Section 10(C) reads as follows:

“(C) Procedure; Judgments. The legislature shall provide a procedure for suits against the state, a state agency, or a political subdivision. It shall provide for the effect of a judgment, but no public property or public funds shall be subject to seizure. No judgment against the state, a state agency, or a political subdivision shall be exigible, payable, or paid except from funds appropriated therefor by the legislature or by the political subdivision against which judgment is rendered.”
LSA-R.S. 13:5109-B reads as follows: “B. Any judgment rendered in any suit filed against the state, a state agency, or a political subdivision, or any compromise reached in favor of the plaintiff or plaintiffs in any such suit shall be exigible, payable, and paid only out of funds appropriated for that purpose by the legislature, if the suit was filed against the state or a state agency, or out of funds appropriated for that purpose by the named political subdivision, if the suit was filed against a political subdivision.”

The judgment debtor examination is provided by C.C.P. Art. 2451 which reads as follows:

“In aid of execution the judgment creditor may examine the judgment debtor, his'books, papers, or documents, upon any matter relating to his property, . .”

The police jury argues that since the rule is to be used in the execution of a judgment and since its property cannot be seized it should not be subjected to the examination. Plaintiffs contend that the above provisions are inconsistent with the waiver of immunity from suit and from tort liability and should be interpreted somehow as to allow them to proceed to collect their judgment by seizure or by mandamus and that the judgment debtor rule should be therefore allowed. The first method, that is seizure, has been discussed in Foreman v. Vermilion Parish Police Jury, 336 So.2d 986 (La.App. 3d Cir., 1976), writ refused, La., 339 So.2d 846. The result was contrary to plaintiffs’ contentions.

Next plaintiffs assert they should be allowed to mandamus the police jury to appropriate the funds for the payment of the judgment, on the grounds that the discretionary power of a political subdivision cast in judgment to refuse to pay has been removed and therefore the appropriation process has been converted into a ministerial duty amenable to mandamus. We disagree. The appropriation of funds by a legislative body has been almost universally held to be discretionary, not ministerial. We find nothing in the Constitution or recent jurisprudence to compel a contrary result.

We therefore hold that the police jury should not be required to submit to a judgment debtor rule.

Our decision on this point removes the necessity of considering whether the examination can be held in Baton Rouge and who should pay the costs.

The rule is made peremptory and the lower court is ordered to recall its order allowing the judgment debtor examination of the Ascension Parish Police Jury.

Writ made peremptory.


author: SCHOTT, Judge.

text:
    In the Matter of Berwick LAGARDE, Jr.
    No. 9387.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 16, 1978.
    William W. Rosen, New Orleans, for relator.
    William E. Wynne, New Orleans, for respondent.
    Before REDMANN, STOULIG and SCHOTT, JJ.
   SCHOTT, Judge.

This matter first came to our attention on the application of Diane and Berwick Lagarde applying for remedial writs, directed to an order of the Juvenile Court for the Parish of Orleans, dated January 6, 1978, denying relator’s motion to recall the necessity for a devolutive appeal bond in connection with their appeal from a judgment finding their minor child abused and neglected.

Upon our examination of their application, we discovered that the judgment appealed from was signed on October 26,1977, but the motion for appeal was not taken by relators until November 14, beyond the 15-day time limit for appeal from such a judgment as prescribed by R.S. 13:1591(A). Accordingly, we did not consider relator’s application for writs.

Thereafter, relators applied for supervisory writs to the Supreme Court of Louisiana and on February 24, 1978, the Supreme Court made the following disposition of their application:

“Granted — Appeal reinstated without bond. 294 So.2d 317, [517] 387 [287] So.2d 558, 317 [318] So.2d 897.”

When we reviewed this action by the Supreme Court we referred to the cases cited above and found them to be as follows:

In Re Salmon, 318 So.2d 897 (La.App. Cir. 1975) was before the court on a motion to dismiss the appeal involving two questions; 1) was an appeal bond required in an adoption case and 2) if bond was required was it filed timely so as to perfect the appeal. The court concluded that an appeal bond was necessary but the bond was timely filed under the particular circumstances of this case.

In In Interest of Jackson, 294 So.2d 517 (La.1974), the court held that no appeal bond is required in juvenile court abandonment proceedings.

In In Re State in Interest of Curley, 287 So.2d 558 (La.App. 1st Cir. 1973), the court held that no appeal bond was required in a juvenile proceeding involving custody of neglected children but dismissed the appeal because the motion for appeal was not taken until after ten days from the date the judgment was signed and therefore untimely in accordance with R.S. 13:1591 as it then provided.

It appeared to us from the cases eited that the Supreme Court had addressed itself to the question of whether or not an appeal bond is necessary as opposed to the timeliness of relators’ motion for appeal. This is especially so considering the last cited case which is on practically all fours with the instant case. For this reason, on February 28 we ordered appellants to show cause why this appeal should not be dismissed. In response appellants have taken the position that the Supreme Court in its action of February 24 has already decided the question of the timeliness of the appeal and have provided us with a copy of their application filed in the Supreme Court following our action of February 10, 1978.

A review of that application shows that appellants informed the Supreme Court that the judgment of the juvenile court, from which this appeal was taken was signed on October 31 and not October 26, with the result that the motion for appeal filed on November 14 was timely. Attached to the application to the Supreme Court were extracts from the minutes of the juvenile court, including the one in question which begins with the date October 26 and has the signature of the trial judge thereon but also has over these minutes the stamped date of October 31, 1977. In their application to the Supreme Court appellants argued that it was erroneous for this Court of Appeal to dismiss their appeal as untimely and fail to consider their application for supervisory writs in the first instance.

It must be understood that unless an appeal is perfected within the time prescribed by law the appellate court has no jurisdiction to consider the judgment because it has become definitive under LSA-C.C. Art. 3556(31), Wright v. Mark C. Smith & Sons, 283 So.2d 85 (La.1973). Once the time prescribed by law for taking an appeal has run it matters not whether the motion is filed one day or one year too late. The judgment is definitive and unappealable in either case.

The jurisprudence of the Supreme Court most recently restated in the Wright case has been followed by this court in numerous cases. We did not take the Supreme Court’s action in connection with appellants’ appeal to be an intention to overrule this line of jurisprudence and we do not understand that to be the meaning of their action at this time.

We surmise that the Supreme Court took at face value the statement of appellants in their application that the judgment was signed on October 31, but in response to our rule to show cause why the appeal should not be dismissed the District Attorney for the Parish of Orleans advised us that the October 31 date was not the date that the judgment was signed but rather an administrative or clerical endorsement on the minutes indicating the date when this entry was recorded in the computer. Because we were confronted with two conflicting statements from the parties with respect to the significance of the two dates on the minutes, we secured from the clerk of the juvenile court a certificate that the judgment was signed on October 26 and that the date of October 31 simply indicates the date that the judgment was entered into the docket book of the juvenile court and placed on record in the computer.

R.S. 13:1591(A) provides that a motion to appeal a judgment of neglect must be filed within 15 days after the signing of same. Because appellants filed their motion on November 14, beyond the 15-day delay, the judgment was already final and definitive and this court has no jurisdiction over an appeal from said judgment. This action is in accord with In Re State in the Interest of Curley, supra, one of the cases cited by the Supreme Court with approval on February 24 and with all of the jurisprudence emanating from the Supreme Court on this subject.

The appeal is dismissed.

APPEAL DISMISSED.