author: BEER, Judge. STOULIG, Judge

text:
    Barry FLINT and Donald Plaisance, Sr., Administrator of the Estate of Donald Plaisance, Jr. v. ST. AUGUSTINE HIGH SCHOOL and St. Joseph’s Society of the Sacred Heart, Inc.
    No. 7496.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 1, 1975.
    Rehearing Denied Dec. 4, 1975.
    Writ Refused Jan. 9, 1976.

      Joseph W. Thomas, New Orleans, for plaintiff s-appellees.
    Nelson, Nelson & Lombard, Ltd., John P. Nelson, Jr., New Orleans, for defendants-appellants.
    Before STOULIG, BOUTALL, and BEER, JJ.
   BEER, Judge.

St. Augustine High School is a private school established in New Orleans in 1951. According to its Student Handbook, it is conducted by The Society of St. Joseph and dedicated laymen. That handbook, admitted into evidence in these proceedings, also informs those who read it that:

The registration of a student [at St. Augustine] is considered an acceptance on his part and on the part of his parents or guardian of all the rules and regulations of St. Augustine High School including the judgment of school authorities on discipline, suspension or expulsion of students.”
(St. Augustine High School Student Handbook 1974-75 p. 12)

It further provides that:

“Students are forbidden to smoke within two blocks of the school grounds. Violation of this rule incurs a fine of ten dollars for those who smoke as well as for those present in a gathering where this rule is being violated. Violators may not return to school until the fine is paid. REPETITION WILL RESULT IN DISMISSAL.” (Emphasis theirs.)
(St. Augustine High School Student Handbook 1974 — 75 p. 26)

Barry Flint was a student at St. Augustine High School. He entered in 1973 and attended every school term since enrolling.

On October 27, 1974, March 27, 1975 and September 29, 1975 he smoked on the school grounds in violation of the school rule.

Before the violation of September 29, 1975 the following described exchange took place between Barry Flint and Mr. Leo A. Johnson, Jr., the principal of St. Augustine High School:

“Prior to the third incident, Barry was standing inside the restroom. He was just standing there. I walked up to Barry, I told him, ‘Barry, you know that you have been caught smoking before, and if you get caught again, you’ll be dismissed from school.’ He raised his hands up and said, ‘I understand.’ and walked away.”

Barry Flint was expelled from St. Augustine High School on October 1, 1975 (following the third violation) and sought relief from that expulsion in the Civil District Court for the Parish of Orleans.

Donald Plaisance, Jr. was also a student at St. Augustine High School. He entered in September of 1972 and attended every school term since enrolling. On October 8 or 9, 1975 (about one week after the expulsion of Barry Flint) Donald was accused of smoking in the rest room of the school by Mr. Leo A. Johnson, Jr. As a direct and immediate result of this confrontation the following exchange took place according to the sworn testimony of Mr. Johnson :

“I brought Donald to the office. I said, ‘Donald, you know the penalty for smoking.’ He said, ‘Yes, a $10.00 fine.’ I said, ‘You can’t return until you bring the $10.00 fine.’ He said, ‘Yes, I know.’ I said, ‘You know you’re going to get a letter that if you smoke again you will be dismissed from school.’ He [sic] answer was, ‘Yes, I know.’
“I said, ‘Are you sure you understand, Donald?’ He said, ‘Yes, I understand.’ That was the first incident. Then the letter went out on October 13th.”

The abovementioned letter, dated October 13, 1975 and signed “Leo A. Johnson, Jr., Principal,” contains the following unequivocal statement:

“This letter is to inform you that your son has violated the rule governing smoking and has been penalized $10.00. Please refer to page 26 of the Student Handbook regarding Restricted Areas.
“In addition, if he is guilty of violating this rule again while in attendance at St. Augustine High School, he will be automatically expelled.
“Hopefully, I will have your assistance in seeing to it this rule is not violated again.”

That letter was duly received- by Plaisance’s parents and brought to his attention by them.

Then, on October 20, 1975 an incident took place which is best described by Mr. Johnson’s sworn testimony:

“ * * *. On the 20th of October I went into the restroom. This time Donald was again in that same stall with a cigarette in his hand. I walked up in total disbelief and shock.”

Donald Plaisance, Jr. was expelled from St. Augustine High School on October 20, 1975 and sought relief from that expulsion in the Civil District Court for the Parish of Orleans.

Trial of both matters on November 7, 1975 resulted in a judgment, rendered November 12, 1975, which enjoined St. Augustine High School from expelling Barry Flint and Donald Plaisance and ordered them reinstated as students of the school.

However, the enforcement of that judgment was suspended by the trial court while a writ of certiorari was sought by the school. This court granted the writ, continued the suspension of the judgment of November 12, 1975, received additional memoranda from able counsel for both parties and heard oral argument on November 25, 1975.

The trial court made factual determinations which, we believe, are supported by the record.

Rather than paraphrase, we quote herewith:

“For at least six or eight years, and certainly for a period beginning much earlier that plaintiffs’ enrollment there, defendant St. Augustine High School has included in its published ‘Student Handbook’ a rule forbidding students to smoke on or in the near vicinity of the school grounds. The penalty set forth in the published rule has always been a fine of ten dollars, with the following additional provision, or one substantially similar thereto: ‘Repetition will result in dismissal.’ The ten dollar fine has always uniformly been assessed by school authorities. The penalty of dismissal for a second offense had never been imposed upon any student until plaintiffs were expelled. Many students were previously caught violating the no-smoking rule repeatedly; all were fine; no one was expelled or even suspended from school.
“At the beginning of the 1974-75 school year, Mr. Leo Johnson assumed the position of principal of St. Augustine High School. Previously, he had been a faculty member for seven years. At St. Augustine, the principal has the ultimate authority in matters of discipline of students. During his first year as principal, Mr. Johnson did not enforce the expulsion penalty for the second smoking offense. Indeed, plaintiff Flint was caught smoking in October of 1974 and in March of 1975. On each occasion the principal levied a $10.00 fine, which was paid. The evidence does not indicate that there was even any discussion about expulsion.
“Mr. Johnson testified that, at some point thereafter, he decided to enforce the expulsion penalty, when it was called to his attention that it was in the Student Handbook. He did not say who called it to his attention or when when that occurred. While the handbook containing the rule and the never-before-invoked penalty was distributed to students at the beginning of the current school year, the decision to commence enforcing the expulsion penalty for second offenders was never promulgated to students or faculty.
“Mr. Johnson testified that on an occasion shortly before the date on which Flint was expelled, he saw him standing inside the rest room and warned him that if he were caught smoking again, he would be dismissed from school. Flint says that he never understood any such clear warning. The Court is convinced that both of them testified truthfully.
“At any rate, the school never used any of the many means available to warn students of the new policy as to enforcement of the expulsion penalty for repeated smoking violations. No message was ever placed on a bulletin board, no announcement was made at any student assembly, no communication was sent to parents. Flint’s expulsion provided the perfect opportunity to warn possible future violators that they faced expulsion. However, the reason for Flint’s dismissal from school was never announced and within three weeks plaintiff Plaisance faced the same fate. Plaisance learned for the first time after his own expulsion that Flint had also been dismissed from school for smoking.
“On September 29, 1975, plaintiff Flint was caught smoking. On the basis of his offense in March of the previous school term, he was expelled two days later when the principal returned from an out-of-town meeting.
“Plaintiff Plaisance was fined for smoking on or about October 9. The principal himself saw Plaisance in the rest room, and although he did not see Plaisance with a cigarette, he concluded from the circumstances that Plaisance was in fact smoking. The principal ad-viced the student that he would have to pay a fine for smoking, and Plaisance did so. Four days later, a letter was sent to Plaisance’s parents, advising them of his violation of the no-smoking rule and warning that repetition would result in expulsion. About a week thereafter, the principal saw Plaisance in the rest room with a lighted cigarette in his hand and expelled him from school.
“Plaintiff Plaisance testified that he was not smoking on the first occasion on which he was fined, that he tried to so explain to the principal, but that he was given no opportunity. The Court has no reason to doubt the truthfulness of his testimony. Plaintiff admitted that his parents received the letter warning of possible expulsion, but stated that he did not believe that the penalty would be invoked, apparently in view of the past history of non-expulsion and since he had not in fact been smoking the first time.”

