text:
    Victor CASSEY et ux. v. ARNAUDVILLE INDUSTRIES, INC.
    No. 13718.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 10, 1980.
    Rehearing Denied Jan. 26, 1981.
    Ernest L. Johnson, Milton Osborne, Jr., Baton Rouge, for plaintiffs-appellants Victor Cassey and Margrett Cassey.

      John W. Swanner, Baton Rouge, for defendants-appellees Arnaudville Industries, Ine.
    Before COVINGTON, CHIASSON and LEAR, JJ.
   CHIASSON, Judge.

In this redhibitory action plaintiffs-appellants, Victor Cassey and Margaret Cassey, appeal the ruling of the trial court awarding them a reduction of the purchase price of a mobile home in lieu of a rescission of the sale. Appellants further complain of the trial court’s failure to award attorneys’ fees. Appellee, Arnaudville Industries, Inc., answered the appeal claiming the trial court abused its discretion in awarding an excessive amount to the appellants.

Wellington Homes Sales Center, a division of Arnaudville Industries, Inc., sold a mobile home to appellants for $19,219.00 on November 1, 1978, which had to be specially ordered. Wellington Homes Sales Center was named as a defendant in the original petition but was never served with process. The seller is therefore not a party to this litigation between the buyer and the manufacturer.

Appellants listed twenty-seven (27) items or defects which rendered this mobile home useless. The most serious defect is that the roof “rumbled” and made excessively loud noise when the wind was blowing.

Appellee attempted to correct this defect without success on two occasions. The evidence establishes that this defect could be corrected by properly replacing the roof. The trial court held that this defect, along with five (5) other minor defects, were not sufficient for rescission and ordered a reduction in the amount of $4,262.70.

The pertinent Civil Code Articles on red-hibition and reduction of price are as follows:

“Art. 2520. Redhibition, definition.
Redhibition is the avoidance of a sale on account of some vice or defect in the thing sold, which renders it either absolutely useless, or its use so inconvenient and imperfect, that it must be supposed that the buyer would not have purchased it, had he known of the vice.”
“Art. 2543. Redhibition and reduction as alternative demands.
The purchaser who has contented himself with demanding a reduction of the price, can not afterwards maintain the redhibi-tory action.
“But in a redhibitory suit, the judge may decree merely a reduction of the price.” “Art. 2544. Rules governing action for reduction of price.
The action for a reduction of price is subject to the same rules and to the same limitations as the redhibitory action.”

Under a long line of jurisprudence starting with Media Production Consultants, Inc. v. Mercedes-Benz of North America, Inc., 262 La. 80, 262 So.2d 377 (1972), the action by the buyer against manufacturers is acceptable even without privity of contract. See Robertson, Manufacturers’ Liability, 50 TLR 50 1975-76.

As Judge (now Justice) Dennis stated in Smith v. Max Thieme Chevrolet Company, Inc., 315 So.2d 82, 86 (La.App. 2nd Cir. 1975):

“Recently the Louisiana Supreme Court held that a consumer may recover from the manufacturer for pecuniary loss resulting from the purchase of a new automobile that proves unfit for use because of latent defects, even if there is no privity between the consumer and the manufacturer. ... In a later case the court made it clear that the consumer’s cause of action is for the most part governed by Civil Code principles pertaining to the redhibitory action. . . . ”
“There are apt to be conceptual difficulties in this marriage of the modern consumer protection policy and the redhibito-ry action, which was conceived in the context of a simpler market. . . . ”

The inconsistency herein occurs by the trial court’s award of a reduction in the purchase price when there exists no contract with a purchase price between the buyer and the manufacturer. But the Civil Code does give that option to the trial court and we agree with its action in this regard. When there is only a partial failure of consideration the trial judge has discretion to order a reduction of price instead of a rescission of the sale. One of the leading cases in this area is Wade v. McInnis-Peterson Chevrolet, Inc., 307 So.2d 798, 802 (La. App. 1st Cir. 1975), in which this court reviews the jurisprudence in this matter, as follows:

“In every redhibitory action if the evidence establishes only a partial failure of consideration, a reduction in the purchase price may be granted to the buyer. See Ingersoll v. Star Chrysler, Inc., La.App., 234 So.2d 85 (4 Cir. 1970), writ refused 256 La. 365, 236 So.2d 499 (1970); Wolfe v. Henderson Ford, Inc., La.App., 277 So.2d 215 (3 Cir. 1973). See also LSA-C.C. Arts. 2541, 2543.
“In the Star Chrysler case, the Court said:
‘In every redhibitory action if the evidence establishes only a partial failure of consideration the court has the power and duty to decree a quanti minoris, or a reduction of the purchase price.’
“The Court, in Henderson Ford, ruled:
‘A decree of quanti minoris is responsive to an action for redhibition, being expressly authorized by LSA-C.C. Art. 2543. It follows that in every redhibi-tory action, the judge has the power and the duty, if he believes that the evidence establishes only a partial failure of consideration, to decree a quanti minoris.’

“In such a case, the amount of the reduction in price should be the difference between the actual purchase price and the price a reasonable buyer and seller would have agreed upon if they had both known of the defect. See Menville v. Stephens Chevrolet, Inc., supra; Tauzin v. Sam Broussard Plymouth, Inc., supra; Gauche v. Ford Motor Company, La.App., 226 So.2d 198 (4 Cir. 1969).

