author: SANDERS, Chief Justice.

text:
    Lester L. DUCOTE, Jr. v. Neva S. DUCOTE.
    No. 58189.
    Supreme Court of Louisiana.
    Nov. 8, 1976.
    Rehearings Denied Dec. 10, 1976.

      James E. Diaz, Davidson, Meaux, One-bane, Donohoe, Bernard, Torian & Diaz, Lafayette, for defendant-applicant.
    Seth Lewis, Jr., Lewis & Lewis, Opelou-sas, for plaintiff-respondent.
   SANDERS, Chief Justice.

Neva S. Ducote sought a review of the Court of Appeal’s judgment affirming the district court’s decree ordering Dr. Lester L. Ducote, Jr., her former husband, to pay her $400.00 for alimony and $600.00 for child support. La.App., 331 So.2d 133 (1976). We granted a writ to review the judgment. La., 334 So.2d 220 (1976).

The parties married in 1957 and divorced in 1970. The divorce judgment awarded Mrs. Ducote the custody of their four minor children and an alimony and child support stipend of $900.00 per month.

Dr. Ducote ceased practicing medicine in 1973 to pursue graduate studies which would enable him to specialize in cardiology. Due to substantial loss of income, the parties stipulated to a reduction of the payments to $800.00 a month. The court entered judgment accordingly.

At the end of June, 1974, Lester J. Du-cote, the only son, left his mother’s home and began to live with his father.

In January, 1975, the father instituted proceedings seeking the permanent custody of his son and a reduction of the monthly support payments. Mrs. Ducote filed a counter-claim requesting that the payments be increased to $1,465.50 per month. After separate hearings on the demands, the court transferred the custody of Lester to the father and granted Mrs. Ducote an increase of the award to $1,000.00, $400.00 for alimony and $600.00 for child support.

Dr. Ducote appealed the judgment increasing the support payments. In her answer, Mrs. Ducote prayed for an increase of the payments to $1,465.00. As we have noted, the Court of Appeal affirmed.

Mrs. Ducote alleges that the Court of Appeal erred in failing to grant her full demand for alimony and support.

Article 160 of the Louisiana Civil Code vests the court with discretion in awarding a wife who is not at fault permanent alimony after divorce. The proper award is that amount which will provide the wife with sufficient means for her maintenance. The alimony payment may never exceed one-third of the husband’s income.

In Bernhardt v. Bernhardt, La., 283 So.2d 226 (1973), this Court outlined the parameters of the term “maintenance.” We stated:

“Common sense dictates that the term ‘maintenance’, while meaning primarily food, clothing and shelter, does include such items as reasonable and necessary transportation or automobile expenses, medical and drug expenses, utilities, household expenses, and the income tax liability generated by the alimony payments made to the former wife.”

See also Kent v. Kent, La.App., 323 So.2d 817 (1975); Perry v. Perry, La.App., 319 So.2d 479 (1975), cert. denied, La., 322 So.2d 775 (1975); Bryant v. Bryant, La.App., 310 So.2d 648 (1975).

For a court to alter an alimony award established by a consent judgment the party seeking modification must show a change in circumstances of either party from the time of the award to the time of the trial of the alimony rule. Bernhardt v. Bernhardt, supra; Fisher v. Fisher, La.App., 320 So.2d 326 (1975); Swider v. Swider, La.App., 314 So.2d 372 (1975), cert. denied, La., 320 So.2d 551 (1975).

Mrs. Ducote urges that the monthly alimony payments should be increased to $600.00 because Dr. Ducote’s income has substantially increased since 1973, and because the cost of living has risen.

In rebutting this contention, Dr. Ducote points out that with the monthly award of $800.00 she has been able to manage a household of five people, remain current on her bills, live in a very nice neighborhood, provide the proper schooling, clothing, and food for herself and her children, and make contributions to her church.

The fact that the cost of living has risen does not alone constitute such a change in circumstances that warrants an increase of an alimony award. These higher costs affect both parties equally. Moreover, since the percentile of inflation fluctuates monthly, a court would be hard pressed to arrive at an accurate figure to reflect this factor. See, Fakouri v. Perkins, La.App., 322 So.2d 401 (1975); Gennaro v. Gennaro, La.App., 306 So.2d 756 (1975), cert. denied, La., 310 So.2d 844 (1975).

Mrs. Ducote’s evidence demonstrates that the physician’s income was formerly $7,800.00, whereas, in 1975 his gross income was approximately $163,000.00. The evidence thus reflects an estimated $155,200.00 annual difference from the time of the award to the time of the trial of these proceedings. The physician has since remarried.

Mrs. Ducote’s monthly bills include a $208.50 home mortgage note, property taxes, house insurance, household expenses, utilities, telephone, food, clothing, medical bills, and income tax. We agree with the lower courts that the composite monthly budget is exaggerated. We find, however, that the evidence supports an additional amount of $100.00 monthly for the wife’s maintenance, or an award of $500.00 per month as alimony.

Louisiana Civil Code Article 227 provides that parents have the obligation to support, maintain, and educate their children. This support shall be granted in proportion to the needs of the child and the circumstances of the parent who is to pay. LSA-C.C. Art. 231. If the parents are divorced and the children are living with their mother, the children are entitled to the same standard of living as if they resided with their father whenever the financial circumstances of the father permit. Wilmot v. Wilmot, 223 La. 221, 65 So.2d 321 (1953); Sarpy v. Sarpy, La.App., 323 So.2d 851 (1975), cert. denied, La., 328 So.2d 166 (1976); Phillips v. Phillips, La.App., 319 So.2d 566 (1975).

Dr. Ducote stipulated at the trial that he was financially able to pay the full amount Mrs. Ducote prays for.

Mrs. Ducote alleges that the father’s monthly child support payments should be increased to $865.50. To justify this increase she points to the extraordinarily high earnings of the father, the higher cost of living, and the additional expenses for the children.

Dr. Ducote contends that since one child has been transferred from her custody to his, the child support payments should reflect that she is now only responsible for the three girls.

Mrs. Ducote has failed to show that the daughters residing with her (ages 14, 10, and 9) are subject to a lower standard of living than that which would be afforded them living with their father. Their home is only four blocks from Dr. Ducote’s home. The girls have taken both dancing and piano lessons; in order for them to practice, their father bought them a trampoline and a piano. Mrs. Ducote admits that her former husband gives them generous gifts, and that on one occasion he gave the fourteen year old a designer dress. Her testimony further reveals that they live in a desirable neighborhood, that they are properly clothed, housed, and fed. This evidence indicates that the girls are provided a standard of living harmonious with their father’s station.

For the reasons already noted, the higher cost of living is not of itself determinative of an escalation in the award.

We agree with the Court of Appeal in rejecting the doctor’s contention that his former wife should accept employment and contribute monetarily to the support of the children. Although Mrs. Ducote is a licensed practical nurse and her children attend school, we believe under the circumstances that she is justified in remaining at home. If she did accept employment, she would have to hire a housekeeper to perform the household duties and to care for the girls when they return home from school. Moreover, daughters of this age need the attention of a mother. The duties of preparing meals, washing clothes, providing transportation, furnishing care and guidance, and performing all the day-to-day services that are demanded of a mother contribute substantially to the mutual obligation of support. See Gravel v. Gravel, La.App., 331 So.2d 580 (1976); Fall v. Fontenot, La.App., 307 So.2d 779 (1975).

Mrs. Dueote’s final contention that the children’s needs greatly exceed the lower court’s award is not supported by any concrete evidence in the record. In fixing the amount of support, the trial judge is vested with considerable discretion. The record does not convince us that the trial judge abused his discretion in setting the child support payment at $600.00 per month. See Cloud v. Cloud, La.App., 276 So.2d 389 (1973); Fellows v. Fellows, La.App., 267 So.2d 572 (1972); Pettitt v. Pettitt, La.App., 261 So.2d 687 (1972).

For the reasons assigned, the judgment of the Court of Appeal is amended to provide alimony to the wife in the amount of $500.00 per month and a total award for alimony and child support of $1,100.00 per month. As thus amended, the judgment of the Court of Appeal is affirmed.

DENNIS, J., concurring in part and dissenting in part is of the opinion the former wife is entitled to the full relief sought.


source: Caselaw Access Project

author: SANDERS, Chief Justice. SUMMERS, Justice

license: Public Domain

text:
    Paul M. WARD v. Shirley Ann WARD.
    No. 58279.
    Supreme Court of Louisiana.
    Nov. 8, 1976.
    Dissenting Opinion Dec. 7, 1976.
    Rehearing Denied Dec. 10, 1976.

      Philip R. Riegel, Jr., Sydney J. Parlongue, New Orleans, for defendant-applicant.
    R. Lee McDaniel, Dan C. Garner & Associates, New Orleans, for plaintiff-respondent.
   SANDERS, Chief Justice.

Defendant, Shirley Ann Ward, obtained judicial separation from her husband, Paul M. Ward, on the ground of cruel treatment. The judgment of separation granted custody of the minor child to the mother and condemned the father to pay $200.00 per month alimony and $400.00 per month child support.

Later, on the ground of no reconciliation between the parties for more than one year following the judgment of separation, the wife obtained a divorce. In accordance with an agreement between the parties, the divorce judgment awarded $375.00 per month alimony and a like amount for child support, beginning August 1, 1973, and continuing for eighteen months, after which time the alimony and child support “shall be discontinued in accordance with the agreement between the parties herein.”

Following the lapse of eighteen months, Mr. Ward filed a rule to show cause why the amount of alimony should not be reduced. The trial court dismissed the rule, holding that there was no alimony award to reduce since the judgment had expired by its own terms.

On April 30, 1975, Mrs. Ward filed a rule for alimony and child support, alleging that she was in necessitous circumstances. After trial of the rule, child support was awarded in the amount of $200.00 per month and alimony in the amount of $400.00 per month. Mr. Ward appealed the judgment.

The Court of Appeal affirmed the child support judgment but set aside the alimony judgment and remanded the case to the trial court to give Mrs. Ward an opportunity to show either that work is unavailable to her or that, if available, there is a compelling reason which prevents her from accepting employment. La.App., 332 So.2d 868 (1976). We granted writs to review the Court of Appeal’s judgment. La., 334 So.2d 430 (1976).

On appeal, Mr. Ward contended: (1) that the agreement entered into by the parties for alimony is valid and, as a result thereof, the appellee is not entitled to alimony; alternatively, even if the agreement is found to be invalid, (2) the trial court erred in concluding the appellee was entitled to alimony; and in the further alternative, (3) the alimony award was excessive.