The trial court’s judgment in favor of Flint was, therefore, apparently based upon both a factual finding that although the verbal warning was given by Johnson it was not heard or clearly understood by Flint and, further, upon the legal conclusions which the trial court stated as follows :

“This Court’s initial inclination was to maintain defendants’ exception of no cause of action, on the basis that as a matter of law no Court has the right to interfere with the . administration of a private school such as St. Augustine. This inclination was undoubtedly strengthened by the very high regard which the Court has for St. Augustine High School, its administrators and faculty. The school has an outstanding reputation, hard-earned and richly deserved. But these same considerations lend weight to plaintiffs’ contention that judicial review should be available to them. The right to graduate from a particular high school has a value directly related to the standing of the school. A diploma from St. Augustine High School is something to be cherished, of inestimable value in this community.
“To hold that under no circumstances may a court nullify the expulsion of a student from a private school could lead to an absurd result. Senior students such as plaintiffs, who have invested in pursuit of a St. Augustine diploma considerable money as well as time and effort of much more value than money, could then conceivably be expelled for no reason at all with no remedy available to them. If a student has the right to court protection from completely arbitrary expulsion action on the part of a private school, a right which he must be accorded, then defendants’ exceptions must be overruled.
“On the other hand, it is not for the court to say what a private school’s discipline rules should be, nor should a court substitute its own judgment for that of the school administrators as to the proper method of dealing with discipline problems. St. Augustine will remain the great educational institution which it is only if strict discipline is maintained among its student body; thus the school administrators must have a free hand in maintaining that discipline. Nevertheless, as stated above, individual students also have rights.
“This case, involving the rights of students in a non-public school, is apparently a case of first instance in Louisiana (and perhaps in the United States). In somewhat analogous situations, Louisiana courts have enunciated the rule that courts will not interfere with the disciplinary actions of private organizations, so long as the regulation involved is fairly and uniformly applied, after due notice to the parties involved. Considering the facts summarized above, it can hardly be said that the expulsion penalty for repeated smoking violations has been uniformly applied after due notice to the students of the intention on the part of the school to begin enforcing it.
“A written rule which, to the knowledge of students and faculty, has never been enforced over a period of many years is not a rule at all.
“Finally, it should be stressed that the decision in this case does not mean that the penalty in question may never be invoked in the future, provided that due notice of the intention to enforce it is first given to the students and their parents in clear, unmistakable terms, so that they will understand that the old ‘rule’ actually practiced is being discarded in favor of strict enforcement of the written rule.”

The trial court’s judgment in favor of Plaisance must necessarily rest on the legal conclusions noted above for there can be no doubt about the actual receipt of the written warning transmitted to Plaisance in the letter of October 13, 1975. It was acknowledged by him in his sworn testimony.

Though we would have, perhaps, authored a less drastic or harsh punishment than expulsion, we cannot say that such a penalty was beyond the scope of the disciplinary powers granted to the principal and acknowledged to be clearly within his authority and discretion. Accordingly, our attention must necessarily focus on issues which are, therefore, substantially narrowed by these observations, the trial courts findings and its conclusions. Thus, we limit the scope of our deliberations to two issues:

1. Since the trial court did find as a fact that Johnson orally warned Flint prior to the violation that precipitated his dismissal that he would, indeed, be dismissed if he again violated the rule— would Flint’s failure to hear and/or understand be a basis for our judicially discarding the warning;
and
2. Are the trial court’s legal conclusions correct ?

We answer both queries in the negative.

Although the trial judge expresses the view that Johnson and Flint each testified truthfully, we believe Flint’s testimony to be equivocal in support of his contention that he did not hear and/or comprehend the seriousness of Johnson’s warning whereas, we believe Johnson’s testimony on this important point to be clear, categoric and unequivocal. Faced with the trial judge’s equal finding regarding the actual truthfulness of the statements, we opt for the conclusion that supports the acceptance of that testimony which is most compelling and thus we do not judicially discard the fact of the actual warning to Flint.

Turning to a consideration of the legal conclusions of the trial court, we first take note of the vast difference required in dealing with matters such as these in private versus public high schools.

Self-imposed time limitations (because of the obvious need to review this matter with deliberate speed) obviate our ability to here set out a detailed delineation of the differences. Sufficient for our purpose here is the observation that private institutions like St. Augustine High School have a near absolute right and power to control their own internal disciplinary procedure which, by its very nature, includes the right and power to dismiss students.

That is not to say that due process safeguards can be cavalierly ignored or disregarded. But, if there is color of due process — that is enough.

We believe that the facts found by the trial court support a legal conclu-' sion that there were here present such necessary minimum safeguards as were required to take the actions of dismissal out of the ambit of being arbitrary or capricious or without probable cause.

Though the methodology was different in each case, both young men were on notice of the result which would ensue upon their next violation of the smoking rule. When the specific dismissal-precipitating violations did, indeed, occur, the young men were confronted by their accusers and the record offers no indication that these specific accusals were unjustly or erroneously made. The dismissals quickly followed.

Fundamental rights of all parties are very much at issue here. We do not consider the basic due process rights of Flint and Plaisance to be any less important or any less deserving of protection than those of St. Augustine High School which also clearly requires protection if it is to survive as a private, properly disciplined, functioning institution of learning.

We have not sought to balance the one against the other. We have only concluded that the procedure followed by St. Augustine High School in the cases involving these two young men is not such as to require the State of Louisiana, through its judicial system, to intercede.

That such judicial restraint may have an unhappy and seriously disconcerting effect on the academic lives of these two young men causes us grave concern in view of the disciplinary decision to dismiss rather than suspend them. But an even graver concern would be caused by our failure to impose the judicial self-restraint that is called for in this case.

St. Augustine himself observed that when he was in Rome he fasted on the days set aside for that purpose by the Romans, though they were not the same as the days that he fasted while at home. He thus may be considered the original author of the oft used phrase: “When in Rome do as the Romans do.”

These young men were obliged, while at St. Augustine High School, to do as they were required by the rules of the school— which they deliberately chose to ignore. Having determined, as we do, that such due process rights as they were entitled to in the premises have not been so violated as to sully the school’s action, we reverse the judgment of the Civil District Court.

The judgment of the Civil District Court for the Parish of Orleans dated November 12, 1975 is hereby reversed. Judgment is rendered in favor of Defendants-Appellants St. Augustine High School and St. Joseph’s Society of The Sacred Heart and against Plaintiffs-Appellees Barry Flint and Donald Plaisance, Sr., Administrator of the estate of Donald Plaisance, Jr., dismissing plaintiffs’ suit at their cost.

Reversed and rendered.

STOULIG, J., concurring with written reasons.

STOULIG, Judge

(concurring).

I concur.

I am of the further opinion that St. Augustine, a private institution, has the absolute discretion to prescribe such rules, regulations, and penalties for the violation thereof as it deems necessary for the preservation of discipline in the furtherance of its scholastic and related endeavors. And as a corollary thereto it possesses the unlimited right and power to dismiss students through the designated authority unrestricted by the constitutional requirements of procedural due process imposed by the federal courts on officials in the field of public education.

Acceptance of a student by a private school does not create a vested right to continued acceptance. Dismissal carries with it only the right to the return of a pro rata of tuition for the unexpired current term.

The malicious or arbitrary exercise of the authority of dismissal may well give rise to an action in damages under the tort laws of this State; however, it can never serve as a legal basis for the student to demand his reinstatement. The right of a private school to dismiss a student for an infraction of its rules is absolute.

      . Not even the members of the disciplinary committee were aware of the change in enforcement policy. Mr. Eddie Flint, a member of the faculty of many years, learned of the ‘new rule’ only after plaintiff Flint’s expulsion. Defendant’s contention that students should have known of the expulsion penalty and should have expected it to be imposed is somewhat incongruous when weighed against the principal’s lack of knowledge of the rule after many years of faculty service and a year as principal, and the general lack of knowledge by students and faculty alike.

      . No such warning letter was issued in Flint’s case.

      . In this regard, St. Augustine High School is entitled to the very strong (though rebut-table) presumption that its internal administrative actions are taken in absolute good faith and for the mutual best interests of the school and the student body.


source: Caselaw Access Project

author: LEMMON, Judge. LEMMON, Judge,

license: Public Domain

text:
    Moise S. STEEG, Jr., et al. v. LAWYERS TITLE INS. CORP. et al.
    No. 7348.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 17, 1975.
    Rehearing Denied Dec. 9, 1975.
    Writ Granted Jan. 14, 1976.