“In Stephens Chevrolet, in determining the amount of reduction to which the buyer was entitled, the Court said:

‘The diminution which the trial judge may decree under C.C. art. 2543 is theoretically the difference between the sale price and the price the reasonable buyer and seller would have agreed upon if they had known of the defects. ‘To prove the theoretical price to which the actual sale price should be reduced, a plaintiff attempts to establish the fair value as of the time of the sale, if the defects had been known. Evidence as to this theoretical value may consist of expert opinion testimony, of costs expended to place the thing in sound condition, or of other facts bearing on the reduced price a forewarned buyer would have paid and a seller with knowledge of the defects would have accepted. But in the final analysis the trier of fact cannot mathematically calculate what price the parties would have agreed to, if they had known of the defects; the trier must consider the overall evidence and, using limited discretion, must set a reduced sale price which fictionally represents the fair value at the time of sale.’ ”

In the instant case, the trial court did not abuse its discretion in finding that the defects were not sufficient for a rescission. The determination of reduction in price as stated in the Wade case, supra, was the cost to be expended to put the mobile home in sound condition. The court had before it estimates from a few hundred dollars to over five thousand dollars. It did not err in accepting the estimate of a local concern with experience in this type of repairs. The trial court’s award was therefore not excessive.

The final issue is the court’s denial of attorneys’ fees to the appellants. We do not agree with the trial court’s denial of attorneys’ fees. Again quoting from the Smith case, supra:

“... We find, however, that one of the thorny problems, with which we were prepared to deal, viz., whether the manufacturer must pay attorneys’ fees, has been resolved. It was established in Media Production Consultants, Inc. v. Mer cedes-Benz of N.A., Inc., supra, that the manufacturer may be held solidarily liable for performance of the dealer’s obligations to restore the retail price and expenses of the sale as provided by Article 2531. In Rey v. Cuccia, supra, the Supreme Court held that in addition to his solidary obligations the manufacturer is liable to the consumer for attorneys’ fees. This conclusion was based on the jurisprudential rule that the manufacturer is presumed to know of the defects in the thing made by him, and consequently, is liable under Article 2545 for damages and attorneys’ fees, in addition to restitution of the price and repayment of the expenses of the sale. . . . ”

The trial court in its oral reasons for judgment stated that there was no evidence that showed the defendant knew or should have known of the defects. Under the jurisprudence, a manufacturer “is presumed to know of the defects of the thing which it manufactures and therefore is deemed to be in bad faith.” Alexander v. Burroughs Corp., 359 So.2d 607, 609 (La. 1978). See also Rey v. Cuccia, 298 So.2d 840 (La.1974). Under Civil Code Article 2545, “(T)he seller, (manufacturer) who knows the vice of the thing he sells and omits to declare it, besides the restitution of price and repayment of the expenses, including reasonable attorneys’ fees, is answerable to the buyer in damages.”

Appellants are therefore entitled to collect attorneys’ fees. La.C.C. art. 2544. The judgment of the trial court is amended to grant appellants an additional amount of One Thousand, Two Hundred and No/100 ($1,200.00) Dollars for attorneys’ fees for work performed in the trial and appellate courts.

For these reasons, the judgment of the trial court is amended and affirmed at ap-pellee’s costs.

AMENDED AND AFFIRMED.


source: Caselaw Access Project

author: CHIASSON, Judge.

license: Public Domain

text:
    Linda Howell KASHEFI v. Mohsen David KASHEFI.
    No. 13722.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 10, 1980.

      Máxime LaBranche, Baton Rouge, for plaintiff-appellee Linda Howell Kashefi.
    William J. Staser, Brian L. Williams, Baton Rouge, for defendant-appellant Mohsen David Kashefi.
    Before COVINGTON, CHIASSON and LEAR, JJ.
   CHIASSON, Judge.

Defendant-appellant, Mohsen David Kashefi, appeals a change of custody determination of his two and one-half year old daughter back to the child’s mother, Linda Howell Kashefi, plaintiff-appellee.

The parties were legally separated in February of 1979, with custody of the minor child being placed with the mother. In October of 1979, the trial court changed custody of the minor to the father based on the mother’s open relationship with a graduate student. A final divorce was granted on January 29, 1980 and Mrs. Kashefi married her paramour four days later.

On February 12, 1980, the mother petitioned for and later obtained the permanent care and custody of her daughter. That judgment is now before us in this appeal.

Appellant’s argument on appeal focuses on whether the trial court erred in changing custody without first finding that the circumstances in which the minor child was presently living was deleterious to her best interest. In addition, the appellant argues that the mere fact of appellee’s marriage is insufficient to provide a basis for the court’s actions.

The Supreme Court ease of Fulco v. Fulco, 259 La. 1122, 254 So.2d 603 (1971), provides the guidelines for Trial Courts and Courts of Appeal in change of custody cases. In our situation the third and fourth principles announced in that case are the only two applicable. These principles read as follows:

“(3) When the trial court has made a considered decree of permanent custody in the light of the above principles, even though such custody is subject to modification at any time when a change of conditions demands it, the party seeking the change bears a heavy burden of proving that the continuation of the present custody is so deleterious to the children as to justify removing them from the environment to which they are accustomed. ...”
“(4) Upon appellate review, the determination of the trial judge in child custody matters is entitled to great weight. He is in a better position to evaluate the best interests of the children from his total overview of the conduct and character of the parties and the children and of community standards. His discretion on the issue will not be disturbed on review in the absence of a clear showing of abuse thereof... . ”
Fulco, supra, p. 605.