The parties entered into the alimony waiver agreement before the divorce and while they were still husband and wife. Under Article 1790 of the Louisiana Civil Code, a husband and wife are incapable of contracting with each other subject to limited exceptions. See LSA-C.C. Arts. 1790, 2446. The exceptions do not include a contract for the settlement of alimony rights. Hence, we hold that the agreement waiving the wife’s right to alimony and child support is a nullity and can be given no effect. See Russo v. Russo, 205 La. 852, 18 So.2d 318 (1944); Sonnikson v. Whipple, La.App., 283 So.2d 504 (1973).

The court judgment, based on the agreement, cannot itself bar future rights to alimony and child support. Judgments awarding alimony and support are always subject to modification and reinstatement. Smith v. Smith, 217 La. 646, 47 So.2d 32 (1950); Russo v. Russo, 208 La. 17, 22 So.2d 671 (1945).

The more difficult question raised by the Court of Appeal judgment and the one which prompted us to grant review is whether the earning capacity of an unemployed, divorced wife bars her from alimony absent a compelling reason which prevents her from accepting employment.

Article 148 of the Louisiana Civil Code provides:

“If the wife has not a sufficient income for her maintenance pending the suit for separation from bed and board or for divorce, the judge shall allow her, whether she appears as plaintiff or defendant, a sum for her support, proportioned to her needs and to the means of her husband.”

Article 160 of the Louisiana Civil Code provides:

“When the wife has not been at fault, and she has not sufficient means for her support, the court may allow her, out of the property and earnings of the husband, alimony which shall not exceed one-third of his income when:
“1. The wife obtains a divorce;
“2. The husband obtains a divorce on the ground that he and his wife had been living separate and apart, or on the ground that there has been no reconciliation between the spouses after a judgment of separation from bed and board, for a specified period of time; or
“3. The husband obtained a valid divorce from his wife in a court of another state or country which has no jurisdiction over her person.
“This alimony shall be revoked if it becomes unnecessary, and terminates if the wife remarries.”

Generally, alimony pendente lite under Article 148 is a judicial enforcement of the husband’s obligation under Louisiana Civil Code Article 120 to support the wife during the marriage, which does not terminate until death or divorce. Murphy v. Murphy, 229 La. 849, 87 So.2d 4 (1956); Eals v. Swann, 221 La. 329, 59 So.2d 409 (1952). If the husband’s “means” are sufficient to maintain the wife in a style comparable to that which she enjoyed prior to the separation, even if she is capable of earning an income and has done so in the past, the wife is entitled to alimony pendente lite and is not required to obtain employment to support herself; if however, she chooses to earn her own living, or a part of it, the alimony is reduced to the extent of her earnings. Bilello v. Bilello, 240 La. 158, 121 So.2d 728 (1960); Hillard v. Hillard, 225 La. 507, 73 So.2d 442 (1954).

Alimony after divorce is quite different from alimony pendente lite. Under Louisiana Civil Code Article 160, alimony after divorce is in the nature of a pension, obtainable by the former wife only when she has not been at fault and when she has not sufficient means for her support. Frederic v. Frederic, La., 302 So.2d 903 (1974); Bernhardt v. Bernhardt, La., 283 So.2d 226 (1973); Hays v. Hays, 240 La. 708, 124 So.2d 917 (1960); Brown v. Harris, 225 La. 320, 72 So.2d 746 (1954). This alimony after divorce is not awarded in an amount sufficient to support the former wife in the manner in which she is accustomed to live; rather, it is awarded in an amount sufficient to provide for her maintenance, which includes food, clothing, shelter, and other basic necessities; and the wife has the burden of establishing her necessitous circumstances. Bernhardt v. Bernhardt, supra; Vicknair v. Johnson (Vicknair), 237 La. 1032, 112 So.2d 702 (1959); Stabler v. Stabler, 226 La. 70, 75 So.2d 12 (1954).

The Court of Appeal held that the phrase “sufficient means for her support” in Article 160 is sufficiently broad to include the earning capacity of the wife, though she was presently unemployed. We disagree.

As used in Article 160, means refers to available resources, such as property or money, from which the wants of life may be supplied. The term is, of course, broad enough to include income, for from it the wife’s needs may be met. Smith v. Smith, 217 La. 646, 47 So.2d 32 (1950). As to income, there is no difference between the interpretation of “means” here and in Article 148, referring to the means of the husband. See Bowsky v. Silverman, 184 La. 977, 168 So. 121 (1936); C. E. Lazarus, What Price Alimony, 11 La.L.Rev. 401, 418.

Insofar as current earnings of the wife are concerned, they are treated no differently than other income. When she receives earnings, they become means for her support. Such earnings must be taken into account in awarding alimony.

If the wife is unemployed, however, and receives no earnings, her earning capacity or potential income is not a proper basis for rejecting alimony. Earning capacity alone does not fall within the definition of “means” in Article 160.

The husband argues, however, that a husband cannot escape liability for alimony pendente lite under Article 148 by refusing to work when he is able to do so, and that the same principle should apply to the wife under Article 160.

It is true that the husband cannot escape liability for alimony under Article 148 by refusing to work. This result flows from the concept that the husband is under a legal duty to support his wife during the marriage. LSA-C.C. Art. 120; Zaccaria v. Beoubay, 213 La. 782, 35 So.2d 659 (1948). After divorce, the wife has no analogous legal duty to earn her own livelihood, thus relieving the husband of his liability for alimony. As we have noted, an alimony award is limited to basic necessities. See Bernhardt v. Bernhardt, supra. This limitation alone provides the necessary incentive for a divorced wife who has occupational skills or training to use them to raise her standard of living.

We hold, therefore, that the earning capacity of an unemployed wife does not bar her from alimony under Article 160 of the Louisiana Civil Code.

We have examined the record and find that the trial court award of $200.00 per month for child support and $400.00 per month for alimony to the wife is well within the range of discretion vested in the trial judge.

For the reasons assigned, the judgment of the Court of Appeal is affirmed insofar as it awards $200.00 per month for child support. The judgment is reversed insofar as it rejected the award of alimony to Shirley Ann Ward. The judgment of the district court awarding Shirley Ann Ward $400.00 per month alimony is reinstated and made the judgment of this Court.

SUMMERS, J., dissents and assigns reasons.

CALOGERO and DENNIS, JJ., dissent for the reasons assigned by the Court of Appeal.

SUMMERS, Justice

(dissenting).

As I understand the facts, Shirley Ann Ward, the divorced wife seeking alimony, had, in 1973, 13V2 years experience as a school teacher. She is relatively young and last worked in 1971 as a teacher in the public schools of Orleans Parish, earning a salary of $10,400 annually. She has a Bachelor of Arts degree, a Master of Education degree and a councilor’s certificate from Southern Methodist University. In addition, she has a Bachelor of Arts degree from Austin College, has undertaken graduate work at San Diego, California, and is presently working on her Ph.D. at North Texas College.

Other than the fact that she attends college full time, the record disclosed no reason why Shirley Ann Ward should not be able to work as a school teacher. She is fully qualified for such employment, and it is more than adequately remunerative to provide for her support and maintenance. Moreover, there is no showing here that suitable work in her profession of teaching is unavailable. The burden is on her to make this showing. In the absence of a showing by her to this effect, I am of the opinion that her education and experience provide “sufficient means for her support,” La.Civ.Code art. 160, and a fair and reasonable expectation of the law is that she should avail herself of that means.

A husband endowed with the ability, training and experience to earn sufficient income to discharge his obligation to provide support to a wife entitled to alimony cannot for reasons of indolence, spite or revenge refuse to work to meet his alimony obligation. La.Civ.Code art. 148. For the same reasons, a divorced wife with the ability, training and experience to earn sufficient income for her support and maintenance cannot for like reasons of indolence, spite or revenge refuse to supply her own needs. Bowsky v. Silverman, 184 La. 977, 168 So. 121 (1936).

I understand the word “means” as used in Article 160 to signify any resource from which the wants of life may be supplied. On the strength of this record, I believe Shirley Ann Ward has sufficient means for her support. Accordingly, I respectfully dissent.


text:
    Clifford F. FAVROT, Jr. v. Katherine Boulet BARNES.
    No. 58195.
    Supreme Court of Louisiana.
    Nov. 8, 1976.
    Dissenting Opinion Dec. 7, 1976.
    Rehearing Denied Dec. 10, 1976.

      D. Douglas Howard, Jr., New Orleans, for defendant-applicant.
    Maurice R. Franks, New Orleans, for plaintiff-respondent.
   SANDERS, Chief Justice.

In this suit for divorce the district court found the wife to be free from fault and awarded her alimony after divorce in the amount of $800.00 per month, pursuant to Article 160 of the Louisiana Civil Code. The husband appealed, and following its decision in Ward v. Ward, 332 So.2d 868 (4th Cir., 1976), handed down the same date, the Court of Appeal set aside the district court judgment and remanded the case in order that the parties might introduce evidence regarding the wife’s ability to support herself. Favrot v. Barnes, 332 So.2d 873 (4th Cir., 1976).

Both parties sought writs to this Court. Mr. Favrot’s application was denied. La., 334 So.2d 436 (1976). Mrs. Barnes’ application, which alleged that “[t]he Court of Appeal erred in its interpretation of R.C.C. Article 160 by remanding the case for proof of MRS. FAVROT’s inability to work[.]” and “[t]he Court of Appeal erred in failing to affirm the amount of alimony awarded to MRS. FAVROT by the trial court absent a finding of abuse of discretion of the trial judge[.]” was granted. La., 334 So.2d 429 (1976).

The only issue presented for our review is whether the earning capacity of an unemployed, divorced wife bars her from alimony absent a compelling reason which prevents her from accepting employment.

For the reasons assigned in Ward v. Ward, No. 58,279, La., 339 So.2d 839 (1976), handed down this date, we hold that the earning capacity of an unemployed, divorced wife does not bar her from alimony under Article 160 of the Louisiana Civil Code.

Having reviewed the record in the present case, we find that the district court’s award of $800.00 per month was not an abuse of discretion.

For the reasons assigned, the judgment of the Court of Appeal is reversed insofar as it pertains to alimony, and the judgment of the district court awarding Mrs. Barnes alimony in the amount of $800.00 per month is reinstated and made the judgment of this Court.

SUMMERS, J., dissents and assigns reasons.

CALOGERO and DENNIS, JJ., dissent for the reasons assigned by the Court of Appeal.

SUMMERS, Justice

(dissenting).