      Stone, Pigman, Walther, Wittmann & Hutchinson, Phillip A. Wittmann and Clinton W. Shinn, New Orleans, for plaintiffs-relators.
    Breazeal, Sachse & Wilson, Gordon A. Pugh and F. Charles McMains, Jr., Baton Rouge, for defendants-respondents.
    Before LEMMON, STOULIG and BEER, JJ.
   LEMMON, Judge.

Plaintiffs, the authorized agents of several title insurance corporations, filed a petition for injunctive relief seeking to enjoin defendants, another title insurance corporation and its agent, from violating R.S. 22:1406, subd. C, which requires that “Every title insurer doing business in this state shall adhere to the rates promulgated by any title insurance rating bureau licensed under this Part, and which rates have been approved by the casualty and surety insurance division.”

Plaintiffs alleged that defendants adopted a rate schedule which was not promulgated by any licensed rating bureau or approved by the casualty and surety insurance division, in violation of the cited statute, and that plaintiffs are daily suffering irretrievable loss of business because they cannot compete with defendants without violating the same prohibitory law.

Defendants filed numerous exceptions, and the trial court (through a substitute judge of the division during vacation), after considering documentary evidence filed at the hearing on the exceptions, maintained the exception of no cause of action. Upon plaintiffs’ application for supervisory writs, this court reviewed only the petition and ordered that the judgment maintaining the exception be set aside and that the exception of no cause of action be overruled.

The trial court then considered and ruled upon all exceptions, maintaining several exceptions and dismissing the suit. We then granted a writ of certiorari upon plaintiffs’ second application for supervisory writs.

We now separately treat each exception which has been maintained by the trial court.

No Right of Action

This exception is designed to question the interest or right of the plaintiff in instituting the suit. C.C.P. art. 927. If a valid cause of action has been asserted by the petition, the exception of no right of action will be maintained only if the wrong plaintiff brought the suit.

The present plaintiffs, seeking injunctive relief on the grounds that they will otherwise be irreparably injured, are certainly the proper parties to bring this action. See also C.C.P. art. 681. The issue as to whether or not plaintiffs can prove irreparable injury is a matter of defense at a trial on the injunction, and that issue is not properly raised by the exception of no right of action.

As to the contention that the Commissioner of Insurance is the only party empowered to enjoin violations of prohibitory provisions of the Insurance Code, we note that R.S. 22:1366 merely authorizes that official to do so. Nothing in the cited statute, or in any other law of which we are aware, prohibits the use of injunctive process for that purpose by one who is suffering irreparable injury as a result of the alleged violations.

Prematurity

The trial court, citing R.S. 22:1351, 1360 and 1408, ruled that court action was premature until plaintiffs had exhausted the administrative remedies provided in the Insurance Code and in the Administrative Procedures Act (R.S. 49:951 et seq).

This action is not one to fix, approve, disapprove, or adjust insurance rates, nor is it a complaint by parties aggrieved by a rate filing. Rather, this is an action to enjoin violation of a statute that requires adherence to rates which have been promulgated and approved. While defendants argue in brief that their lower rate schedule was properly filed and became effective by operation of law when not timely disapproved, this argument addresses itself to the defense of the injunction suit and depends upon facts which have not yet been presented to the trial court.

Furthermore, even if there are administrative remedies available to plaintiff, the requirement of pursuing these remedies does not apply when irreparable loss is involved. West v. Town of Winnsboro, 252 La. 605, 211 So.2d 665 (1968). Moreover, an injunction may be sought, regardless of irreparable injury, when the course of action sought to be enjoined is repro-bated by law. Whalen v. Brinkman, 258 So.2d 145 (La.App. 1st Cir.1972).

As we similarly observed in determining the preceding exception, the issue as to whether or not plaintiffs can prove irreparable injury is not properly raised by the exception of prematurity.

Unauthorized Use of Summary Proceeding

Since we have concluded that plaintiffs are entitled to proceed by injunction, the exception of improper use of summary proceeding must also be overruled.

Non-Joinder of Indispensable or Necessary Parties

The trial court reasoned:

“It is evident, further, that the Insurance Commissioner and the Insurance Commission must be present in these proceedings as necessary parties since the insurance code establishes them as ‘the’ parties with whom rate schedules are to be filed, and who approve or modify rates, and who protect the public interest as well as the rights of aggrieved persons.”

Since this is an action to enjoin two business corporations from violating a prohibitory statute and does not seek approval, disapproval, or adjustment of rate schedules, neither the Louisiana Insurance Rating Commission nor the Commissioner are indispensable or necessary parties.

Defendants argue in brief, however, that if this case goes to trial, they will contest the legality and constitutionality of “Division B” rates, to which plaintiffs seek to compel them to adhere. Defendants, however, have not yet raised these defenses by pleadings or by evidence. With the case in its present posture, we cannot determine the legality of these rates. Therefore, since the relief now requested by plaintiffs does not affect either the Commission or the Commissioner (C.C.P. art. 641), and since the joinder of these parties is not necessary for a complete adjudication of the controversy raised by plaintiffs (C.C. P. art. 642), the exceptions of non-joinder must be overruled.

Improper Venue

The venue provided in R.S. 22:1360 (deemed to be applicable by the trial court) applies by its terms only to' a review of the Commissioner’s “order refusing a hearing or an order on hearing.” Furthermore, venue in an action against the Commissioner (argued to be applicable by defendants) is not relevant, since we have decided that the Commissioner is not an indispensable party.

Venue in a suit for injunction is determined by the general rules of venue provided in C.C.P. art. 42. Defendants do not disagree that Orleans Parish is the proper venue under those rules.

Accordingly, the judgment of the trial court maintaining the exceptions of no right of action, prematurity, unauthorized use of summary proceeding, non-joinder of indispensable or necessary parties and improper venue is reversed, and it is now ordered that these exceptions be overruled. The case is remanded to the trial court for further proceedings. Assessment of costs will await final disposition of the case.

Reversed and remanded.

LEMMON, Judge,

(concurring in denial of application for rehearing).

On application for rehearing, defendants “concede a violation of the Insurance Code” if their lower rate schedule is not validly in effect.

Our opinion simply held that the issue as to the validity of these rates was not properly raised by any of the exceptions filed in the trial court, but rather constituted a defense to the suit to enjoin use of illegal rates in violation of a prohibitory law.

Obviously, any action to enjoin violation of a prohibitory law must fail if the proof at the trial on the merits does not show that the prohibitory law is being violated. We simply held that plaintiffs are entitled to a trial on the merits of this issue.

      . R.S. 22:1408, subd. D by its terras applies to a party “aggrieved with respect to any filing which is in effect”. (Emphasis supplied)

      . Plaintiffs were not allowed to present evidence on the issue of irreparable injury. Pursuant to C.C.P. art. 1636 plaintiffs did file several documents bearing on the issue, and counsel stated that two other title insurers had applied for similar deviations which were denied.
      Nevertheless, we do not comment on the sufficiency of the evidence on that issue; we simply hold that plaintiffs are entitled to present such evidence in support of their petition for injunction.

      . This is also the proper venue for an injunction brought by the Commissioner under R.S. 22:1366.


author: GULOTTA, Judge. LEMMON, J.

text:
    NATIONAL AMERICAN BANK OF NEW ORLEANS v. John J. HOSEN.
    No. 6804.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 15, 1975.
    Rehearing Denied Dec. 9, 1975.

      Carl & Roussel, James H. Leveque, III, New Orleans, for plaintiff-appellant.
    Levith & Butler, Raymond D. Levith, New Orleans, for defendant-appellee-appel-lant.
    Before LEMMON, GULOTTA and BOUTALL, JJ.
   GULOTTA, Judge.

Plaintiff appeals from a judgment dismissing its claim for deficiency judgment and from a judgment in favor of defendant based on a reconventional demand for the illegal seizure and sale by executory process of defendant’s mortgaged automobile. Defendant also appeals. His appeal strikes at the inadequacy of the amount of the judgment in reconvention and particularly on the failure of the trial judge to include attorney’s fees in the award in re-convention.

Executory process was obtained in the Parish of Jefferson where the automobile was located and where defendant lived at the time of the purchase of the vehicle. In the executory process proceeding a curator ad hoc was appointed to represent defendant based on plaintiff’s allegations that Hosen was a non-resident and that he could not be found after a due and diligent search. The claim for deficiency judgment was filed in the Parish of Orleans. In dismissing plaintiff’s claim for deficiency judgment, the Orleans Parish trial judge found that proper notice of seizure and sale was not served upon the debtor in the executory process proceeding as required under LSA-C.C.P. art. 2721. The trial judge concluded that the appointment of a curator ad hoc to represent the “absentee” was not properly made since a diligent search was not conducted to ascertain the whereabouts of defendant, and representations made by plaintiff that defendant could not be found and was a non-resident of the state were erroneous. See LSA-C. C.P. art. 5251.