The trial judge in his Reasons for Judgment stated:

“. . . The father, in the meantime, it seems to me from the evidence is really unable to act as father and mother both or as father and surrogate mother for this child. * * * The court is of the opinion that the father has done his very best, but that very best is not totally in the best interests of the child. * * * That best was not quite as good as the court now believes the mother and new husband can offer this child. Therefore in the interests of what it believes to be the best hope for this child’s present and future, custody is removed from the father and returned to the mother.. .. ” (TR p. 51 & 52).

The record reflects that Mr. Kashefi did his best while having custody of the child, but the lack of child rearing experience and of cooking skills hindered him. Since the trial judge made this determination, our only task is to see if he clearly abused his discretion. Fulco, supra, and Schexnayder v. Schexnayder, 371 So.2d 769 (La.1979). We believe he did not.

The fact Mrs. Kashefi married her paramour was not the sole reason that the judge awarded her the custody of her daughter. The court found she is now employed, she sought and obtained counseling, and she is better able to provide for the child. The argument of counsel for defendant that the case of Shanklin v. Shanklin, 376 So.2d 1036 (La.App. 1st Cir. 1979) controls has no merit, since in that case the mother’s recent marriage to her paramour was the sole reason for seeking custody back to the mother.

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

AFFIRMED.


author: LEAR, Judge.

text:
    In the Matter of the SUCCESSION of Victor CAGE.
    No. 13724.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 10, 1980.
    Otha Curtis Nelson, Sr., Baton Rouge, for plaintiff-appellant Viola Reynolds Young.
    Ben R. Downing, Jr., David M. Miller, Baton Rouge, for defendant-appellee Harold Bond Cage.
    Before COVINGTON, CHIASSON and LEAR, JJ.
   LEAR, Judge.

Prior to 1965, Victor Cage, decedent, lived alone on a two acre tract, more or less, in Baton Rouge, Louisiana. In 1965, appellant, Viola Reynolds Young, was hired by decedent to care for him and to perform housework. In exchange therefor, appellant was permitted to live in a wooden structure located on the premises. Cage had apparently represented to appellant that he would one day will the house to her. Improvements were made at the expense of appellant and by her relatives and friends.

In 1972, decedent executed his last will and testament which, inter alia, named Viola Reynolds Young as one of the legatees. The will stated in pertinent part:

“I give and bequeath to Viola Reynolds Young the East Vz of my above described property together with improvements thereon.
“In the event that Viola Reynolds Young should predecease me, I give and bequeath the East Vz of my above described property, to the children of Viola Reynolds Young, namely, Ethel Young Warner, Gladys Young Gant, Tom Louis Young and Leroy Young, share and share alike. Should any of the legatees named in this paragraph predecease me, the portion which would have been inherited by said legatees shall accrue to the survivors in equal portions.”

In 1978, the said Victor Cage sold a 1.241 acre portion of the two acres owned by him to the State of Louisiana, Department of Transportation and Development. This land was used to construct a portion of the 1-110 route in East Baton Rouge Parish. The consideration paid to decedent was the sum of $46,947.00. A portion of the improvements, consisting of a wood frame house, was expressly retained by the decedent, provided removal was effected within 90 days from receipt of payment or, if the house was tenant occupied, within 30 days after being vacated by the tenant. Shortly after the expropriation sale of the property herein, Victor Cage died. His succession was duly opened, his will probated, and the legatees placed in possession of his estate.

Viola Reynolds Young was sent in possession per judgment of the remaining portion of the east one-half of the property and the wood frame house, which was later moved to that portion received per judgment. She was aggrieved that the judgment of possession recognized Harold Cage, the adopted son of decedent, as the owner of the proceeds paid by the state to decedent as a result of the expropriation. She, therefor, filed this action to annul the succession judgment of possession.

The trial court, after trial on the merits, dismissed plaintiff-appellant’s claim. We are of the same view and, therefore, we affirm.

Appellant specifies several errors, but we are persuaded that only one merits discussion. Furthermore, because of his cogent treatment of the issue, we adopt the following portion of the reasons for judgment of the trial court, to-wit:

“The facts in this case are not in dispute. They show that the deceased, Victor Cage, purchased Lot 69, Suburb North Baton Rouge, from University Realty Company by act dated July 1, 1946. Approximately in 1965 he commenced to build a house on the lot for the benefit of Viola Young, the petitioner herein, who had been caring for him. This house was completed by Humphrey Warner, a son-in-law of Viola Young. She has resided in the house from that time.
“On January 25,1972, Victor Cage executed his last will and testament wherein he bequeathed to Viola Young ‘.. . the East V2 of my above described property (Lot 69), Suburb North Baton Rouge) together with improvements thereon.’ Pri- or to his death, Victor Cage sold to the State of Louisiana, through the Department of Transportation, a portion of the East V2 of Lot 69, which he had previously bequeathed to Viola Young. In said sale a provision was made that the Vendor was to retain the wood frame residence and be required to move it at vendor’s expense with (sic) 90 days of receipt of payment.
“In the Judgment of Possession, the plaintiff, was sent into possession of the ‘remaining portion of the East V2 of the resubdivision of Lot 69, Suburb North Baton Rouge’ and was recognized as the owner of the wood frame residence located at 1946 Central Road, Baton Rouge, Louisiana. Petitioner has moved the residence to another portion of the East V2 of Lot 69.
“Article 1695 of the Civil Code is dis-positive of the issues raised in this case. It provides in part:
“ ‘(A) sale made by the testator of the whole or a part of the thing bequeathed as a legacy, amounts to a revocation of the testamentary disposition, for all that has been sold . . . ’
“If it was the testator’s desire that Viola Young receive the proceeds from the sale of the property he should have then added a codicil to his will making such disposition. In the absence of such action on his part, his adopted son, Harold Bonds Cage, is entitled to all of the property remaining in succession and not disposed of in the will. Consequently, the contention of the petitioner in this respect has no merit.
“The remaining claims of the petitioner relate to the wood frame residence located at 1946 Central Road. She was placed in possession of the residence. Whether or not she contributed towards its construction is not before the court. She has taken possession of the residence and has moved it at her expense as she is required to do under the law. The judgment of possession rendered in this matter is consistent with the provisions of the will and therefore should not be annulled.”

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

AFFIRMED.

      . This fact and certain details of the sale (expropriation) were testified to by witnesses called by plaintiff-appellant. However, during the trial plaintiff-appellant objected to defense counsel’s offer of a certified copy of the sale. The district court sustained the objection because the same was not listed in the pretrial agreement. Defendant submitted, nevertheless, on the proffer. On appeal, plaintiff-appellant withdrew his objection and asked that the court consider the authentic acts proffered. Pretermitting a ruling on the correctness of the trial judge’s action, we will consider the documents.


author: COVINGTON, Judge.

text:
    In re Widless Joseph BRUNET and Aline Kahl Brunet, Applying for Adoption of Alison Aline Moneyhon. In re Margaret Smith MONEYHON, Applying for Adoption of Alison Aline Moneyhon.
    Nos. 13725, 13726.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 10, 1980.
    Edward T. Diaz, Golden Meadow, for petitioners-appellees, Widless Joseph Brunet and Aline Kahl Brunet.
    Larry P. Boudreaux, Thibodaux, for petitioner-appellant, Margaret Smith Money-hon.
    Before COVINGTON, CHIASSON and LEAR, JJ.
   COVINGTON, Judge.

This matter comes on for appeal from judgment in each of two consolidated cases for adoption of the same child, Alison Aline Moneyhon. The first suit was brought pursuant to LSA-R.S. 9:422.1 by Widless Joseph Brunet and Aline Kahl Brunet, the maternal grandparents of the child, based on legal custody of the mother, Dorothy Brunet Moneyhon, and the failure of the father, David Stewart Moneyhon, Jr., to comply with a court order to support the child, for a period of one year. The father filed exceptions designed as “Peremptory Exceptions” on the grounds of no right and no cause of action, because custody of the child had never been awarded to the grandparents by court judgment and that the father had not given his consent to the adoption.

In the second suit the present wife of the father of the child, Margaret Smith Money-hon, petitioned for adoption of the child. The grandparents who are seeking adoption of the child filed a peremptory exception of no right of action on the ground that the mother had not failed to support the child and has not consented to the adoption by the father’s wife.

After hearing on the peremptory exceptions in the consolidated matter, the district court (in its capacity as juvenile court) sustained the exception of no right of action filed by Widless Joseph Brunet and Aline Kahl Brunet, and dismissed the suit of Margaret Smith Moneyhon with prejudice “since the petition as filed shows that the applicant for adoption meets none of the requirements of R.S. 9:422.1;” and the court below overruled the peremptory exceptions filed by the father, “as the pleadings and the law afford an opportunity to the Grandparents to adopt under the provisions of R.S. 9:422.1.”

It is obvious that the trial judge properly sustained the peremptory exception and dismissed the suit of the father’s present wife, Margaret Smith Moneyhon. The spouse of the petitioner (David Stewart Moneyhon, Jr.) has not been granted custody of the child by a court of competent jurisdiction and the mother (the other legitimate parent) has not refused or failed to comply with a court order of support for a period of one year. See LSA-R.S. 9:422.1; Haynes v. Mangham, 375 So.2d 103 (La. 1979). We affirm the judgment dismissing the suit of Margaret Smith Moneyhon with prejudice at appellant’s costs. (In re: Margaret Smith Moneyhon, Applying for Adoption of Alison Aline Moneyhon, Number 883-A, 17th Judicial District Court, Parish of Lafourche, Louisiana.)

With regard to the appeal from the judgment overruling the peremptory exceptions, the entire proceeding in this suit on the exceptions shows that the trial judge, as well as the parties, considered the exceptions of no right and no cause of action filed by the father only as a preliminary matter which was to be disposed of prior to trial on the merits of the adoption. The judgment on the father’s exceptions does not purport to dispose of the merits of the grandparents’ application for adoption. The judgment was merely an interlocutory judgment overruling the peremptory exceptions of no right and no cause of action. The judgment, not being a final judgment or an interlocutory judgment which may cause irreparable injury, is not appealable, and the appeal from the judgment overruling the peremptory exceptions of the father, David Stewart Moneyhon, Jr., must be dismissed. LSA-C.C.P. art. 2083.