For the reasons assigned in my dissent in Ward v. Ward, La., 339 So.2d 839, I respectfully dissent.


author: PER CURIAM.

text:
    STATE of Louisiana v. Stevenson GREEN.
    No. 58265.
    Supreme Court of Louisiana.
    Nov. 18, 1976.
    Rehearing Denied Dec. 13, 1976.
    Edward A. Kaplan, Alexandria, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Edwin 0. Ware, Dist. Atty., L. Paul Gianfala, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Harold Glenn ROBINSON.
    No. 58332.
    Supreme Court of Louisiana.
    Nov. 18, 1976.
    Lewis Weinstein, Richard C. Goorley, Shreveport, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John A. Richardson, Dist. Atty., B. Woodrow Nesbitt, Jr., Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Clarence ALFRED.
    No. 58354.
    Supreme Court of Louisiana.
    Nov. 18, 1976.
    Thomas J. Ford, Jr., Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Geraldine S. Veazey, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


author: DIXON, J.,

text:
    The DOW CHEMICAL COMPANY v. Joseph N. TRAIGLE, etc.
    No. 58636.
    Supreme Court of Louisiana.
    Nov. 24, 1976.
   DIXON, J.,

is of the opinion the writ should be granted. This court is confused as to the application of the use tax and is now discriminating against Louisiana businesses, permitting a tax advantage to those importing prefabricated items to be used in Louisiana. This writ denial shows the need for clarifying legislation.

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


text:
    STATE of Louisiana v. Hosey W. RISER et al.
    No. 58743.
    Supreme Court of Louisiana.
    Nov. 30, 1976.
   In re: State of Louisiana applying for Supervisory Writ.

Writ Denied. We cannot say that the trial court erred in finding an illegal arrest and that the products of it is inadmissible as illegally seized. See Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975).

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

SANDERS, C. J., is of the opinion that a writ should be granted.


text:
    Dudley FOREMAN v. VERMILION PARISH POLICE JURY et al.
    No. 58757.
    Supreme Court of Louisiana.
    Dec. 1, 1976.
   In re: Dudley Foreman, applying for Certiorari, or writ of review, to the Court of Appeal, 336 So.2d 986, Third Circuit, Parish of Vermilion.

Writ refused. There is no error of law in the judgment of the Court of Appeal.

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


text:
    STATE of Louisiana v. William YANDA et al.
    No. 58927.
    Supreme Court of Louisiana.
    Dec. 2, 1976.
   In re: William Yanda and Milton Blount, applying for writs of certiorari, prohibition, mandamus and for Stay Order.

Writ refused. As to qualifications of expert, there is an adequate remedy by appeal in the event of conviction. As to Assignment of Error No. 2, the showing made is insufficient to warrant the exercise of our supervisory jurisdiction.

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


text:
    STATE of Louisiana v. Julius V. BROWN and Sheldon W. Polk.
    No. 58795.
    Supreme Court of Louisiana.
    Dec. 3, 1976.
   In re: Julius V. Brown and Sheldon W. Polk, applying for writs of certiorari, prohibition, mandamus and habeas corpus.

Denied. According to the evidence attached to this application there is no error of law in the judgment.

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


text:
    Guy E. BABIN, Individually and as Administrator of the Estate of the minor, Guy E. Babin, Jr. v. ZURICH INSURANCE CO., et al.
    No. 58759.
    Supreme Court of Louisiana.
    Dec. 8, 1976.
   In re: Richard X. Patin and The Zurich Insurance Company, applying for Certiora-ri, or writ of review, to the Court of Appeal, 336 So.2d 900, Fourth Circuit, Parish of Orleans.

Application denied; no error of law in the court of appeal’s judgment.

SANDERS, C. J., is of the opinion that a writ should be granted.

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

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


text:
    In the Matter of Gary W. GIEGER.
    No. 58812.
    Supreme Court of Louisiana.
    Dec. 8, 1976.
   In re: Gary W. Geiger applying for cer-tiorari, or writ of review, to the Court of Appeal, Second Circuit, Parish of Caddo.

Writ Denied. The result is correct.

DIXON, J., recused.


text:
    STATE of Louisiana v. David C. FEARN.
    No. 58730.
    Supreme Court of Louisiana.
    Dec. 1, 1976.
   In re: State of Louisiana, applying for supervisory writs.

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 Frank Foil, Judge of the 19th Judicial District Court for the Parish of East Baton Rouge, to transmit to the Supreme Court of Louisiana, on or before the 15th day of December, 1976, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on the 4th day of March, 1977, at 10 o’clock A.M., why the relief prayed for in the petition of the relator should not be granted.


text:
    Robert ODOM v. Christa ODOM.
    No. 58895.
    Supreme Court of Louisiana.
    Dec. 1, 1976.
   In re: Robert Odom, applying for writs of certiorari and prohibition.

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 Melvin J. Duran, Judge of the Civil District Court for the Parish of Orleans, to transmit to the Supreme Court of Louisiana, on or before the 17th day of December, 1976, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on the 28th day of February, 1977, at 10 o’clock A.M., why the relief prayed for in the petition of the relator should not be granted.


text:
    Earl MATIRNE and Glenn Washington v. Helen WILSON and Volkswagen Insurance Company.
    No. 58746.
    Supreme Court of Louisiana.
    Dec. 1, 1976.
   In re: Earl Matirne and Glenn Washington, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans. 336 So.2d 960.

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


text:
    McCULLOCH OIL CORPORATION v. Areson J. VILLEJOIN and Reginald Hayes et al.
    No. 58748.
    Supreme Court of Louisiana.
    Dec. 1, 1976.
   In re: Reginald Hayes, Sidney Hayes, Julius Hayes and Warren C. Hayes applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Lafayette. 336 So.2d 993.

Denied. No error of law.


text:
    STATE of Louisiana v. Otis Anthony WELSH.
    No. 58749.
    Supreme Court of Louisiana.
    Dec. 1, 1976.
   In re: Otis Anthony Welsh applying for Writs of Review.

Writ refused. Adequate remedy by appeal in the event of conviction.


text:
    STATE of Louisiana v. Marvin RUFFIN.
    No. 58750.
    Supreme Court of Louisiana.
    Dec. 1, 1976.
   In re: Marvin Ruffin applying for Writ of Review.

Writ refused. Adequate remedy by appeal in the event of conviction.


text:
    Thelma HARDY v. MERCY HOSPITAL OF NEW ORLEANS and National Ben Franklin Insurance Company.
    No. 58752.
    Supreme Court of Louisiana.
    Dec. 1, 1976.
   In re: Thelma Hardy applying for certio-rari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans. 336 So.2d 959.

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


text:
    STATE of Louisiana ex rel. Eddie Charles GRIFFIN v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 58754.
    Supreme Court of Louisiana.
    Dec. 1, 1976.
   In re: Eddie Charles Griffin applying for Writ of Habeas Corpus.

Application denied. The record before us does not warrant the relief sought.


text:
    O. B. MOBLEY, Jr. v. Nomie M. NAMIE, Jr.
    No. 58766.
    Supreme Court of Louisiana.
    Dec. 1, 1976.
   In re: O. B. Mobley, Jr. applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit, Parish of Caddo. 337 So.2d 306.

Writ refused. No error of law.


text:
    Harold LOEWER et al. v. Clyde P. VANDERHIDER.
    No. 58777.
    Supreme Court of Louisiana.
    Dec. 1, 1976.
   In re: Harold Loewer and Louisiana Implement Co., Inc. applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Evangeline. 336 So.2d 1011.

Denied. No error of law.


text:
    CITY OF LAFAYETTE v. David E. BLACK, Sr. and David E. Black, Jr.
    No. 58783.
    Supreme Court of Louisiana.
    Dec. 1, 1976.
   In re: David E. Black, Sr., and David E. Black, Jr., applying for certiorari or writ of review, to the Court of Appeal, Third Circuit, Parish of Lafayette. 336 So.2d 982.

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


text:
    STATE of Louisiana ex rel. Quenton N. BROWN v. STATE of Louisiana, 16TH JUDICIAL DISTRICT COURT, PARISH OF ST. MARY.
    No. 58823.
    Supreme Court of Louisiana.
    Dec. 1, 1976.
   In re: Quenton N. Brown applying for Writ of Mandamus. 337 So.2d 516.

Writ denied. The mandamus application is moot, since the trial court acted on the writ application on November 16, 1976.


text:
    STATE of Louisiana ex rel. Luden Charles McGEE v. STATE of Louisiana.
    No. 58886.
    Supreme Court of Louisiana.
    Dec. 1, 1976.
   In re: Lueien Charles McGee, applying for writ of mandamus.

Application for mandamus denied; hearing has been fixed by trial judge for December 15, 1976, and Wilson Ramshur has been appointed to represent applicant. (Order signed Nov. 9).


text:
    STATE of Louisiana v. Brian GARDNER.
    No. 58904.
    Supreme Court of Louisiana.
    Dec. 1, 1976.
   In re: Brian Gardner applying for Writs of Certiorari, Prohibition, Mandamus and Stay Order.

Denied. Adequate remedy by appeal.


text:
    Bob PATTERSON and Beth Burns Miller Patterson v. Anthony B. LEGGIO, M. D. and St. Paul Fire and Marine Insurance Company.
    No. 58919.
    Supreme Court of Louisiana.
    Dec. 1, 1976.
   In re: Bob Patterson, et al., applying for writs of review.

Writ refused. No abuse of discretion shown.


text:
    Cecil PETTIS v. PINECREST STATE SCHOOL et al.
    No. 58811.
    Supreme Court of Louisiana.
    Dec. 3, 1976.
   In re: Dr. Kent applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Rapides. 336 So.2d 521.

Writ granted in part, denied in part. Granted as to assignment of error four with same disposition and instructions as in 58,-802, companion case; denied as to the other assignments of error.


text:
    STATE of Louisiana v. Gary HALL.
    No. 58574.
    Supreme Court of Louisiana.
    Dec. 3, 1976.
   In re: Gary Hall, applying for writs of review, certiorari, mandamus and prohibition.

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


text:
    LAWYERS TITLE INSURANCE CORP. v. LOUISIANA INSURANCE RATING COMMISSION.
    No. 58643.
    Supreme Court of Louisiana.
    Dec. 3, 1976.
   In re: Louisiana Land Title Rating Bureau applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish East Baton Rouge. 336 So.2d 239.

Writ denied. No error of law.


text:
    STATE of Louisiana v. Michael T. HARRIS.
    No. 58724.
    Supreme Court of Louisiana.
    Dec. 3, 1976.
   In re: State of Louisiana applying for Writ of Certiorari.