Counsel for the piaintiff bank admits that the allegation that defendant was a non-resident was in error. The issue, then, raised on the merits is whether a diligent effort was made to ascertain the whereabouts of defendant necessitating the appointment of a curator ad hoc. However, we do not reach the merits of this matter because we are confronted with a procedural problem, i. e., whether jurisdiction was vested in the Civil District Court for the Parish of Orleans to consider a claim for deficiency judgment when the defense to the claim was the illegality of the notice of seizure and sale in the executory process proceeding, and whether the Civil District Court had jurisdiction to award damages for wrongful seizure growing out of those executory process proceedings in the 24th Judicial District Court for the Parish of Jefferson.

Defendant, while seeking damages in re-convention for wrongful seizure and sale, does not attack the executory process proceeding, but asserts the illegality of the appointment of a curator ad hoc as a defense to the deficiency judgment. Nevertheless, a determination of whether or not plaintiff is entitled to deficiency judgment and whether plaintiff in reconvention is entitled to damages for wrongful seizure is inherently based upon a determination of the validity of the executory process proceeding.

We are aware of that line of jurisprudence as reflected by Associates Discount Corporation v. Bankston, 246 So.2d 335 (La.App., 1st Cir. 1971), writ refused, 258 La. 765, 247 So.2d 864 (1971), which permits an opposition to a claim for deficiency judgment based on the invalidity of the executory process proceeding. However, in Associates Discount Corporation v. Bankston, supra, the court apparently did not have the venue problem posed in the instant case.

Our situation is similar to the problem confronting the court in Licoho Enterprises, Inc. v. Succession of Champagne, La., 283 So.2d 217 (1973), in a case where a judgment was obtained against the decedent in Orleans Parish on a note and a subsequent suit was filed in New Iberia Parish to include the judgment on the note on the tableau of distribution of the judgment debtor in New Iberia where the succession was opened. In the opposition to the claim in New Iberia, the executrix raised the defense that the judgment in the Orleans Parish court (a default judgment) was obtained by fraud and ill practice, although she had already filed a suit for nullity of judgment in Orleans Parish. The Supreme Court in Licoho concluded that the judgment of the Orleans Parish court could not be collaterally attacked in the New Iberia court on the basis of fraud and ill practice. The Supreme Court relied on LSA-C.C.P. art. 2006 which states:

“An action to annul a judgment must be brought in the trial court, even though the judgment sought to be annulled may have been affirmed on appeal, or even rendered by the appellate court.” (italicize ours)

LSA-C.C.P. art. 44 indicates that the requirement set forth in LSA-C.C.P. art. 2006 is non-waiverable. The Licoho court concluded that the main demand asking that the judgment on the note against the decedent be included on the list of debts of the succession in New Iberia be severed from the reconventional demand asserting the nullity of the judgment on the note. The court further stated the reconventional demand ordinarily would be transferred to Orleans Parish for hearing while the main demand would be stayed in New Iberia until a determination was made by the Civil District Court on the nullity of the judgment in Orleans Parish. However, the Supreme Court said in Licoho that since the issue of the nullity of the Orleans Parish court judgment has been raised by a petition for nullity by the executrix in Orleans Parish, no need existed in that particular case to transfer the reconventional demand from New Iberia to Orleans Parish. Presumably, under Licoho, when the nullity question is resolved in Orleans Parish, then the judgment in Orleans would be dis-positive of the issues in the reconventional demand filed in New Iberia. While the Licoho case does not involve an executory process proceeding, the reasoning of Lico-ho is applicable to the instant case.

Applying the rationale of the Supreme Court in Licoho, we are compelled to set aside the judgment of the trial court. The judgment dismissing the claim for deficiency judgment and awarding damages is set aside and rescinded. It is now ordered that plaintiff’s claim for deficiency judgment he severed from the reconventional demand for damages, and the demand in reconvention transferred to the 24th Judicial District Court for the Parish of Jefferson under the authority of LSA-C.C.P. art. 465 and art. 121 as stated by the Supreme Court in Licoho. The claim for deficiency judgment is stayed in Orleans Parish pending the determination of the reconventional demand based on the claim for wrongful seizure and sale in the execu-tory process proceeding.

Judgment set aside; plaintiff’s suit stayed; defendant’s reconventional demand transferred.

LEMMON, J.

(dissenting from Denial of Application for Rehearing).

A judgment absolutely void because of jurisdictional defects is not subject to the venue and delay requirements of an action for nullity prescribed by C.C.P. art. 2006 and thus may be attacked collaterally in any court at any time. Tannehill v. Tannehill, 226 So.2d 185 (La.App. 3rd Cir. 1969); Tracy v. Dufrene, 240 La. 232, 121 So. 2d 843 (1960); Decuir v. Decuir, 105 La. 481, 29 So. 932 (1901). See, C.C.P. art. 2006, Official Revision Comment. This rule applies even when the grounds asserted for nullity of the judgment (or of the order of executory process in the present case) are not obvious on the face of the pleadings and must be shown by extrinsic evidence. Restatement, Judgments §§ 11, 12 (1942).

The contrary view is apparently based on the presumption of regularity accorded to judgments. Nevertheless, if I were sued in Caddo Parish and a money judgment was rendered based on a fraudulent return of the service of process, and if my property in St. Charles Parish were then seized in execution on the judgment, should I be compelled to go to Caddo Parish to present extrinsic evidence to nullify the judgment in a court which never obtained jurisdiction over me in the first place? I find no justification for such a rule.

I admit justification, however, for a rule requiring the nullity action to be tried in Caddo Parish if I were legally served in the suit filed in Caddo Parish and, if I failed to appear, a money judgment were then obtained by fraud there. Under those circumstances (similar to the circumstances of the Licoho case), the judgment is not absolutely void for jurisdictional defects and must be attacked directly within the prescribed time limit.

      . “The sheriff shall seize the property affected by the mortgage or privilege immediately upon receiving the writ of seizure and sale, but not before the expiration of the delay allowed for payment in the demand required by Article 2639, unless this demand has been waived.
      “The sheriff shall serve upon the defendant a written notice of the seizure of the property.”

      . Except where the context clearly indicates otherwise, as used in this Code:
      “(1) ‘Absentee’ means a person who is either a nonresident of this state, or a person who is domiciled in but has departed from this state, and who has not appointed an agent for the service of process in this state in the manner directed by law; or a person whose whereabouts are unknown, or who cannot be found and served after a diligent effort, though he may be domiciled or actually present in the state; or a person who may be dead, though the fact of his death is not known, and if dead his heirs are unknown.”

      . See Reed v. Meaux, La., 292 So.2d 557 (1973) for discussion of executory process and nullity of judgment.

      . “When the court is of the opinion that it would simplify the proceedings, would permit a more orderly disposition of the case, or would otherwise be in the interest of justice, at any time prior to trial, it may order a separate trial of cumulated actions, even if the cumulation is proper.”

      . “When an action is brought in a court of improper venue, the court may dismiss the aetion, or in the interest of justice transfer it to a court of proper venue.”

      . The Official Revision Comment to C.C.P. art. 2004, cited in Licoho Enterprises, Inc. v. Champagne, La., 283 So.2d 217 (1973), restates the jurisprudence to the effect that nullity of a jurisdictionally valid judgment obtained by fraud or ill practice must be asserted in a direct action and not by collateral attack.


author: BARNETTE, Judge.

text:
    SUCCESSION OF Adam J. KELLY and Nina M. Pellegrin Kelly v. Evelyn L. Kelly SCHAUFF,
    No. 10513.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 24, 1975.

      Ernest A. Kelly, Houma, for appellants.
    Frank S. Normann, New Orleans, and Huntington B. Downer, Jr., Houma, for Evelyn L. Kelly Schauff.
    Before LANDRY, COVINGTON and BARNETTE, JJ.
   BARNETTE, Judge.

The appellants have appealed a judgment of the District Court denying their motion seeking the removal of the administratrix. Since that judgment was rendered and the appeal taken, the adminis-tratrix has been removed for reasons other than those complained of by appellants, and one of the appellants has been appointed administrator of the succession in her place and stead and has qualified by taking the oath and filing bond as required by law. No appeal was taken from the judgment revoking the appointment of the ad-ministratrix and removing her from office and appointing a new administrator. The issue of removal of the administratrix appealed is therefore moot and will be dismissed. There remains, however, the issue of penalty provided by Article 3222 of the Code of Civil Procedure.