It is well settled that judgments overruling peremptory exceptions are interlocutory, not final, judgments; and, since the appellant in the instant case has revealed no irreparable injury, it is clear that there is no basis for the appellant’s appeal. See Millet v. Johnson, 352 So.2d 1301 (La. App. 4 Cir. 1977); Mauterer v. Tillery, 328 So.2d 755 (La.App. 1 Cir. 1976); Cambre v. Gerald, 219 So.2d 572 (La.App. 4 Cir. 1969). We thus dismiss the appeal in the matter entitled “In re: Widless Joseph Brunet and Aline Kahl Brunet, Applying for Adoption of Alison Aline Moneyhon, Number: 879-A, 17th Judicial District Court, Parish of La-fourche, Louisiana,” at the costs of appellant, Margaret Smith Moneyhon.

APPEAL IN NUMBER 13,725 DISMISSED.

JUDGMENT IN NUMBER 13,726 AFFIRMED.

      . Although both the natural father, David Stewart Moneyhon, Jr., and his wife moved for and obtained an order of.appeal, she was the only petitioner and is the sole proper appellant before us in that case.


text:
    EXXON CORPORATION v. Conrad ROBICHAUX, Jr., Rufus B. Naquin and Charles E. Silva, Sr.
    No. 13729.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 10, 1980.
    Rehearing Denied Jan. 26, 1981.
    Francis J. Mooney, Jr., New Orleans, for plaintiff-appellee.
    Jack B. Wise, Thibodaux and A. Bruce Simpson, Lockport, for defendants-appellants.
    Before COVINGTON, CHIASSON and LEAR, JJ.
   LEAR, Judge.

Exxon Corporation (Exxon) filed a petition for declaratory judgment declaring Exxon’s rights under a written lease. Defendants are owners and lessors of certain commercial property located in Slidell, Louisiana. The lease was executed on August 4, 1967, between Humble Oil and Refining Company (now Exxon Corporation) and the original lessor from whom defendants acquired title. The primary term of the lease was twenty-two (22) years with two five year renewal options and covered six lots located in the West Expressway Shopping Center. Exxon sought to sublease a portion of the property which sublease was objected to by defendants.

Defendants answered plaintiff’s petition and reconvened to have the lease cancelled, or in the alternative, to reform the lease.

The issues created, therefore, are whether or not plaintiff’s right to sublease is restricted by the terms of the lease, whether the lease should be reformed, whether defendants are entitled to share in sublease rentals and whether the lease should be cancelled, and if so, damages awarded to defendants for lessee’s alleged default in the lease.

The trial court found that plaintiff has the unrestricted right to sublease as stated in paragraph (7) of the lease. (At the time the lease was executed, shopping center restrictions affected use of lots within the center; however, these restrictions were later declared null and void by the court.)

The court went on to say, “The very language of paragraph (22) is evidence that the parties contemplated the lifting of the restrictions on the . .. lots.”

The trial judge further found that the parties intended free and flexible use of the premises by the plaintiff and had lessors intended to restrict use of the property a statement to that effect should have been incorporated in the lease. LSA-C.C. 2710 subd. 1 provides, “The lessee is bound: (1) To enjoy the thing leased as a good administrator, according to the use for which it was intended by the lease.”

In determining the “intended use” under the lease the courts may, in absence of express lease provision, look to surrounding circumstances, such as the nature, situation and previous use of the property. Where the lease is silent and surrounding circumstances are ambiguous concerning intended use of leased premises, the ambiguity must be resolved in favor of lessee. Tullier v. Tanson Enterprises, Inc., 367 So.2d 773 (La.1979).

The court found no requirement in the lease compelling plaintiff to use all of the leased premises in its operation of a service station and further dismissed the reconven-tional demand.

A review of the lease (with its amendments), and the record, fails to show any restrictions on plaintiff's free and flexible use of the premises and no basis for reforming the lease. There appears to have been no error or mistake by the parties in execution of the lease. LSA-C.C. 2670 states the three essential requirements for a contract of lease — the thing, the price and the consent. All three are present in this lease and defendants have no cause of action for unjust enrichment. Miami Truck & Motor Leasing Company, et al v. Dairyman, Inc., et al, 263 So.2d 110, (La.App. 1st Cir. 1972).

One final issue raised by defendants concerns alleged failure to use the premises as a good administrator in that weeds, bushes and trees were permitted to grow on a portion of the leased premises, that this area was used as a dumping group and that an illegal fireworks stand was allowed on the premises. As stated by the trial court, “There is no evidence that plaintiff was put in default by registered mail as called for in the lease.” Further, defendants continued to accept rental payments and took no steps to cancel the lease until plaintiff filed suit for declaratory judgment. We find no merit in this contention.

For the above reasons, the judgment of the trial court is affirmed at appellants’ costs.

AFFIRMED.

      . “(7) Lessee may sublet all or any part of the premises but no such subletting shall release the Lessee from its obligations hereunder.”