Writ denied. No abuse of discretion in the trial court’s ruling.


text:
    A. E. LANDVOIGHT, INC. v. LOUISIANA STATE EMPLOYEES RETIREMENT SYSTEM.
    No. 58788.
    Supreme Court of Louisiana.
    Dec. 3, 1976.
   In re: Louisiana State Employees’ Retirement System, applying for Certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of E. Baton Rouge. 337 So.2d 881.

Writ denied. On the facts found, the result is' correct.


text:
    A. E. LANDVOIGHT, INC. v. LOUISIANA STATE EMPLOYEES’ RETIREMENT SYSTEM.
    No. 58789.
    Supreme Court of Louisiana.
    Dec. 3, 1976.
   In re: A. E. Landvoight, Inc. applying for Certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of East Baton Rouge. 337 So.2d 881.

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


text:
    Mrs. Katie Nell WICKER, etc. v. SOUTHERN FARM BUREAU CASUALTY INSURANCE COMPANY et al.
    No. 58790.
    Supreme Court of Louisiana.
    Dec. 3, 1976.
   In re: Katie Nell Wicker, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of St. Helena. 337 So.2d 1233.

Not considered. No rehearing applied for in the Court of Appeal.


text:
    Daniel DIEUDONNE v. Gerald GUIDRY and Southern Pacific Transport Company of Texas and Louisiana.
    No. 58793.
    Supreme Court of Louisiana.
    Dec. 3, 1976.
   In re: Daniel Dieudonne applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Iberia. 336 So.2d 990.

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


text:
    Willie C. HARRIS v. SEABOARD FIRE AND MARINE INSURANCE COMPANY and Kast Metals Corporation, Mid-Continent Steel Casting Division.
    No. 58794.
    Supreme Court of Louisiana.
    Dec. 3, 1976.
   In re: Seaboard Fire and Marine Insurance Company and Kast Metals Corporation, Mid-Continent Steel Casting Division applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit, Parish of Caddo. 337 So.2d 262.

Writ denied. No error of law.


text:
    STATE of Louisiana ex rel. Tookie DAVALIE and Mozine Johnson v. Mr. Ross MAGGIO, Warden Louisiana State Penitentiary.
    No. 58799.
    Supreme Court of Louisiana.
    Dec. 3, 1976.
   In re: Tookie Davalie and Mozine Johnson applying for writ of certiorari.

Writ denied. No error in the ruling of the trial judge.


text:
    STATE of Louisiana ex rel. Horace PIERSON v. Ross MAGGIO, Jr., Warden Louisiana State Penitentiary.
    No. 58800.
    Supreme Court of Louisiana.
    Dec. 3, 1976.
   In,re: Horace Pierson, applying for writ of habeas corpus.

Writ refused. There is no merit in application.


text:
    Ronald EDWARDS v. PORT AMC/JEEP, INC.
    No. 58804.
    Supreme Court of Louisiana.
    Dec. 3, 1976.
   Port AMC/Jeep, Inc., applying for certio-rari, or writ of review, to the Court of Appeal, Second Circuit, Parish of Caddo. 337 So.2d 276.

Writ denied. On the facts found the judgment is correct.


text:
    Leo H. HUHN et al. v. MARSHALL EXPLORATION, INC.
    No. 58805.
    Supreme Court of Louisiana.
    Dec. 3, 1976.
   In re: Leo H. Huhn, applying for Certiorari, or writ of review, to the Court of Appeal, Second Circuit, Parish of DeSoto. 337 So.2d 561.

Writ denied. On the facts found by the Courts below, the result is correct.


text:
    Gale A. CARTER, d/b/a Gale Carter Realty v. E. L. HAYES.
    No. 58809.
    Supreme Court of Louisiana.
    Dec. 3, 1976.
   In re: E. L. Hayes applying for certiora-ri, or writ of review, to the Court of Appeal, Second Circuit, Parish of Morehouse. 337 So.2d 295.

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


text:
    Cecil PETTIS v. STATE of Louisiana, Through State DEPARTMENT OF HOSPITALS, et al.
    No. 58802.
    Supreme Court of Louisiana.
    Dec. 3, 1976.
   In re: William L. Kirkpatrick and TriState Insurance Co. applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Rapides. 336 So.2d 521.

Writ granted in part, denied in part. Writ granted as to assignment of error four, and the judgment on the third-party demand is set aside; the case is remanded to the Court of Appeal with instructions to reconsider the demand in the light of Civil Code Article 2103. The writ is denied as to the other assignments of error.


author: LOTTINGER, Judge.

text:
    Margaret Pace, wife of/and William PACE v. WINN-DIXIE LOUISIANA, INC.
    No. 10869.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 20, 1976.
    Rehearing Denied Nov. 15, 1976.
    Writ Refused Jan. 19, 1977.
    Smith & Walters, Lloyd R. Walters, Sli-dell, for plaintiffs appellants.
    James F. Holmes, Lawrence J. Ernst, New Orleans, for defendant appellee.
    Before SARTAIN, BLANCHE and LOT-TINGER, JJ.
   LOTTINGER, Judge.

This is a suit for damages resulting from the alleged wrongful detention and questioning of plaintiff, Margaret Pace, for shoplifting by employees of the defendant, Winn-Dixie of Louisiana, Inc. From a judgment in favor of the defendant, plaintiffs have appealed.

On December 28, 1971, between 5:00 and 6:00 in the afternoon, Mrs. Margaret Pace, accompanied by her 18 month old grandchild, entered the Winn-Dixie Store in Sli-dell, Louisiana, to shop. As she entered the store, she obtained a shopping cart, placed her grandchild in the shopping cart and proceeded with her shopping. Upon passing the drug counter, she realized she needed a pack of Stanback and aspirin, and upon retrieving them from the counter rather than placing them in the shopping cart, she held them in her hand so as not to allow the grandchild the opportunity of picking them up. Upon proceeding further down the aisle, she realized the inconvenience of attempting to hold these two items in her hand, and dropped them in a tote bag or purse for safekeeping. After completing her shopping, she proceeded to the check out counter whereupon she paid for her merchandise with a personalized check which showed her mailing address as well as her telephone number. Mrs. Pace had check cashing privileges at the store, and carried a card issued by the store identifying her as having check cashing privileges. However, upon arriving at her house, and unpacking her groceries, she realized that she had not paid for the Stanback and aspirin, since they had been separated from the other items, and immediately telephoned the Winn-Dixie Store informing them of her error, and determining if they would remain open so that she could return to pay for the merchandise.

While Mrs. Pace was in the store shopping she was observed by two store employees, Allen Creamer, Assistant Manager, and James Babin, Meat Market Manager, placing two items in her purse or tote bag. They continued to watch and observed that she did not pay for these items. Babin testified that it was possible he helped Mrs. Pace to her automobile with her groceries. Her license number was taken down as she drove off, even though Creamer knew who she was, and that she had check cashing privileges at the store. Both employees testified that the reason she was not approached prior to her driving off was because they did not want to embarrass her in front of the small child.

Mrs. Pace’s telephone conversation with the check out girl, Bonnie Hingle, was conveyed to either Creamer or Babin prior to Mrs. Pace’s return. Mrs. Pace testified that. upon her return to the store, she went immediately to the check out counter, informed the girl in attendance that she was the person who had called about the two items. She had paid for the items when the check out attendant was instructed to cancel the sale and return the money. Mr. Creamer testified that when Mrs. Pace entered the store, she started toward the check out counter, but upon seeing him went toward him. Regardless, Mrs. Pace was requested to accompany Mr. Creamer and Mr. Babin to the store office. The office in question is a raised area near the check out counters enclosed by a half-wall, which allowed a view of the store by the occupants of the office, and the occupants to be seen from the store area.

It is Mrs. Pace’s contention that while in this office area she was accused of shoplifting and theft and lectured on shoplifting as well as being told that she would be on record as a shoplifter, subject to search whenever she was in the store, and that this information would be given to other merchants in St. Tammany Parish. She further alleges that she was informed it was necessary for her to sign a form furnished by the store prior to her being released, and if she refused to sign, the police would be called.

Even though she was allowed to insert the emphasized language, the form reads as' follows:

She was in the office about 15 minutes, and upon signing the form was allowed to pay for the merchandise and leave.

Though the testimony as to what happened when Mrs. Pace first entered the store on her return is in conflict, in oral argument counsel for defendant admits that someone could have said “cancel the sale.” Creamer denies using the word shoplifting or stealing in discussing the situation with Mrs. Pace, though he did admit explaining to her the problems the store was having with shoplifting and could have conveyed to Mrs. Pace the idea that she was guilty of shoplifting. He further admitted that the form would be filled out and the customer requested to sign it even though a mistake had been made by the customer.

Mr. Babin denied that anyone accused Mrs. Pace of being a shoplifter, that it would be reported to the police, that her purse would be searched whenever she came back to the store, or that merchants in the Slidell area would be furnished with this information. However, he did admit that she was informed that when someone conceals merchandise and leaves the premises without paying for it, that it is considered shoplifting for which they could be arrested. He candidly admitted that it is possible that she was told that the form had to be filled out before she could leave. He further admitted that the purpose of taking her to the office was to have the form filled out, and the purpose of the form was to admit that she had shoplifted. On examination by the Trial Judge, Mr. Babin admitted that the word “taken” as found in the form meant “stolen”.

The Trial Judge in brief written reasons for judgment stated:

“This Court’s examination of the testimony leads to the conclusion that the plaintiff did in fact leave the defendant’s store with a couple of items which she did not pay for. She called the store by phone from home and advised she was returning to pay for the two items.
“She returned to the store, and there was a brief period where she was in the managers booth in front of the store where she signed the form and paid for the items. “The testimony fails to convince this Court that there was any wrongful detention or other wrongful conduct on the part of the store employee which are sufficient to grant relief to the plaintiff. “Accordingly, the plaintiff’s suit will be dismissed at her cost.”

As we view this matter, the issue before this Court is whether the defendant had “reasonable cause to believe that [Mrs. Pace had] committed theft of goods held for sale” as provided by LSA-C.Cr.P. art. 215 which provides:

“A peace officer, merchant, or a specifically authorized employee of a merchant, may use reasonable force to detain a person for questioning on the merchant’s premises, for a length of time not to exceed sixty minutes, when he has reasonable cause to believe that the person has committed theft of goods held for sale by the merchant, regardless of the actual value of the goods. The detention shall not constitute an arrest.
“A peace officer may, without a warrant, arrest a person when he has reasonable ground to believe the person has committed theft of goods held for sale by a merchant, regardless of the actual value of the goods. A complaint made to a peace officer by a merchant or a merchant’s employee shall constitute reasonable cause for the officer making the arrest.”