The decedents, Adam J. Kelly and his wife, Nina M. Pellegrin Kelly, died respectively on January S, 1975 and October 6, 1972. They were survived by three children, namely Ernest A. Kelly, Allen J. Kelly and Mrs. Evelyn L. Kelly Schauf.

The three surviving children, after the death of their father, Adam J. Kelly, agreed among themselves that the successions would be opened with the brother, Ernest A. Kelly, who is a practicing attorney in Terrebonne Parish, to act as attorney and direct the legal proceedings necessary. The sister, Evelyn Kelly Schauf, would be appointed administratrix and the brother, Allen J. Kelly, would sign the administra-trix’s bond as surety. This was done and the administratrix qualified and letters of administration issued on January 22, 1975.

During the course of the administration a “Retirement Annuity Contract” issued to Adam J. Kelly by the National Life and Accident Insurance Company was presented for payment of the proceeds. The first named beneficiary was “Nina P. Kelly, wife” and the second named beneficiary was “Evelyn K. Schauf, daughter.” Since their mother, Nina P. Kelly had predeceased the insured, the two brothers and sister assumed the proceeds would be paid to Evelyn K. Schauf, individually.

Upon presentation of claim for payment it was learned that Mr. Kelly, the insured, had, several months before his death, executed a settlement agreement with the Insurance Company providing for a change of beneficiary, making the proceeds payable to his estate. Accordingly a check in the amount of $17,445.16 was issued payable to Evelyn Kelly Schauf, Administratrix of the Estate of Adam J. Kelly.

Mrs. Schauf protested to her brothers that their father had intended that she, individually, have the proceeds of the insurance contract. Her attorney brother, as her legal adviser and as attorney for the estate attempted to convince her that the change of beneficiary which their father had executed made the proceeds payable to his estate and that it was her duty as administratrix to deposit the funds in the succession account.

A serious dispute raged between the sister, Mrs. Schauf, and her brothers over the proceeds of the insurance contract. Mrs. Schauf sought in vain to have the Insurance Company issue another check payable to her individually. About this point in time Mrs. Schauf engaged private counsel to represent her individually in her dispute with her brothers.

The check in question came into possession of Mrs. Schauf on February 14 and finally deposited by her under protect in the succession account on March 7, 1975. In the meantime, the brothers, Allen J. Kelly and Ernest A. Kelly, on February 20, 1975, filed a motion for removal of the ad-ministratrix under the authority of Article 3222 of the Code of Civil Procedure for failure and “refusal” to deposit the check (or draft) in question, in the Succession Account, promptly. C.C.P. Article 3222 provides as follows:

“A succession representative shall deposit all moneys collect^ by him as soon as received, in a bank account in his official capacity, in a state or national bank in this state, and shall not withdraw the deposits or any part thereof, except in accordance with law.
“On failure to comply with the provisions of this article, the court may render a judgment against the succession representative and his surety in solido to the extent of twenty percent interest per annum on the amount not deposited or withdrawn without authority, such sum to be paid to the succession. He may also be adjudged liable for all special damage suffered, and may be dismissed from office.”

Additionally they alleged that the ad-ministratrix had failed to dispose of “rapidly depreciating” property. The so-called “rapidly depreciating” property consisted of two old automobiles which the movers contended should have been sold pursuant to the order authorizing the sale.

By supplemental motion the two brothers sought to have the brother, Allen J. Kelly, released from the administratrix’s bond and alleged his lack of sufficient property to meet the financial responsibility which he had assumed as surety. In this supplemental motion they seek to have the penalty provisions of C.C.P. Article 3222 imposed upon their sister for her failure to promptly deposit the proceeds of the insurance contract in the succession account.

On trial of the rule the facts alleged by the movers were substantially proven. Their sister, the administratrix, did not testify and offered no witnesses in rebuttal. There is, therefore, no serious issue of fact.

The trial judge exercised the discretion vested in him by C.C.P. Article 3222 and said in his written Reasons for Judgment:

“The Court does not believe the delay in depositing the insurance proceeds to be unreasonable under the conditions confronting Mrs. ^Schauf.”

Accordingly he held this was not sufficient cause for removal of the administratrix. He did find, however, that the surety on the bond, Mr. Allen J. Kelly, “does not possess adequate financial resources or property to respond to the extent of the sum of $117,072.81.” [The amount of the bond].

The judgment rendered and signed on April 8, 1975, is in pertinent part as follows :

“IT IS ORDERED, ADJUDGED, AND DECREED that there be judgment herein in favor of the defendant in rule, Mrs. Evelyn L. Kelly Schauf, and against movers in rule, Mr. Ernest A. Kelly and Mr. Allen J. Kelly, rejecting and denying their demands that Mrs. Schauf be removed as administratrix of this succession, and their rule is dismissed;
“IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that the personal surety bond posted by the ad-ministratrix be, and it is hereby declared null and void, and it is set aside;
“IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that the administratrix, Mrs. Evelyn L. Kelly Schauf be, and she is hereby ordered to post a surety bond issued by a good and solvent surety company authorized to do and doing business in the State of Louisiana, within fifteen days from date hereof, and upon her failure to furnish and file said bond in this record as herein ordered, she shall be automatically removed as the administratrix of this succession;
“IT IS FINALLY ORDERED, ADJUDGED, AND DECREED1 that the administratrix, Mrs. Evelyn L. Kelly Schauf, be, and she is hereby ordered and directed not to take any action or to perform any duties as administratrix in this succession until such time as she has furnished and filed in the record a surety bond as hereinabove directed.”

This is the judgment which is now before us on this appeal. It should be noted that it makes no mention of the issue of penalty which the movers pleaded. We will discuss this more fully below.

On April 25, more than fifteen days after the rendition of the foregoing judgment, the brother (and appellant), Allen Joseph Kelly, filed a petition for appointment as administrator, alleging the failure of the administratrix to post the bond ordered by the judgment of April 8. He alleged that Mrs. Schauf had been “automatically” removed from the office administratrix by the express terms of that judgment.

By order of the court on May 8, 1975, the appointment of Evelyn L. Kelly Schauf as administratrix was revoked and she was removed. In the same order the court appointed Allen Joseph Kelly administrator of the succession. On the same day, Allen Joseph Kelly qualified as administrator by filing the oath and bond as required by law and the Court’s order and letters of administration were issued.

No appeal was taken from that order and the removal of Evelyn Kelly Schauf as ad-ministratrix is final. The issue of her removal as presented by the appeal of the judgment of April 8, 1975 is therefore moot and will not be considered.

As stated above, the issue of imposition of penalty under the provisions of C.C.P. Article 3222, which was pleaded and prayed for by appellants in their supplemental and amended motion for removal was not specifically mentioned in the judgment of April 8.

This court said in Nicholson v. Holloway Planting Company, 216 So.2d 562 (La.App. 1st Cir. 1968); writ granted, 253 La. 622, 218 So.2d 900 (1969); affirmed, 255 La. 1, 229 So.2d 679 (1969):

“Our courts have repeatedly held that silence in a judgment as to any part of the demand or prayer made in a litigation is a rejection of that part of the demand or prayer. See R. F. Mestayer Lumber Co. v. Cusack, La.App., 141 So. 2d 166 and Montagne v. Tinker, La.App., 201 So.2d 701.” 216 So.2d 562 at p. 575.

See also Succession of Foster, 240 La. 269, 122 So.2d 96 (1960); Fireman’s Fund Insurance Company v. Myrick, 317 So.2d 632 (La.App. 1st Cir. 1975); Guilbeau v. Guilbeau, 308 So.2d 435 (La.App. 3d Cir. 1975); writ refused, 313 So.2d 239 (La.1975); LaHitte v. Acme Refrigeration Supplies, Inc., 192 So.2d 172 (La.App. 4th Cir. 1966), writ refused, 250 La. 99, 194 So.2d 98 (1967); cert. denied 389 U.S. 821, 88 S.Ct. 44, 19 L.Ed.2d 73 (1967); rehearing denied 389 U.S. 1025, 88 S.Ct. 583, 19 L.Ed.2d 674 (1967).

It is obvious from a reading of the trial judges “Reasons for Judgment” that he did not find the administratrix to have committed any serious breach of duty and that there was no basis for the imposition of the statutory penalty. His failure to specifically so decree in the judgment of April 8 was no doubt an oversight on his part or more likely, perhaps, on the part of the attorney who prepared the judgment. In any event a rejection of the demand for penalty was manifestly within the proper exercise of the discretion vested in the court.