      . “(22) Lessee’s use of the leased premises shall be subject to the restrictive covenants annexed to the deeds dated August 2, 1962, from G. Brian Corporation, registered in COB 328, Folio 462, recorded in MOB 193, Folio 512, registered in COB 328, Folio 467, recorded in MOB 193, Folio 517, and registered in COB 328, Folio 477, recorded in MOB 193, Folio 527, registered in COB 328, Folio 472, recorded in MOB 193, Folio 522, of the Clerk’s Office of St. Tammany Parish, Louisiana, to the extent such restrictions remain in effect on the lots in West Expressway Shopping Center. It is agreed between Lessor and Lessee that such restrictions will not prevent Lessee from constructing, maintaining and operating on Lots 18-B and 17-B, or either of them, a modular illuminated or non-illuminated sign, with the necessary poles and wiring for the purpose of advertising the business or businesses operated on Lots 17-A and 18-A, provided said sign conforms to the prevailing requirements of the municipal, state and federal laws, ordinances, statutes and regulations; but provided further that should the abovementioned restrictions be interpreted in a final decision by a court of last resort that has competent jurisdiction, so as to prevent Lessee from constructing, maintaining and using such a sign on Lots 17-B and 18-B, Lessee may, at Lessee’s option, cancel and terminate this lease upon giving Lessor thirty (30) days written notice thereof.”

      . LSA-C.C. 1964:
      “Equity, usage and law supply such incidents only as the parties may reasonably be supposed to have been silent upon from a knowledge that they would be supplied from one of these sources.”

      . “(8) Anything herein contained to the contrary notwithstanding, Lessor agrees not to exercise any landlord’s remedies against Lessee by reason of any default unless and until Lessor shall have given to Lessee written notice by registered mail of the default and unless Lessee shall have failed to remedy such default within a period of thirty (30) days from the giving of such notice.”


text:
    John M. SPAIN v. LOUISIANA HIGH SCHOOL ATHLETIC ASSOCIATION.
    No. 13730.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 10, 1980.

      W. Luther Wilson, Baton Rouge, for plaintiff-appellant, John M. Spain.
    Charles M. Hughes, R. Bradley Lewis, Bogalusa, for defendant-appellee, Louisiana High School Athletic Association.
    Before COVINGTON, CHIASSON and LEAR, JJ.
   COVINGTON, Judge.

This appeal was taken by John M. Spain, as an individual member of the public and as a news media person, from a judgment of the District Court denying the plaintiff’s request for preliminary and permanent injunctions to keep the Louisiana High School Athletic Association from holding meetings other than those pursuant to the “Open Meetings” Law of this State.

This injunctive relief application stems from a meeting of the defendant Association held on February 13, 1980, to consider what actions to take in connection with a fray involving the students of Lee High School and McKinley High School during a basketball game the week before at Lee High School. The plaintiff, the News Director for Louisiana Television Broadcasting Corporation, as well as members of the public, was excluded from the meeting. Spain had sought to obtain a temporary restraining order so that he could give news media coverage to the meeting; the restraining order was not granted but he was assigned a hearing on the matter of a preliminary injunction. The Association having completed its meeting before the hearing could be held, Spain amended his petition to seek permanent, as well as preliminary, injunctive relief based on the grounds that the LHSAA intended to hold future meetings as “closed meetings” in violation of the “Open Meetings” Law. After a hearing, the lower court found that the LHSAA was not a “public body” and was thus not subject to the “Open Meetings” Law. Accordingly, the trial court denied Spain the requested injunctive relief, rendering the following “Written Reasons for Judgment”:

“Findings of fact
“1. The Louisiana High School Association is a private, unincorporated voluntary association.
“2. It neither receives nor disburses tax money.
“3. It does not perform or administer any governmental functions.
“4. It is not a creature of the Louisiana Department of Education.
“5. It does not exist by virtue of any act of the Louisiana Legislature.
“6. It is not a ‘public body’ nor does it conduct any public business within the definitions of the Louisiana Constitution and the statutes.
“7. The Louisiana Legislature did not intend that La.R.S. 42:1 et seq. apply to the Louisiana High School Athletic Association.
“Conclusion of Law
“The meetings of the Louisiana High School Athletic Association are not subject to the requirements of the ‘Open Meetings Law.’
“For the above reasons, plaintiff’s case is dismissed at his costs.”

The appellant designates two specifications of error: first, that the lower court erred in concluding that the Association was not a “public body” within the meaning of the “Open Meetings” Law; second, that the court below erred in concluding that the Association was not subject to the requirements of the “Open Meetings” Law. It is suggested by the appellant that the single issue before this Court is whether the Association is a “public body” within the meaning of LSA-R.S. 42:4.2(2) so as to be subject to the “Open Meetings” Law.

The appellee contends that the “Open Meetings” Law does not apply to the LHSAA because the provisions of LSA-R.S. 42:1 et seq., make it clear that it was not the intent of the legislature to apply these statutes to the LHSAA or any other similarly-situated private organization. Rather, it was the legislative intent that the “Open Meetings” Law apply only to public bodies or entities created by the Constitution and laws of the State of Louisiana.

The general rule in this State is that courts will not interfere with the internal affairs of a private voluntary association where its affairs are conducted fairly and honestly. Sanders v. Louisiana High School Athletic Association, 242 So.2d 19 (La.App. 3 Cir. 1970); Marino v. Waters, 220 So.2d 802 (La.App. 1 Cir. 1969). The Courts have specifically applied this rule to the defendant in the instant case, the LHSAA. See Watkins v. Louisiana High School Athletic Association, 301 So.2d 695 (La.App. 3 Cir. 1975); Sanders v. Louisiana High School Athletic Association, supra.