Under the facts as above found, and in particular, that Mrs. Pace was known to be a regular customer of the Winn-Dixie Store, that she was known to have check cashing privileges at the store, and that she telephoned the Winn-Dixie Store to inform them of the mistake she had made, we do not believe that the store employees from the point when Mrs. Pace phoned had reasonable cause to believe that she had committed theft. We do not hold that prior to the point that Mrs. Pace telephoned the store to inform them of her mistake that reasonable cause might not have existed, but taking all of the attending circumstances into consideration, we are firmly of the opinion that reasonable cause was lacking.

Further, we are of the opinion that a detention of Mrs. Pace took place. Even though she voluntarily returned to the store to pay for merchandise she had mistakenly removed, she was requested upon her arrival to accompany the two employees to the office area, and informed that she could not leave until the security form was filled out. At this point, she could have either left the store, thus giving the impression that she had done something wrong, or she could comply with the request to accompany the employees to the office area and furnish the information necessary for the form. Therefore, she was left with no true freedom of choice, for to maintain her honesty and truthfulness, she was required to remain at the store. Thus, a restraint was effectively imposed. Clark v. I. H. Rubenstein, Inc., 326 So.2d 497 (La.1976), rehearing denied (1976).

LSA-C.Cr.P. art. 215 only allows for the detention of a person suspected of shoplifting for questioning, it does not grant any authority or immunity from liability for forcing or coercing an individual to sign any statement or statements which lead to the conclusion that they were guilty of shoplifting. Though the above quoted form is not entitled a confession, nor does the word confession or theft appear therein, it is quite obvious from the facts that the intended purpose of the form was to have the suspected customer admit to shoplifting. This the defendant cannot do.

We, therefore, find that the Trial Judge was in error in holding that there was no wrongful detention or other wrongful conduct on the part of the store employees, and therefore, reverse and find in favor of the plaintiffs.

On December 29, 1971, Mrs. Pace consulted Dr. Don Carlos Rudeen, a specialist in family practice. At this time she was markedly aggravated, depressed, and crying over the incident on the previous evening. Dr. Rudeen instructed her to begin retaking her tranquilizers which had been prescribed the year before in connection with adrenalin cortex insufficiency. The following day she was inconsolable and was hospitalized for acute anxiety with depression reaction, which in common terms is a nervous breakdown. She was released from the hospital on January 4, 1972. While in the hospital, treatment was administered with tranquilizers and anti-depressants. Dr. Rudeen saw her again on February 8, 1972, when she broke down and cried in his office, stating that she had attempted to go shopping but just could not bear to go into a store. Psychiatric treatment was suggested at this time, and in the latter part of March, 1972, she finally agreed to see a psychiatrist. Dr. Rudeen stated that he saw her several times concerning her condition as a result of the incident.

Dr. Charles R. Smith, a psychiatrist, testified that he first saw Mrs. Pace on April 12, 1972, and diagnosed that she had a chronic personality disorder, she was fearful of shopping; and that the main emotional reactions she was exhibiting pertaining to the particular incident were those of fear. Dr. Smith considered all of her visits during the calendar year 1972, which were 11 visits, to be primarily associated with the incident at the Winn-Dixie Store. At the time that he first examined her, he found her to be depressed and anxious.

From the record it is obvious that this lady had some medical problems as well as family problems prior to the incident at the Winn-Dixie Store which caused her to be depressed, and which required medical attention. However, it is obvious that after a review of the testimony by both of the medical experts, the incident which took place at the Winn-Dixie Store on the evening of December 28, 1971, had a dramatic effect on Mrs. Pace. We feel that the incident did cause Mrs. Pace some emotional problems, not because she was embarrassed or humiliated in the presence of other individuals, because the store was almost empty when she returned, but because as expressed by Dr. Smith, she developed and lived with a fear as a result of this incident which affected her in a way that made it difficult for her to go shopping because she was afraid of repercussions of some kind as a result of the incident. Dr. Smith did testify that by the beginning of 1973, Mrs. Pace had reached the point in her treatment whereby this incident began to play a less significant role in her life. Therefore, we are of the opinion that this lady has suffered mentally and physically as a result of the wrong done her, and that an award of $5,000.00 is adequate to compensate her.

Though William Pace, as head and master of the community of acquets and gains, sued the defendant for medical expenses, the only medical expenses filed into evidence were those of Dr. Smith. This bill includes more than visits directly associated with the incident, and we therefore believe that an award in the amount of $385.00 for medical expenses is justified. There is no evidence in the record as to any future medical expenses nor the medical expenses associated with the treatment of Dr. Ru-deen. The expert witness fees of Drs. Smith and Rudeen are fixed at $150.00 each and taxed as cost.

Therefore, for the above and foregoing reasons, the judgment of the Trial Court is reversed and set aside, and IT IS ORDERED, ADJUDGED AND DECREED that there be judgment in favor of the plaintiff, Margaret Pace, and against the defendant, Winn-Dixie Louisiana, Inc., in the amount of $5,000.00 with legal interest thereon from date of judicial demand until paid; that there be judgment in favor of the plaintiff, William Pace, and against the defendant, Winn-Dixie Louisiana, Inc., in the amount of $385.00, with legal interest thereon from date of judicial demand until paid; that the expert witness fees of Dr. Don Carlos Rudeen and Dr. Charles R. Smith are fixed in the amount of $150.00 each and taxed as cost; and that all costs, including the cost of this appeal, be paid by the defendant-appellee.

REVERSED AND RENDERED.


author: WATSON, Judge.

text:
    Julia McFARLAND v. CROWLEY INDUSTRIES, INC., et al.
    No. 5589.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 10, 1976.
    Rehearing Denied Dec. 15, 1976.
    Writ Refused Feb. 18, 1977.

      Guillory, McGee & Mayeux, by John Fon-tenot, Eunice, for plaintiff-appellant.
    Allen, Gooch & Bourgeois, by Kenneth W. Cole, Lafayette, for defendants-appellees.
    Before MILLER, WATSON and PETERS, JJ.

      . This company was named incorrectly as a defendant, (see infra) but following our usual policy we retain the suit caption used in the trial court.

   WATSON, Judge.

This is a workmen’s compensation suit in which the trial court granted benefits for total and permanent disability but declined to award penalties and attorney’s fees. Plaintiff has appealed, contending that the termination of weekly payments on either of two occasions by the insurer entitles her to the penalties and fees of LSA-R.S. 22:658. Plaintiff is Julia McFarland. Defendants are her employer, Crowley Manufacturing Company, and its insurer, the Home Insurance Companies.

Motion to Dismiss

Defendants have moved to dismiss the appeal on the ground that a judgment had not been signed when the motion for appeal was granted.

The trial court handed down written reasons on the merits on March 12, 1976. On April 2, 1976, the plaintiff moved for and obtained an order for devolutive appeal in forma pauperis. A final judgment was not signed until April 13, 1976. When filed in this court on June 7, 1976, the signed judgment was contained in the record.

The defendants argue that plaintiff’s appeal was premature and should be dismissed. The general rule is that the absence of a signed judgment from a transcript of appeal requires that the appeal be dismissed. Forman v. May, 201 So.2d 683 (La.App. 3 Cir. 1967). However, an appeal taken after rendition but before signing of a judgment will not be dismissed if the signed judgment is included in the record filed in the appellate court. Richards v. Gettys, 329 So.2d 475 (La.App. 4 Cir. 1976). The motion to dismiss the appeal is denied.

On the Merits

The accident occurred on January 3, 1974 when Mrs. McFarland was operating a mechanical iron which jammed, coming to an abrupt halt and injuring plaintiff’s neck and right shoulder. Shortly after the accident, defendant began to pay weekly compensation benefits, which were continued until June 25, 1974, at which time the payments were stopped. Payments of weekly compensation benefits were resumed when a check was issued on August 22, 1974, for the period from June 26, 1974, through August 20, 1974.

The present suit was filed August 29, 1974, improperly naming Crowley Industries, Inc. and Aetna Casualty and Surety Company as defendants. Plaintiff did not receive the check issued on August 22, 1974, until the first week of September, 1974, and at that time realized she had named the wrong parties as defendants. Her petition was amended, prior to answer, on September 20, 1974, to properly name Crowley Manufacturing Company and The Home Insurance Companies as parties-defendant and the incorrect defendants were dismissed.

Defendants filed an exception of prematurity, alleging that benefits had been paid to plaintiff from the time of the accident, and were still being paid at the time suit was filed and at the time the petition was amended. The trial court dismissed the exception, holding that the issue of prematurity is determined at the time suit is instituted, and, at that time, there were benefits due and owing plaintiff.

Defendants again discontinued benefits on June 17, 1975, and no benefits were paid until trial on the merits in February, 1976. At trial, plaintiff was awarded benefits for total and permanent disability and medical expenses but was denied penalties and attorney’s fees.

The issues presented on appeal are:

(1) was the exception of prematurity correctly dismissed?

(2) is plaintiff entitled to penalties and attorney’s fees as a result of:

(a) the termination of weekly benefits on June 25, 1974;

(b) the termination of weekly benefits on June 17, 1975;

(c) the failure to pay medical expenses.

We will consider the exception of prematurity and the termination of June 25,1974, together.

The record is devoid of any explanation as to why the insurer stopped payments on June 25, 1974. It is clear that the accident was reported as occurring on January 3, 1974; that the employer filed the standard “Employer’s First Report of Injury” (P-6, TR. 82) with the insurer; and that the employer referred plaintiff to Dr. E. S. Fields, a physician of Crowley, who undertook treatment. Payment of weekly compensation benefits was begun timely and continued until, for some unexplained reason, the insurer stopped payments on June 25.

To the suit filed August 29, 1974 the employer and insurer asserted an exception of prematurity. Although the wrong employer and insurer were named, this deficiency was corrected by amendment. The amendment relates back to the original filing. LSA-C.C.P. art. 1153.

If the defendants rely on the rule that a payment mailed is considered delivered (Bertrand v. Patterson Truck Line, 138 So.2d 663 [La.App. 3 Cir. 1962]), then the burden is on them to demonstrate by appropriate .evidence that the payment was mailed. There is no evidence at all in the record concerning the mailing or delivery of the check issued on August 22, 1974.

Thus, when suit was filed, a period of more than 60 days had elapsed since the unexplained termination of payments. It is not necessary, therefore, to consider whether plaintiff was required to wait 60 days before suing for benefits,- penalties and attorney’s fees. We do not consider the argument that the 60-day period was not required under the circumstances. See Chavis v. Maryland Casualty Company, 307 So.2d 663 (La.App. 3 Cir. 1975), writ refused 310 So.2d 854; and Williams v. Liberty Mutual Insurance Company, 327 So.2d 462 (La.App. 3 Cir. 1976).