Article 3222 of the Code of Civil Procedure provides that the court may render a judgment imposing a penalty of twenty percent against the succession representative for failure to deposit succession funds “as soon as received.” It further provides: “He [the succession representative] may also be adjudged liable for all special damage suffered, and may be dismissed from office.” (Emphasis added) It is our opinion that this means that the penalty may within the court’s discretion, be imposed without the necessity of also removing the succession representative from office.

For this reason, it is our opinion that the issue of assessment of penalty against the administratrix is properly before us on this appeal and that it is the only issue presented for our consideration, since the principal issue appealed, namely the removal of the administratrix, is moot.

The evidence and all other circumstances clearly support a judgment rejecting the penalty. To hold otherwise under the facts here presented would be a manifest abuse of discretion. The judgment, insofar as it rejects the movers, appellants, demand for penalty will be affirmed.

The appeal insofar as it relates to the judgment rejecting the motion for removal of the administratrix is dismissed as moot. Insofar as the judgment appealed rejects the demand for assessment of penalty, it is affirmed, all at appellant’s cost.

Appeal dismissed in part affirmed in part.


author: LOTTINGER, Judge.

text:
    Walton J. BARNES v. DIXIE ELECTRIC MEMBERSHIP CORPORATION et al.
    No. 10482.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 24, 1975.

      John Schwab and Richard M. Sandefer, Baton Rouge, for appellant.
    Stephen P. Dart, St. Francisville, for ap-pellees.
    Before ELLIS, BLANCHE, and LOT-TINGER, JJ.
   LOTTINGER, Judge.

This case involves the damage to a number of trees belonging to plaintiff, Walton J. Barnes, by defendant-appellants, Dixie Electric Membership Corporation and Chem-Weed, Inc., on real property belonging to Barnes in West Feliciana Parish. Dixie, through its agent, Chem-Weed, by use of helicopter sprayed a path under and adjacent to an electric line owned by Dixie and situated on the property of plaintiff with a chemical for the purpose of killing trees and shrubs in order to prevent them from growing into the electric lines of Dixie. Judgment was rendered in favor of plaintiff, Walton J. Barnes, in the sum of $2,930.00, plus costs, and $110.00 for expert witness fees in connection with the testimony of Mr. Andrew J. Hart. The defendants have suspensively appealed from this judgment of the Lower Court. Plaintiff has answered defendants’ appeal and seeks an increase of the award in his favor.

The issues presented are whether the defendants had a servitude across the property of plaintiff; if so, what were the limits of this servitude, and were such limits exceeded by defendants.

The record contains no reasons for judgment, so we do not know the basis of the judgment of the Lower Court. In light of LSA-R.S. 12:428, we assume that the Lower Court found that the defendants did have a servitude to operate and maintain the electric transmission line in question. LSA-R.S. 12:428 provides:

“A cooperative shall acquire a servitude on an immovable, unless such immovable is owned by the federal or state government or any agency or subdivision thereof, for the operation and maintenance of its electric transmission and distribution lines, along, upon, under or across any such immovable by virtue of the uninterrupted maintenance of such lines without the written or other consent of the owner thereof, along, upon, under or across the immovable for a period of one year; provided such servitude and operation does not interfere with the use of said property by other public utilities; provided further that in all cases where the written consent of the owner for the establishment of a servitude has been obtained and a line has been constructed along, upon, under or across the property under said consent it is not necessary that the written consent be recorded in the conveyance or other records of the parish where the property is located in order to make the servitude effective as to third parties.”

It was uncontradicted at the trial of this matter that the lines in question had been in existence in excess of one year, and in fact had been in existence for more than a year before plaintiff purchased the property.

Plaintiff raises for the first time in these proceedings the constitutionality of LSA-R.S. 12:428, in that it violates Article 5 of and the 14th Amendment to the Unit-ed States Constitution, Article 1, Section 2, and Article 4, Section 15 of the Louisiana Constitution of 1921, and Article 1, Sections 2 and 4 of the Louisiana Constitution of 1974, inasmuch as these provide the “due process” limitations on the power of government which assures that no person shall be deprived of property without “due process of law,” and then, only for public purposes and only after just compensation has been tendered.

The Supreme Court of this state in Summerell v. Phillips, 258 La. 587, 247 So.2d 542, 546 (1971) stated:

“Although several exceptions have been recognized, [footnote omitted] the general rule prevails that a litigant cannot raise the unconstitutionality of a statute or ordinance unless its unconstitutionality is specially pleaded and the grounds particularized, [citation of cases omitted].
******
“As a corollary of the above rule, it is also well accepted that a litigant who fails to plead the unconstitutionality of a statute cannot legally raise the constitutional issue in the appellate court.”

Since we have decided that we cannot consider the question of the constitutionality of the statute, and have agreed with the Trial Judge in his appraisal that a servitude does exist, the question before the court is the rights of the servitude owner, and the extent of those rights in the maintenance and preservation of the servitude. The limits of the servitude in question and the rights of the servitude owner must necessarily revolve around what is reasonable and necessary from the point of view of both parties. While LSA-R.S. 12:428 sets no width for such a servitude, the Trial Judge apparently found twenty feet to be a reasonable width because it appears that the award to plaintiff was for damages outside of a twenty foot width based on the value testified to by plaintiff’s witness and not contradicted by defendants. There must be a balancing' between what is necessary in order for the servitude owner to use his servitude and what the landowner must suffer as a result of the servitude. What is reasonable must be determined upon each particular set of facts. In Sticker v. Southern Bell Telephone and Telegraph Company, 101 So.2d 476 (La.App. 1st Cir. 1958) this court held that in the case of a pole without a crossbar carrying a single line, it was reasonable to clear an area twelve feet in width or six feet on each side of the line. The case before us involves a single pole with a six foot crossbar near the top connected to the pole in the center so that three feet of the crossbar extend to each side of the pole, and one line is strung on each end of the crossbar. Therefore, in the case before us a twenty foot servitude allows just one foot more clearance than was allowed in the Sticker case in that here there would be a seven foot clearance from each of the two lines. We find no error in the determination by the Trial Judge that twenty feet was a reasonable width for the servitude in question.

The electric lines in question passed through property on which plaintiff planned to make his home site and one of his considerations in purchasing said property was the trees located thereon. The property was the site of Greenwood Plantation, the old home site of which is located in an Oak park with approximately 100 oak trees dating back to 1830 and layed out in a square pattern directly in front of the old home site. With this setting in mind, we find that the Trial Judge had more than ample basis for determining that the defendants exceeded the limits and rights of their servitude by the spraying of chemicals in certain areas for a width in excess of twenty feet. On the other hand, we do not find that the Trial Judge abused the great discretion he has in fixing damages outside of the twenty feet width, and therefore, we will not increase the quantum awarded plaintiff.

For the above and foregoing reasons the judgment of the Lower Court is affirmed at the defendant’s costs.

Affirmed.


text:
    Willie BUTLER v. TRAVELERS INSURANCE COMPANY.
    No. 10475.
    Court of Appeal of Louisiana, First District.
    Nov. 24, 1975.

      Arthur Cobb, Baton Rouge, for appellant.
    W. Luther Wilson, Taylor, Porter, Brooks & Phillips, Baton Rouge, for appel-lee.
    Before LANDRY, COVINGTON and BARNETTE, JJ.
   BARNETTE, Judge.

This is a suit in tort arising from a vehicular collision which occurred on May 17, 1974 shortly after 4:30 P.M. Mary W. Pitts, while having mechanical difficulty with her car, was struck from behind by the plaintiff, Willie Butler. Plaintiff now brings suit against Travelers Indemnity Company, Mrs. Pitts’ insurer, for personal injuries and special damages, as a result of the collision.

Both parties to the accident were traveling north on Interstate 10 approximately one mile north of the Government Street exit in Baton Rouge. I — 10 in the vicinity of the collision is an elevated, controlled-access highway comprised of four north bound lanes. It was a clear day. The concrete road surface was dry, straight and level, and the posted speed limit was 50 miles per hour. Both parties were in the right center lane of the four lanes. The traffic was congested and vehicles were present in both adjoining lanes.

Mrs. Pitts testified that she entered the Interstate from Washington Street. After getting on the Interstate her car began cutting out. It sputtered along for an estimated four or five minutes but had begun picking up speed as the plaintiff struck her. She denied having been completely-stopped either earlier or immediately before the collision.