The LHSAA is a private, unincorporated, voluntary organization of some 450 high schools, represented by the member-school principals. About 80% of its members are public schools. In fact, almost all of the public schools in this State which engage in interscholastic athletic sports and activities are members of the Association. The principals, coaches and students of the schools are not members as such, there being no individual memberships. The object of the LHSAA is to handle the interscholastic athletic activities of its member schools.

However, the case at bar is not between the LHSAA and a member school, but is between the LHSAA and a member of the public. It is a grievance presented by one who may be adversely affected by decisions or actions of an association of which he is not a member. While there was a question of a disciplinary rule involved in the instant case, the suit does not involve solely a question of internal affairs of a voluntary association; it involves primarily the question of the applicability of a “freedom of information” or a “right to know” law to a particular voluntary association. Therefore, the LHSAA’s activities are subject to court scrutiny when a litigant contends that the LHSAA is violating state law requiring the holding of open, public meetings. See Dumez v. Louisiana High School Athletic Association, 334 So.2d 494 (La.App. 1 Cir. 1976), writ refused, 337 So.2d 225 (La.1976); Ghabert v. Louisiana High School Athletic Association, 323 So.2d 774 (La.1975).

We now turn to the real issue in the instant case. The essence of the appellant’s case is that the LHSAA is a public body and, hence, is subject to the “Open Meetings” Law.

The term “public body” is defined in the statute, LSA-R.S. 42:4.2(2), as follows:

“ ‘Public body’ means village, town, and city governing authorities; parish governing authorities; school boards, and boards of levee and port commissioners; boards of publicly operated utilities; planning, zoning, and airport commissions; and any other state, parish, municipal, or special district boards, commissions, or authorities, and those of any political subdivision thereof, where such body possesses policy making, advisory, or administrative functions, including any committee or subcommittee of any of these bodies enumerated in this Paragraph. ‘Public body’ shall not include the legislature.”

The LHSAA does not specifically fit any of the classifications set out in the definitions provision of the statute. It is not a village, town, or city governing authority; it is not a police jury. It is not a school board; it is not a board of levee or port commission, or the board of a publicly-operated utility. It is also not a planning, zoning or airport commission. The question then becomes, is it an “authority” to which policy making, advisory or administrative functions have been delegated by one of the entities listed in the definitions provision of the statute, as the appellant contends? We think not.

When the definition of “public body” is read with the provisions of LSA-R.S. 42:1 and LSA-R.S. 42:4.1 it becomes clear that the term “public body” means an entity which was established by the state constitution, legislative acts, or acts or ordinances of some political subdivision, not an entity such as the LHSAA. LSA-R.S. 42:1 defines “public office” as follows:

“As used in this title, the term ‘public office’ means any state, district, parish or municipal office, elective or appointive, or any position as member on a board or commission, elective or appointive, when the office or position is established by the constitution or laws of this state . . . . ”

Implicit in the definition of “public body” is the meaning that it embraces only governmental entities, not entities in the private sector of our society. This view is consistent with the constitutional provision found in 1974 La.Const. Art. 12 § 3 as follows:

“No person shall be denied the right to observe the deliberations of public bodies and examine public documents, except in cases established by law.” (Emphasis added.)

LSA-R.S. 42:4.1 declares the intention of the legislature in passing the “Open Meetings” Law, as follows:

“It is essential to the maintenance of a democratic society that public business be performed in an open and public manner and that the citizens be advised of and aware of the performance of public officials and the deliberations and decisions that go into the making of public policy. Toward this end the provisions of R.S. 42:4.1 through R.S. 42:10 shall be construed liberally.”

Perhaps the “Open Meetings” Law can be put in proper perspective by reference to the language of the concurring opinion of Mr. Justice Summers of the Louisiana Supreme Court in Reeves v. Orleans Parish School Board, 281 So.2d 719, 723 (La.1973), as follows:

“The public at common law had no right to attend meetings of governmental bodies. In fact, Parliament from earliest times conducted its sessions in secrecy. The iniquitous Star Chamber proceeding had its role in history. It came to be realized in keeping with logic, reason and common sense that full publicity of proceedings was an important influence in promoting proper conduct of public officials. In time the public meeting has come to be recognized as a fundamental aspect of effective government and an informed electorate.
“In an attempt to require governmental bodies to conduct their affairs openly, public meeting statutes have been enacted. The passage of open meeting statutes is one of the achievements of a broader campaign, spearheaded primarily by the American press, to promote freedom of information. The freedom-of-information campaign is based on the argument that public knowledge of the considerations upon which governmental action is based, as well as knowledge of the final action taken, is an essential component of the American process.” (Footnotes omitted)

In enacting the “Open Meetings” Law the Legislature was concerned with citizens (the public) being advised and aware of the performance or actions of public officials and their deliberations and decisions concerning “public policy.” Public officials are those persons defined in LSA-R.S. 42:1 as holding public office, which means an office or position established by the Constitution or laws of this State. When these two provisions are read together with the definition of public body contained in LSA-R.S. 42:4.2(2), it is clear that the Legislature intended the “Open Meetings” Law to apply only to those entities which were established by the Constitution and laws of this State. While it is true, that LSA-R.S. 42:4.1 states that the law should be construed liberally, the law can be “construed liberally” only insofar as it applies to the entities within its intended coverage. There was never any intention for the Act to apply to a voluntary association, such as the LHSAA.