We hold, therefore, that the suit was not premature and that the unexplained termination of weekly benefits was arbitrary, capricious and without probable cause, entitling plaintiff to an additional judgment for penalties and attorney’s fees.

The second issue is whether the discontinuance of weekly payments on June 17, 1975 wás arbitrary, capricious and without probable cause.

Having determined that the first termination of compensation was violative of the penalty statute does not necessarily preclude the necessity for deciding the second issue because, if there was a genuine dispute as to the causal connection between the accident and the injury, then the insurer would have been entitled to discontinue benefits pending a judicial determination.

The jurisprudence recognizes that a good faith reliance on a physician’s opinion that the accident did not cause the injury is adequate grounds for refusal to pay compensation. Norred v. Travelers Insurance Company, 236 So.2d 637 (La.App. 2 Cir. 1970); Starks v. Hardware Mutual Casualty Company, 231 So.2d 657 (La.App. 2 Cir. 1970).

In * the instant appeal, the insurer had resumed payment of weekly compensation benefits and was paying at the time plaintiff’s counsel deposed Dr. William Foster, a neurosurgeon of- Lake Charles who had treated plaintiff. At the June 6,1975 deposition, this doctor first testified that plaintiff’s injury was consistent with the type of accident she had reported to him and that her history was compatible with the aggravation of a pre-existing condition. (TR. 91) On cross-examination, counsel for the insurer posed a hypothetical question to the doctor emphasizing the possible use of only her thumb and index finger and the doctor testified that, in his opinion, “jamming her thumb” could not cause the severe problem in her neck. (TR. 100) Finally, under further questioning by counsel for plaintiff, the doctor testified that assuming the use of her hand rather than just the thumb and index finger, and the jamming of the iron, such an accident would be consistent with her injury. (TR. 108).

On the basis of this deposition, the insurer again terminated compensation on June 17, 1975.

The termination of benefits on the basis of a physician’s answer to a hypothetical question which is not supported clearly by the record is not justified. Plaintiff’s testimony as well as the film in the record (D-l) indicate that the use of the iron involved the use of the entire hand and movement of the arm and shoulder. The record does not establish that plaintiff used only the thumb and index finger as assumed in the hypothetical question. The testimony of Dr. Charles A. Borne, the neurosurgeon who operated on plaintiff, whose deposition was taken on June 18,1975, the day following termination of compensation benefits, as well as on January 6, 1976, when he saw the film; the film itself; and the testimony of Dr. E. &. Fields, the physician who first treated plaintiff, show no real dispute as to the causal connection between the accident and the injury.

Therefore, we conclude that the second termination of compensation was also arbitrary, capricious and without probable cause, entitling plaintiff to penalties and attorney’s fees.

In view of our resolution of the other issues, it follows that plaintiff is correct in contending that the failure to pay medical expenses was arbitrary,- capricious and without probable cause. The record indicates that the insurer failed to pay many of plaintiff’s medical expenses. Bills (P-11 in globo) received in evidence reflect the following unpaid accounts at the time of trial:

lone’s Drug Store $ 191.54
Dr. Steven Snatic 40.00
Lake Charles Neurological Clinic (Drs. Foster and Borne) 980.00
Oak Park Clinical Laboratory 105.50
Lake Charles Memorial Hospital (Admission of July 30,1975) 534.36
Acadian Ambulance 26.00
Lake Charles Medical and Surgical Clinic (Dr. DeLaureal) 71.00
Dr. George Schneider 110.00
Physical Therapy Clinic 300.00
Dr. Ray Hebert 9.00
TOTAL:_ $2,367.40

Accordingly, plaintiff is entitled to judgment for 12% of the medical expenses which were unpaid at the time of trial.

Plaintiff is entitled to penalties in the amount of 12% on the payments received through the check issued on August 22, 1974 and on the payments received to bring compensation up to date after trial on the merits.

It is necessary to fix the fee of plaintiff’s counsel and we consider, among other factors, the degree of skill exhibited and the volume of work performed in prosecution and collection of the claim. Williams v. Liberty Mutual Insurance Company, supra. In this case, the attorney was-required to participate in a number of preliminary matters and the taking of four medical depositions. The trial itself was relatively brief, involving the testimony of only three witnesses. All factors considered, we think that a fee of $3,500, representing services both in the trial court and on appeal is fair and reasonable.

For the foregoing reasons, it is ordered, adjudged and decreed that there be additional judgment in favor of plaintiff, Julia McFarland, and against the defendant, Home Insurance Companies, in the amount of 12% penalties on the compensation due and payable from June 26, 1974 through August 20, 1974; in the amount of 12% on the compensation due and payable from June 17,1975 until date of payment of past due compensation following trial; in the amount of 12% of unpaid medical expenses of $2,367.40; and for an attorney’s fee of $3,500.

All costs are taxed against the defendant, Home Insurance Companies.

REVERSED IN PART AND' RENDERED.

      . The circumstances surrounding the issuance of this check are not reflected by the record; it is not established, for example, that it was mailed to plaintiff on August 22, 1974.

      . The record contains other bills from Lake Charles Memorial Hospital but it is unclear as to what other amounts are past due.


author: HOOD, Judge. WATSON, Judge DOMENGEAUX, Judge

text:
    Robert FOSTER, Plaintiff-Appellee, v. Jeff D. JACKSON d/b/a/ Jackson Mortgage Service & Construction Company, Defendant-Appellant.
    No. 5617.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 10, 1976.
    Rehearing Denied Dec. 15, 1976.
    Writ Refused Feb. 14, 1977.

      Henry A. Bernard, New Iberia, for defendant-appellant.
    Drewett, Jacques & Thomas by Robert W. Thomas, Lake Charles, for plaintiff-ap-pellee.
    Before HOOD, MILLER, DOMEN-GEAUX, WATSON and GUIDRY, JJ.
   HOOD, Judge.

Robert Foster instituted this suit against Jeff D. Jackson, d/b/a Jackson Mortgage Service and Construction Company, to recover the cost of repairing alleged defects in a house which defendant constructed for plaintiff. The trial court rendered judgment in favor of plaintiff for $4,885.00. Defendant appealed.

The issues presented are whether defendant failed to construct the house in accordance with the terms of the contract and in a workmanlike manner according to standard practices, and if so, what would be the cost of repairing the defects.

Foster and Jackson entered into a contract on or about March 29,1973, under the terms of which defendant agreed to construct a residence building for plaintiff for the sum of $14,350.00. The written evidence of that contract consists solely of two drawings which were prepared by Jackson and a document identified as a “Proposal.” The two drawings included a lot plan, the front elevation and the floor plan of the house. The “proposal” appears to be an offer submitted by defendant Jackson to Mr. and Mrs. Foster to: “Build house — 3 bedrooms, living room, dining room, kitchen and bathroom.”

None of those documents specified the types of materials which were to be used in any part of the house. The proposal provided, however, that “all material is guaranteed to be as specified,” and that “All work to be completed in a workmanlike manner according to standard practices.”

Although Jackson did not sign any of the above documents, the evidence shows that he prepared them and submitted them to plaintiff. Mr. and Mrs. Foster signed the “Proposal,” indicating their acceptance of the offer submitted by Jackson.

Defendant began constructing the house in July, 1973, and he completed it the latter part of September of that year. Plaintiff and his wife accepted the house, signed the necessary papers to complete first and second mortgages on it, paid defendant the full amount due on the contract, and then moved into the house in October, 1973. Plaintiff has been living in the house continuously since that time.

Mr. and Mrs. Foster testified that the first time it rained after the house was completed water seeped in under the front door and stained or damaged a part of the living room carpet. They stated that some time thereafter, from two to five months after they began occupying the building, other defects in the construction became apparent. They made some complaints to Jackson, who promptly sent workmen out to correct the alleged defects, but he apparently did not correct them to plaintiff’s satisfaction.

This suit was filed on February 25, 1975, or about 16 or 17 months after the house was occupied by plaintiff. Plaintiff alleges in Article Six of his petition that the defects in the house consist of the following:

(1) The roof (ceiling) coming loose from the carport;

(2) The eaves of the house coming loose;

(3) Carpet in the living room being ruined due to rain leaking through the house;

(4) Water leaking in around the front door;

(5) Kitchen sink leaking;

(6) Leaks in the bathroom;

(7) Paint on the outside of the house mildewing, peeling and buckling;

(8) Grill in the heater in the bathroom broken;

(9) Molding on the kitchen and bathroom floors mildewing due to leaks from the appliances. '

Foster asserts that the above defects “began to occur in approximately March, 1974,” and that they were caused by the “poor quality of work” performed by defendant and the “poor quality of materials” used by him.

At the trial defendant objected to the introduction of any evidence which tended to enlarge the pleadings. The objection was sustained and was made general. The pleadings have not been enlarged, therefore, and we are concerned on this appeal only with the defects which are specifically alleged in plaintiff’s petition.

The only expert called by plaintiff was Nolan J. Rogers, Sr., an experienced building contractor, who examined plaintiff’s home in February, 1975, about 16 months after the Fosters had moved into it. Rogers testified that he made no attempt to determine whether the materials or workmanship were defective, but that he merely noted the things which plaintiff said he wanted done, and he gave plaintiff an estimate or a bid of the total sum which would be required for performing all of the work which plaintiff pointed out to him. Rogers testified that:

“ . . . I’m not knocking nobody’s work, no. I’m just figuring — I’m just saying what that man made me figure when I went over there. In other words, that’s what I’m stating. Only what he told me. I didn’t tell that man what he should do. He asked me to do this for him, and I wrote it down, and that’s what I figured on . .”
***** *
“I done exactly what he asked me to do.”

Rogers informed plaintiff that he would make all of the repairs which the latter pointed out to him for the total sum of $4,885.00. He did not break down that figure to show the cost of repairing any particular item "or defect, however, and he conceded that the figures he gave included some items which were not specified in plaintiff’s petition. The defendant, who also is an experienced building contractor, did not have the house examined by another expert, but he testified as to the quality of the materials used and the workmanship on the house.

The trial court found that “apparently the contractor was doing his best to give as much home as he could for the price,” but that “he ended up with a home which was unsatisfactory and defective in respects alleged by the plaintiff.” The court found the home to be defective, and he awarded plaintiff the full amount of the bid submitted by Rogers, assigning as his reasons therefor that that was “the only estimate the court has for putting the home in a condition where it should be.”