Likewise, the plaintiff, Willie Butler, had entered the Interstate Highway at Washington Street. He testified that he was traveling 35-40 miles per hour in the “middle lane” about two car lengths behind another car. He did not see the Pitts car until the preceding car switched lanes to avoid a collision. He stated that he was “almost up on her” before seeing her and that she was stopped. The plaintiff further testified that he could not avoid the accident by changing to either the right or left adjacent lanes because of the presence of other traffic. He stated that at this point he then “jammed” on his brakes and slid into the Pitts car.

Also riding in Butler’s car were two guest passengers, Harold Collins, a friend, and Geraldine Butler, plaintiff’s wife. Only Mrs. Butler’s testimony is in the record before us. She testified as to the heavy traffic to either side of plaintiff’s car. Mrs. Butler also stated that Mrs. Pitts was stopped and that she first saw the Pitts car as her husband applied his brakes.

The plaintiff contends that Mrs. Pitts violated La.R.S. 32:141 and that her negligence in so doing was the proximate cause of the accident and his resultant injuries. La.R.S. 32:141 reads as follows:

“Stopping, standing or parking outside business or residence districts.
“A. Upon any highway outside of a business or residence district, no person shall stop, park, or leave standing any vehicle, whether attended or unattended, upon the paved or main traveled part of the highway when it is practicable to stop, park or so leave such vehicle off such part of said highway, but in every event an unobstructed width of the highway opposite a standing vehicle shall be left for the free passage of other vehicles and a clear view of such stopped vehicles shall be available from a distance of two hundred feet in each direction upon such highway.
“B. The provisions of this Section shall not apply to the driver of any vehicle which is disabled while on the main traveled portion of a highway so that it is impossible to avoid stopping and temporarily leaving the vehicle in that position. However, the driver shall remove the vehicle as soon as possible, and until it is removed it is his responsibility to protect traffic.
“C. The driver of any vehicle left parked, attended or unattended on any highway, between sunset and sunrise, shall display appropriate signal lights thereon, sufficient to warn approaching traffic of its presence. Acts 1962, No. 310, § 1.”

The trial court, after considering the testimony and demeanor of the witnesses before it, found that:

“. . . [T] he plaintiff has failed to establish, one, that she [Mrs. Pitts] was actually stopped at the time of the collision, and, two, that if she was, in fact, stopped that she had time in which to set out reasonable signals and take precautionary steps to avoid the accident.”

Thus, the trial court found that the plaintiff failed to, one, establish by a preponderance of the evidence that Mrs. Pitts was stopped at the time the collision occurred so as to invoke the applicability of R.S. 32:141; or, two, that even if she was in fact stopped, the plaintiff failed to show by a preponderance of the evidence that Mrs. Pitts failed to remove the vehicle as soon as possible or that she had time to reasonably discharge whatever responsibility the statute imposed upon her in such emergency to protect other motorists on the highway. How much time the disabled motorist has to remove his vehicle and/or to make an effort to protect other persons, and what constitutes an adequate warning to other drivers are questions that depend on the circumstances of each situation. Riels v. Howell, 243 So.2d 280 (La.App. 3rd Cir. 1971); Boyd v. Damico, 230 So.2d 425 (La.App. 3rd Cir. 1969) and Phillips v. Garden, 211 So.2d 735 (La.App. 2nd Cir. 1968).

We can find no manifest error in the trial court’s above findings. The trial court noted the conflict in the testimony between Mrs. Pitts, on one hand, and the plaintiff and his wife on the other, as to whether Mrs. Pitts was actually stopped. Where there is a direct conflict of testimony between witnesses as here, it is within the peculiar competence of the trial court to decide who to believe and for this reason the manifest error rule is applicable on review of the facts on appeal.

In addition, it should be noted that there were some allegations that in the police report offered in evidence Mrs. Pitts stated that her car had come to a complete stop. As aptly noted by the trial court, Mrs. Pitts had actually stated in the original police report that her car had been stopped briefly but that she got it started and had begun to move.

The facts in this case make the decision in Boyd v. Damico, supra, particularly relevant. There the court said :

“The record shows that Mrs. Damico began having trouble with the motor of her car, which began missing only about five minutes before the time of the accident. During this time, she proceeded forward a distance, with the motor stopping and starting. She reached the position where her car was struck only a short time before the accident, and did not get out of the car, but continued to try to get it started again. It was not possible for her to pull off the road to the right completely as the unpaved and wet shoulder was only two or three feet wide. [Here she was prevented by traffic] Since it was day time and her car was stopped on a straight portion of the highway, she had a right to assume that anyone driving on the highway would be able to observe her. In view of the short period of time involved, we believe Mrs. Damico was taking reasonable action in trying to get the motor of her car started again so that she could proceed fo'rward. The question is whether or not Mrs. Damico was negligent in unreasonably obstructing the highway without adequately warning approaching traffic. Considering the facts and circumstances of this case, this Court does not find that her actions constituted such negligence.” (Emphasis added) 230 So.2d at p. 429

The plaintiff citing Gautreaux v. Pierre, 254 So.2d 476 (La.App. 3d Cir. 1971), further argues that “even if it were proven the Pitts’ vehicle was not completely stopped it was nontheless in a position which impeded the free passage of other vehicles on the Interstate and this interference alone would indicate negligence.” We must reject plaintiffs argument for, among other reasons, we do not agree with plaintiff’s interpretation of the Gautreaux opinion. Gautreaux was decided under R. S. 32:141. The defendants there were stopped. One parked his car in the center of the north bound lane of a two lane highway completely obstructing that lane. The other parked on the opposite shoulder with approximately one foot of his vehicle on the traveled (south bound) portion of the highway. It was dark and the vehicles were unlighted. The court said “clearly the mandates of the statute [La.R.S. 32:141] were violated by both Pierre and Senegal since both parked their automobiles on the highway without benefit of warning lights, and such violation was negligence per se.” (Emphasis added) It should be noted .that display of signal lights is required only “between sunset and sunrise.” The Gautreaux case is not apposite to the facts in this case.

Counsel for plaintiff, appellant has argued that even if the Pitts vehicle was not completely stopped it was being operated in such manner as to impede the normal and reasonable movement of traffic. We take cognizance of La.R.S. 32:64 subd. B which prohibits the driving of “a motor vehicle upon the highways of this state at such a slow speed as to impede the normal and reasonable movement of traffic” but that does not apply in a situation of emergency absent some proof of negligence by the driver of such vehicle.

In making reference above to La. R.S. 32:141, we are cognizant that it is expressly limited in application to highways “outside of a business or residence district.” Chatagnier v. Allstate Insurance Company, 248 So.2d 590 (La.App. 3rd Cir. 1971). We take judicial notice that the location in question is well within the City of Baton Rouge and in an area near the downtown business district. It is our opinion, considering the intent and purpose of the statute, that the exception or limitation on its applicability does not apply to a section of the Interstate Highway system with controlled access, merely because the section in question is within the proximity of a business or residential district.

There is no manifest error in the factual findings of the trial court.

The judgment appealed is affirmed at appellant’s cost.

Affirmed.


author: COVINGTON, Judge:

text:
    Mrs. Doris P. GRAVER v. MATERIALS EVALUATION LABORATORY, INC.
    No. 10451.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 24, 1975.
    Ronald L. Causey and Patsy Jo McDowell, Baton Rouge, for appellant.
    William H. Cooper, Jr., Baton Rouge, for appellee.
    Before LANDRY, COVINGTON and BARNETTE, JJ.
   COVINGTON, Judge:

Mrs. Doris P. Graver, plaintiff-appellant, prosecutes this devolutive appeal against Materials Evaluation Laboratory, Inc., defendant-appellee, after denial by the trial court of wages allegedly due her in regard to services performed for the defendant corporation, whose exception of no cause of action was referred to the merits. We affirm.

The plaintiff was married to the President of defendant corporation (hereinafter referred to as defendant). From its inception, in January of 1972, the defendant, a close knit corporation, operated from the home of the plaintiff and her husband, Dr. Gary Paulson. The business was a small operation owned by Dr. Paulson and the appellant, at that time Mrs. Doris Paulson, and Dr. Ray Ferrell along with his wife, Susan Ferrell, each family owning a fifty per cent (50%) share of the corporation. Later in 1972, the defendant moved part of its operation to Gulf South Research Institute (GSRI) and retained its office at the Paulson’s residence. Thereafter, the office was moved to GSRI.

In the trial court, appellant contended that she was employed by defendant as its secretary and often performed other duties in furtherance of defendant’s operation.

She alleges that she was promised Four Hundred Dollars ($400.00) per month to be paid as soon as the corporation could afford to pay her, dating from the day she was hired as its secretary. The defendant contends that in late 1973, it was decided that appellant would be placed on salary at $400.00 per month beginning January 1, 1974. This suit is to collect $400.00 per month from February, 1972, through January, 1974. The court notes that Graver Exhibit 12 indicates that she was in fact paid in January, 1974. Messrs. Paulson and Ferrell denied that any agreement to pay appellant $400.00 per month was made until late in 1973, to begin January 1, 1974. Further, Dr. Ferrell testified that she was paid a like amount for February, 1974; and in March, 1974, because of increasing domestic friction between appellant and her husband, she was terminated and was given two months pay. Parenthetically, the Paulsons were divorced on April 4, 1974, and executed a community property settlement agreement on May 2, 1974, wherein Mr. Paulson received their stock in the corporation. The trial court, finding no evidence of an agreement as alleged by appellant, dismissed her claim.

The trial judge in his Oral Reasons For Judgment stated:

“We have a community of acquets and gains in this state and the joint effort of the husband and wife go into making up the community.”

The trial judge also stated that:

“This was a family undertaking between two friends hoping to make a business venture work, but unfortunately, one of the marriages went sour, and that’s about it. There is no way I can award the plaintiff what she seeks to recover, this four hundred dollars a month, because I think she has failed to prove her case.”

Appellant contends in this court that the trial court erred in ruling that she failed to carry the burden of proof of establishing by a preponderance of the evidence the existence of an agreement to compensate the appellant for her services. Our Supreme Court has given us a carefully considered opinion in Canter v. Koehring Company, La., 283 So.2d 716, 724 (1973) setting out the principle of appellate review of facts as follows:

“When there is evidence before the trier of fact which, upon its reasonable evaluation of credibility, furnishes a reasonable factual basis for the trial court’s finding, on review the appellate court should not disturb this factual finding in the absence of manifest error. Stated another way, the reviewing court must give great weight to factual conclusions of the trier of fact; where there is conflict in the testimony, reasonable evalúa-tions of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. The reason for this well-settled principle of review is based not only upon the trial court’s better capacity to evaluate live witnesses (as compared with the appellate court’s access only to a cold record), but also upon the proper allocation of trial and appellate functions between the respective courts.”

In appellant’s brief, she alludes to the fact that Dr. Paulson and Dr. Ferrell received a substantial sum in December of 1973, and that she could have been paid from that money. Suffice it to say that any monies received by Dr. Paulson were certainly community in nature and enhanced the community. It is difficult to understand why she complains, when she introduced into evidence the community property settlement, evidencing the receipt of her portion of the community wherein the stocks in defendant corporation were accounted for and each party received equal value from the community.

Furthermore, under the provisions of Article 2334 of the Civil Code of Louisiana, any salary earned by the appellant while living with her husband would be community property. Likewise, a claim for payment of such earned salary would be a community asset. It is very significant, we think, that the community property settlement between them, after divorce, fails to mention any such asset. This further strengthens our opinion that there was no agreement for payment of the salary which plaintiff-appellant has made the object of this suit.

On appeal, appellant seeks alternative relief based upon a quasi contract or quantum meruit basis. Our conclusions, above stated, negate such recovery.

For the reasons herein discussed, the ruling of the trial court is affirmed, plaintiff-appellant to pay all costs of this court.

Affirmed.


author: PER CURIAM.

text:
    THE FLORIDA BAR. Petition of Samuel RUBIN For Reinstatement.
    No. 46555.
    Supreme Court of Florida.
    June 4, 1975.
    Rehearing Denied Dec. 4, 1975.
    Ben Cohen, Cohen & Hogan, Miami Beach, for petitioner.
    Charles H. Baumberger, Bar Counsel, Miami, and John A. Weiss, Asst. Staff Counsel, Tallahassee, for respondent.
   PER CURIAM.

This matter is here on a petition for reinstatement to The Florida Bar. Petitioner was suspended from the practice of law for six months by this Court’s order dated February 21, 1974. Prior to the expiration of his six-month suspension, petitioner filed a request for reinstatement with The Florida Bar. An evidentiary hearing was conducted before a referee, at which time petitioner sought to establish rehabilitation by his direct testimony, the testimony of one other witness and by filing four personal letters supportive of his petition. The Bar introduced evidence of petitioner’s prior disciplinary proceedings, evidence of unsatisfied liens and judgments (at least one of which petitioner did not report in his required financial statement), and evidence of prior judicial directives seeking to require petitioner’s compliance with court orders (including jail time served for civil contempt). The Bar also endeavored to refute petitioner’s assertions of rehabilitation through cross-examination.

The referee filed a written report recommending against reinstatement, and the Bar’s Board of Governors voted to approve the recommendation. Petitioner brought the matter here and requests that we direct reinstatement, alleging (i) that the evidence shows rehabilitation sufficient to warrant his return to the practice of law, (ii) that the Bar erroneously introduced into evidence prejudicial matters unrelated to the issue of reinstatement, such as prior disciplinary and financial matters which were before this Court when his six month suspension was ordered, and (iii) that a refusal to lift the suspension upon this record is tantamount to disbarment.

We have reviewed the testimonial trans-script, the referee’s findings and all other pertinent documents, and we do not find any error in the recommendation against reinstatement.

The right to practice law is conferred or withheld on the basis of factors not customarily considered in the licensing of tradesmen or businessmen. Because of a lawyer’s interaction with the public, a wide range of factors may be considered in determining whether an individual shall be allowed to enter or resume this profession. An attorney once removed or suspended must demonstrate rehabilitation, and the burden of doing so requires more than recitations of intent and contrition. Unsatisfied judgments, and a failure to acknowledge judgment liens in a personal financial statement filed for the purpose of demonstrating reinstatement, are antithetical to an affirmative showing of rehabilitation. They do not demonstrate that a lawyer suspended for “violations of his oath as an attorney” has progressed in his understanding of professional responsibility to the point that he may now be reposed with the publi.'s trust.

Petitioner argues that evidence of prior disciplinary action should not be considered in a reinstatement proceeding because it should have been considered (whether it was or not), and would have been a factor, in the disciplinary proceeding which generated the suspension. We disagree. It was proper for the referee to accept evidence of prior disciplinary proceedings, among other things, for the purpose of comparing prior and current conduct and the referee’s report in this case indicates that evidence of prior misconduct was considered for that express purpose. It was also proper for the referee to consider and weigh the degree of contrition and the attitude expressed by petitioner at his hearing. The referee found these intangible factors wanting in petitioner’s case. Petitioner offered no corroborating evidence of repentence.

The referee found that petitioner had not met his burden of showing rehabilitation, and the record supports the referee’s finding. The referee’s report is approved. Petitioner may in due course again apply for reinstatement in accordance with Integration Rule 11.11.

ADKINS, C. J., and BOYD, OVERTON and ENGLAND, JJ., concur.

McCAIN, J., agrees in conclusion only.

      . The Florida Bar v. Rubin, 289 So.2d 1 (Fla.1974).

      . Petitioner’s right to practice law in Florida after a six-month suspension requires the approval of this Court based on a showing of rehabilitation. Fla.Bar.Integr.Rule, art. 11, rules 11.10(3), 11.11(10).

      . In re Rubin, 150 Fla. 783, 9 So.2d 190 (1942) (suspension for ethics violations); State ex rel. The Florida Bar v. Rubin, 153 So.2d 716 (Fla.1963) (reprimand for professional misconduct).

      . Petition of Wolf, 257 So.2d 547, 550 (Fla.1972).

      . The Florida Bar v. Rubin, 289 So.2d 1, 3 (Fla.1974).

      . Petition of Wolf, 257 So.2d 547, 548 (Fla.1972).

      . Petition of Wolf, 257 So.2d 547, 549 (Fla.1972); In re Dawson, 131 So.2d 472, 474 (Fla.1961).

      . In re Dawson, supra note 7.

      . Fact finding in disciplinary matters should not be overturned unless wholly lacking in evidentiary support. State ex rel. The Fla. Bar v. Bass, 106 So.2d 77 (Fla.1958); State ex rel. The Fla. Bar v. Bennett, 246 So.2d 107 (Fla.1971). See also Integr.Rules 11.09 (3) (e) and 11.11.