We have concluded that the trial judge erred in awarding plaintiff the full amount of the bid or estimate submitted by Mr. Rogers.

Applicable here is the rule that a party proceeding against the contractor who has substantially performed a construction contract, bears the burden of proving both the existence of the defects and the cost of repairing or finishing the defective work. Florida Ice Machine Corporation v. Branton Insulation, Inc., 290 So.2d 415 (La.App. 4 Cir. 1974); Maloney v. Oak Builders, Inc., 224 So.2d 161 (La.App. 4 Cir. 1969). If the owner fails to present any evidence as to the cost of repairing or correcting the defective work, he will not be entitled to recover. Elite Homes, Inc. v. Herrmann, 242 So.2d 614 (La.App. 4 Cir. 1970); Federico v. Kratzberg, 163 So.2d 843 (La.App. 4 Cir. 1964).

The defendant in the instant suit substantially completed the construction of the house. The burden rests on plaintiff, therefore, to establish the defects alleged and the cost of repairing or correcting those defects.

(1) Roof (Ceiling) of Carport

Plaintiff testified that some time after he moved into the home, the material used in constructing the ceiling of the carport began to sag and to come loose. Mrs. Foster testified that this occurred seven or eight months after they began occupying the house, at about the time a hurricane struck Franklin, although she believes the ceiling began to come loose before the hurricane occurred. When Mr. Rogers inspected the house in February, 1975, he advised plaintiff to renail the sagging parts of the ceiling of the carport and that was done by plaintiff. Plaintiff concedes that the ceiling of the carport no longer sags, and that that particular defect has been corrected, but he contends that the contractor used an inferior material in constructing the ceiling.

The material used for the ceiling of the carport was described as “Masonite” board. Plaintiff contends that plywood should have been used instead. At his instructions, therefore, Mr. Rogers included in his bid for making repairs the cost of replacing the entire ceiling of the carport with plywood instead of Masonite board.

The contract between plaintiff and defendant did not specify that plywood should be used to cover the ceiling of the carport. The evidence shows that it is a “standard practice” to use Masonite board for such a purpose in constructing relatively inexpensive homes, such as the one involved here. Mr. Rogers testified that some builders prefer to use that type material instead of plywood for that purpose, although he personally prefers not to use it and he thus does not “push it.”

We find no defect in the quality of the materials or in the workmanship insofar as the installation of the ceiling of the carport is concerned. The total estimate made by Rogers includes replacing the ceiling of the carport with plywood, and there is nothing in the record to indicate how much of that total bid should be apportioned to replacing the ceiling of that part of the house. In our opinion the trial judge erred in awarding plaintiff the total amount of the bid submitted by Rogers, since it included the cost of replacing the ceiling of the carport.

(2) Eaves of the House

Plaintiff complains that several months after he moved into the house, some of the material used to cover the eaves began to sag and come loose. After the house was inspected by Rogers, plaintiff renailed the sagging portions of the eaves, and he concedes that that has corrected the alleged defect in workmanship. He contends, however, that plywood instead of “Masonite” board should have been used on the eaves.

There is nothing in the plans, in the contract or in the evidence to indicate that plywood instead of Masonite board should have been used, and we do not consider the use of Masonite board under the eaves to constitute a defect of materials or workmanship.

Rogers testified that at plaintiffs instructions, he included in his total bid, the replacing of all of the “soffit,” or covering under the eaves of the house, with three-eighths inch plywood instead of Masonite board. He explained that he was not asked to determine whether there was a defect in the materials used, but that he was simply told to figure what it would cost to replace the covering under the eaves with plywood, and that he included that in his total bid. The evidence does not show the cost of replacing the Masonite board with plywood.

We think the trial judge erred in allowing plaintiff to recover a sum which included the cost of replacing the Masonite board under the eaves with plywood.

(3)Damage to Carpets; and

(4)Water Leakage at Front Door

The evidence establishes that water seeped in the front door after heavy rains, and that the water had stained or discolored that part of the living room carpet which was near the door.

Mr. Rogers testified that the front door needed to be lowered to prevent water from seeping into the house. We are convinced that water seeped into the house and damaged the carpet as a result of defective workmanship, and that defendant is responsible for repairing that damage. The cost of repairing the front door and of replacing the carpet was included in the total bid which was submitted by Mr. Rogers. The evidence indicates, however, that the defect can be corrected by installing a “storm door” at the front of the house. Defendant Jackson estimated that such a door would cost between $70.00 and $80.00. We think plaintiff is entitled to recover $80.00 for that defect, plus the costs of installing the storm door. The evidence does not indicate how much it will cost or how long it would take a carpenter to install such a door. We, however, have decided to allow plaintiff the wages of a carpenter for one day to install the door. Rogers stated that he charges $6.50 per hour for his services, or $52.00 for an 8-hour day. We conclude that plaintiff is entitled to recover $132.00 for installing a storm door.

The evidence does not show how much of the carpet was damaged. We believe, however, that only the carpet which was in the living room could have been damaged by water seepage, since the front door opened directly into that room. A drawing of the floor plan of the house is in the record and it indicates that a maximum of 30 square yards of carpet would be required for the living room area. We have decided to allow $10.00 per square yard for replacing the carpet in that part of the house, or a total of $300.00 for that item of damage.

(5)Kitchen Sink Leaking

Plaintiff discovered a leak in the plumbing under the kitchen sink some time after he moved into the house. He reported that fact to defendant Jackson, and the latter promptly sent someone out to repair it. Plaintiff concedes that the defect has been repaired, and that there is no longer a leak under the kitchen sink. The evidence does not show that he incurred any expense in getting that corrective work done. He thus is not entitled to recover for that alleged item of damage.

(6)Leaks in the Bathroom

Mr. and Mrs. Foster testified that about four months after they began occupying the house there developed water leaks near the base of the commode and underneath the bath tub. Their testimony was supported by that of Mr. Rogers who observed those leaks when he examined the house. We are convinced that the leaks resulted from faulty workmanship on the part of the defendant, and that plaintiff is entitled to recover the cost of repairing those defects.

Rogers testified that it would be necessary to take out the bath tub in order to repair that leak. The evidence does not indicate how much it would cost or how long it would take a plumber to repair the leaks in the bathroom. We believe that it would be fair, however, to award plaintiff the cost of labor for two 8-hour days, at $52.00 per day, or a total of $104.00, for making these plumbing repairs.

(7)Paint on Outside of House

Plaintiff alleges that the paint on the outside of the house began “mildewing, peeling and buckling” a few months after the construction was completed. He instructed Rogers to include in his bid or estimate the cost of repainting the entire house, and Rogers thereupon included that cost in his $4,885.00 bid. The evidence does not show how much of that bid was intended to cover the cost of repainting the building.

Plaintiff Foster admitted at the trial that the paint on the outside of the house had not peeled off or buckled, as alleged. He testified, in fact, that the paint “stuck to the wall,” that “it’s not falling off,” and that “the paint’s not coming off.” He stated, however, that there had developed “black spots all over the house.” The outside of the house was painted green, and we assume that the black spots he described were caused by mildew.

Rogers stated that it appeared to him that only one coat of paint had been put on the house when it was built, and that he thought the outside of the building needed a coat of paint. He stated, however, that he did not notice that the paint had peeled, buckled or mildewed. He testified “I haven’t seen mildew that I can remember,” and that plaintiff merely asked him to include the cost of repainting the house in his bid.

Defendant Jackson testified that he warned plaintiff that the type and color of paint which plaintiff selected was likely to mildew, and he suggested that plaintiff wash the house down with a solution of clorox and water to cure or prevent it. Plaintiff stated that he never washed the house with clorox, but he insisted that no one ever told him to do that.

We conclude that the mildew which developed on the house several months after the construction was completed was not caused by faulty materials or workmanship, and that defendant is not liable to plaintiff for the cost of repainting the building.

(8)Grill in Heater

The evidence indicates that one of the two clay radiants in a bathroom space heater was broken when plaintiff moved into the house. The cost of such a radiant is about $2.00. We find that plaintiff is entitled to recover $2.00 for that item of damage.

(9) Molding on Kitchen and Bathroom Floors

Mr. Rogers found no mildew affecting the moldings on the floor of the kitchen or bathroom. There thus is no merit to plaintiff’s claim that those moldings became mildewed due to faulty plumbing work on the part of defendant Jackson.

For the reasons assigned, the judgment appealed from is amended by reducing the amount of the award from $4,885.00 to the sum of $536.00. In all other respects the judgment of the district court is affirmed. One-half the costs of this appeal are assessed to plaintiff-appellee, and the remainder of the costs are assessed to defendant-appellant.

AMENDED and AFFIRMED.

WATSON, J., dissents and assigns written reasons.

DOMENGEAUX, J., dissents and assigns written reasons.

WATSON, Judge

(dissenting):

I respectfully dissent for the reasons assigned by Domengeaux, J., and for the following additional reasons:

Although the evidence in the record is somewhat weak, it is sufficient—if the trial court’s considered decision is accorded the proper weight—to affirm the judgment.

For example, much of the dispute revolves around the use of masonite board to cover the ceiling of the carport and to box in the area under the eaves. The majority says that the record shows that it is a “standard practice” to use masonite board for such a purpose in constructing relatively inexpensive homes. The record does not show this.

The expert who testified said that some people use masonite board for siding. There is no unbiased testimony that mason-ite is used for carport ceilings or boxing in the eaves. In fact, the expert said:

“I don’t know what other people use, but I wouldn’t use that on nobody’s house. I wouldn’t use it on a doghouse.” (TR. 49)

Apparently, the trial court accepted this testimony along with other testimony that this expert gave concerning the defects. I agree that the testimony could have been more precise, but it is the only unbiased testimony in the record. The defendant did not call an expert or contradict the plaintiff’s expert in any way except with his (the defendant’s) own statements.

Finally, there is no basis for the award of $536 for repairs. If the trial court is manifestly in error, the defendant is entitled to a complete reversal.

I dissent.

DOMENGEAUX, Judge

(dissenting).

Plaintiff’s evidence was less than overwhelming but sufficient to preponderate. There is evidence in the record to sustain the fact findings of the District Judge who stated:

“. . . The home owner moved into the house, and according to his testimony, and the proof of his witnesses, began to have trouble almost immediately with water blowing in the front door whenever there was a driving rain, causing a staining and discoloration of the carpet in the living room. Subsequently, some few months after moving in, the home owner began to experience difficulty with the plumbing, with the boxing around the eaves of the house, with the ceiling in the carport, with the molding in the kitchen. The contractor was contacted with respect to some plumbing difficulty, according to his testimony, and according to the testimony of all, the plumbing in the kitchen itself was repaired apparently by cutting a panel on the inside of the cabinet located below the sink, and taping up the masonite or wall covering contained underneath the sink, apparently with ordinary masking tape. The home owner complains that the boxing and the ceiling of the carport were made out of a defective material that will not withstand any ravages of weather in this area. The home owner’s backed up in this complaint by the testimony of the expert witness that the home owner obtained to come in and make an estimate for the repair of the house. The testimony of the defendant, and the testimony of the plaintiff, and of his wife, is almost directly contradictory in a great number of details. Apparently the contractor was doing his best to give as much home as he could for the price, however, it appears to the Court, in view of all the testimony, that he ended up with a home which was essentially unsatisfactory and defective in respects alleged by the defendant — I mean by the plaintiff. The Court has only the evidence on behalf of the defendant himself, no impartial or disinterested witnesses having appeared before the Court on behalf of the defendant. The only testimony the Court has as to the cost of repairing the defective conditions of the home is the testimony of Mr. Nolan J. Rogers, who has had some twenty-five years of experience building and repairing and renovating homes and commercial properties. Taking the entire matter into consideration, the Court does find that the home is defective in the particulars alleged by the plaintiff, and taking into consideration that the only estimate the Court has for putting the home in a condition where it should be, being that of Mr. Nolan J. Rogers, expert witness for the plaintiffs, the Court will find for the plaintiffs in the amount of Mr. Rogers estimate . .

For the above reasons, and for those assigned by Judge Watson, I respectfully dissent, and would affirm the District Court judgment.


author: CULPEPPER, Judge.

text:
    John S. ELLIS, d/b/a John S. Ellis Architect, Inc., Plaintiff and Appellee, v. Gilbert L. DOZIER et al., Defendants and Appellants.
    No. 5649.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 10, 1976.
    Rehearing Denied Dec. 15, 1976.

      Dozier, Keyser & Kirkpatrick by Thomas K. Kirkpatrick, Baton Rouge, for defendants and appellants.
    Richard M. Olsen, New Orleans, Marcan-tel & Cassidy by Charles R. Cassidy, Jennings, for plaintiff and appellee.
    Before HOOD, CULPEPPER and GUI-DRY, JJ.
   CULPEPPER, Judge.

This is an action to recover architectural fees stipulated in a contract between plaintiff, an architect, and defendant, the developer of a large public housing project in Jennings. Defendant, G. L. Dozier, Inc. (Dozier), reconvened against plaintiff for damages allegedly sustained as a result of errors and omissions in the architectural plans and specifications. The trial court rendered a judgment (1) dismissing with prejudice plaintiff’s claim against Gilbert L. Dozier, individually; (2) dismissing with prejudice plaintiff’s claim against the Housing Authority for the City of Jennings; (3) ordering defendant, G. L. Dozier, Inc., to pay plaintiff the sum of $20,000, the full amount of the architectural fee provided in the contract; and (4) rejecting defendant’s reconventional demand for damages. Defendant, G. L. Dozier, Inc. appealed.

The substantial issues are: (1) Under the terms of the contract for architectural services, is plaintiff now entitled to the full amount of his fee? (2) Did the trial court err in rejecting defendant’s reconventional demand?

The record shows the defendant, G. L. Dozier, Inc. (Dozier), entered into a contract with the Jennings Housing Authority and the U. S. Department of Housing & Urban Development (HUD), to build a public housing project identified as “Jennings Turnkey Project LA-118-1” (the project). The project consisted of 150 housing units of varying descriptions. The total contract price payable to Dozier upon completion of the project was in excess of $2,440,000.

By letter dated June 27, 1973, Ellis and Dozier entered into an agreement whereby Ellis was to prepare the architectural plans and specifications for the project. The letter, which bears the signatures of Ellis and Gilbert L. Dozier, president of G. L. Dozier, Inc., states:

u * * *
“By mutual agreement between you and all previous sponsors, your fee on the project is to be Twenty Thousand and No/100 ($20,000.00) Dollars. I hereby agree to pay or cause to have paid the entire $20,000.00 architectural fees as follows:
“1. Seventy-five (75%) per cent ($15,-000.00) of the fee to be paid at the time the blanket construction mortgage is placed on the construction site.
“2. The balance of the fee to be paid at the time the project is accepted by the Jennings Housing Authority and HUD. “If the foregoing properly sets forth our understanding, please execute in the signature block below.”

Subsequently, Ellis prepared the plans and specifications for the project. Dozier relied upon these plans in preparing his initial bid on the project and later in the actual construction of the project.

A blanket construction mortgage was placed on the property in October, 1973, and the Jennings Housing Authority accepted title to the project on October 15, 1974. The plaintiff, however, has not received any of the $20,000 fee stipulated in the contract.

Before discussing the substantial issues, we must dispose of plaintiff’s claim in his brief that he is entitled to a fee of $64,000, the amount sued for, instead of the $20,000 fee stipulated in the contract document previously quoted. Plaintiff, who was awarded a judgment of $20,000 in the trial court, did not appeal or answer defendant’s appeal. Therefore, he is precluded from having the judgment of the trial court modified or revised on appeal to increase the amount of the award of $64,000. La. C.C.P. Article 2133.

The first issue involves the interpretation of the contract between Ellis and Dozier, which sets Ellis’ architectural fee at $20,-000. There is no question that 75% of the fee ($15,000) became due when the blanket construction mortgage was placed on the project in October, 1973. The contract provided that the balance of the fee was to be paid at the time the project was “accepted” by the Jennings Housing Authority and HUD

The parties disagree about the construction of the word “accepted” in the contract. Plaintiff argues that the project was accepted when title was transferred by the developer to the Jennings Housing Authority on October 15, 1974. The trial judge accepted plaintiff’s argument.

Defendants argue that acceptance of the project has not yet occurred. They explain that although the Housing Authority for the City of Jennings has taken title to the property, $106,000 was withheld by the Authority from the purchase price to secure the project’s completion. Therefore, according to the defendants, the project has not been “accepted”. Defendants urge that until the entire purchase price is paid, there has been no acceptance.

Dozier prepared the contract setting Ellis’ fee for architectural services. If there is any doubt as to what the term “accepted” means, that doubt must be resolved against Dozier, the party who drafted the agreement. LSA-C.C. Articles 1957 and 1958. We affirm the trial court’s decision that the project was “accepted” by the Jennings Housing Authority and HUD when the developer transferred title to the project to the Jennings Housing Authority on October 15, 1975 and that plaintiff is entitled to the full fee of $20,000.

We now'address the issues presented by defendants’ reconventional demand. The first ground alleged in the reconven-tional demand is that Ellis drew the foundation plans for all of the project “a” type buildings 3 inches narrower than specifications provided. As a result of this error, more materials and labor were necessary. The contractor estimated the construction cost of adding 3 inches to the foundations to be $5,091, while Ellis estimated the increased cost to be $2,400. The increased cost resulting from the mistake in the foundation plans was ultimately borne by Dozier, because Dozier had entered into a “cost-plus” contract with the general contractor. In other words, Dozier had agreed to pay the contractor the actual cost of building the project, plus a certain amount for profit.

Ellis admitted making the 3-inch error in the foundation plans for the type “a” buildings, but explained that a 2-inch error in the foundation plans for the storage buildings located behind the dwellings in the project resulted in a savings to the developer amounting to $1,500 to $2,000. According to Ellis, both foundation plan errors were discovered and discussed at length with Dozier and Roussel (Dozier’s general contractor) prior to the time that Dozier contracted with HUD and the Jennings Housing Authority to construct the project. Ellis testified further that the conversation between him, Dozier and Roussel produced a general agreement that the cost increase associated with the 3-inch foundation plan error and the cost decrease associated with the 2-inch error canceled each other out. In this regard, Ellis testified that the difference between the 3-inch error working to Dozier’s detriment and the 2-inch error benefiting Dozier was no more than $1,000.

Neither Dozier nor Roussel could recall discussing these foundation plan errors with Ellis, but Roussel did acknowledge that he knew of both errors. The trial judge made no express finding of fact as to whether Ellis and Dozier agreed to a “wash out” of the two errors. However, he did find on the record as a whole that the proof was insufficient to show that Dozier suffered a net loss as a result of these errors. We find the record reasonably supports this conclusion.

Ellis allegedly committed a second error by not including attic access panels in the architectural plans. According to the general contractor’s estimate, this “mistake” resulted in a cost increase of $3,123. The developer sought to pass these increased costs along to the Jennings Housing Authority by entering into “an amendatory agreement” to increase the contract selling price of the project by an amount equal to the cost of installing the attic access panels. Requests for amendatory agreements to contracts of sale for public housing projects, such as the one made regarding access panels in the present case, are reviewed by HUD officials. In the present case, HUD reviewed Dozier’s request and allowed the developer an increase of $2,067 in the contract price. In a letter dated June 18, 1974 from Bruno T. Lohrmann, director of HUD’s Operations Division in New Orleans, to the executive director of the Jennings Housing Authority, Lohrmann explained HUD’s position regarding the access panels:

“Our cost analysis indicated that an extra $2,067 will be allowed the developer for this change. However, we feel that in allowing this extra we are showing a considerable amount of discretion in this matter. These items are not an amenity but an integral part of the building provided by common construction practice whether they are indicated on the plans or not. Accordingly, these items are necessary from the contractor’s standpoint to permit inspection of attic components at the time of final inspection.”

At trial, Lohrmann and Roussel, the general contractor, testified that by common construction practice attic access panels are built whether they are drawn into the plans or not. This testimony indicates that Ellis may have been following accepted architectural and construction procedures in omitting attic access panels from the plans. Defendant failed to produce any evidence tending to prove that the absence of these panels in plaintiff’s plans amounted to a deviation from accepted architectural practice, or that Ellis failed to exercise the care and skill required of an architect. Therefore, Dozier’s claim for damages resulting from this alleged mistake are rejected.

The third and final error alleged in defendant’s reconventional demand is that electric ranges instead of gas ranges were included in the plans and specifications. The trial judge concluded that there was nothing in the record to prove that this was an error or omission on the part of the architect. We agree. There is no evidence to indicate that Ellis knew or should have known that Hud would later insist upon a change to gas ranges. By including electric ranges in the plans and specifications, Ellis chose the type of range which could be installed at the least cost to the developer. Therefore, this claim for damages is rejected.

For the reasons assigned, the judgment of the trial court is affirmed. All costs of this appeal are assessed against defendant-appellant.

AFFIRMED.