Appellants rely on Seghers v. Community Advancement, Inc., 357 So.2d 626 (La.App. 1 Cir. 1978), to show that the LHSAA is a “public body.” The Seghers case held that the entity involved, Community Advancement, Inc., was a “public body” within the meaning of the “Open Meetings” Law. The defendant had contended the “Open Meetings Act” did not apply to it because it was a private non-profit corporation. The evidence established that Community Advancement, Inc., had a non-profit corporation charter from the State of Louisiana; however, the Court looked not to the legal status as defined in the non-profit corporation charter, but to who created the corporation and why it was created. The particular corporation had been organized for the purpose of administering a governmental anti-poverty program. It was supported almost entirely from tax funds appropriated by either the federal, state or local government. It had been “sponsored” by the East Baton Rouge Council, and had been designated by those governing authorities as the agency to administer the poverty program, a governmental function.

The facts are different in the present case. The LHSAA is not established by the Constitution or the laws of the State or of any parish or municipality. It is not and was not sponsored by any parish or city council, or by the Department of Education, or any school board. It promotes and regulates a special concern of its members, i. e., interscholastic athletic competition. The fact that the LHSAA provides this non-governmental service to public high schools (along with providing the same service to private high schools) does not make it a “public body,” any more than any private corporation becomes a public body merely by providing a non-governmental service to a public high school.

The factors which the Court in Seghers considered made the private nonprofit corporation a “public body or authority within the intendment of the statute” were (1) the corporation was organized to perform and has performed a governmental function; (2) the corporation was supported almost exclusively by tax derived funds; and (3) the corporation was able to and did set policy in both the administration and distribution of tax derived funds. None of those factors are present in the instant case. The LHSAA was not organized to perform and does not perform any governmental function; it promotes and regulates inter-school sports competitions on the high school level in this State. The LHSAA does not receive or disburse tax derived funds; the record supports the trial judge’s findings that the LHSAA does not receive or disburse tax derived funds. The LHSAA is supported by “dues”, and the dues paid by the member schools come from athletic funds derived from the gate receipts of the various athletic contests. The Association receives no money derived from taxes of any kind. The Association sets no policy with regard to the administration or disbursement of tax derived funds and no policy with regard to any governmental function.

In view of our conclusion set out above that the Louisiana High School Athletic Association is not a “public body” within the intendment of LSA-R.S. 42:4.2(2) and is not subject to the “Open Meetings” Law, we are not called upon to determine the constitutionality of the Act.

For the reasons assigned, the judgment of the District Court is affirmed at the appellant’s costs.

AFFIRMED.


text:
    Larry McEACHERN v. Dewey J. RABORN and Mike D. Nolan.
    No. 13731.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 10, 1980.
    G. Allen Walsh, Baton Rouge, for plaintiff-appellant, Larry McEachern.
    Robert L. Raborn, Baton Rouge, for defendants-appellees, Dewey J. Raborn and Mike D. Nolan.
    Before COVINGTON, CHIASSON and LEAR, JJ.
   CHIASSON, Judge.

Plaintiff-appellant, Larry McEachern, de-volutively appeals from the trial court’s judgment sustaining the exception of prescription filed by defendant-appellee, Mike D. Nolan.

This matter arises from an automobile accident which occurred on November 16, 1977, in Baker, Louisiana. The plaintiff’s daughter, Terri McEachern, and the defendant, Mike D. Nolan, were involved in an intersectional collision. The McEachern vehicle suffered damages which plaintiff is seeking to recover.

Suit was filed by the plaintiff on November 30, 1979, naming both Mike D. Nolan and Dewey Raborn as defendants. Defendant, Nolan, filed an exception of prescription which was sustained by the trial court.

Plaintiff’s argument is based on the contention that a first suit against Dewey Ra-born interrupted the one year prescriptive period against both Raborn and Nolan. Civil Code Article 3536 details the prescriptive period for actions resulting from offenses and quasi offenses:

“Art. 3536. The following actions are also prescribed by one year:
That for injurious words, whether verbal or written, and that for damages caused by animals, or resulting from offenses or quasi offenses.”
* * * * 5k sfc

Under La.R.S. 9:5801, filing suit for an offense or quasi offense will interrupt the running of prescription.

La.R.S. 9:5801 provides in part, as follows:

“All prescriptions affecting the cause of action therein sued upon are interrupted as to all defendants, including minors or interdicts, by the commencement of a civil action in a court of competent jurisdiction and in the proper venue. ... ”

Notwithstanding plaintiff’s argument, no single bit of evidence was introduced by the plaintiff to show that the prescriptive period had been interrupted. Following a long line of First Circuit Court of Appeal cases, the Fourth Circuit Court of Appeal in Yarbrough v. Louisiana Cement Co., Inc., 370 So.2d 602, 603 (La.App. 4th Cir. 1979), places the burden of proof on the plaintiff when, from the face of the petition, plaintiff’s action has prescribed.

“... When plaintiff’s cause of action has prescribed on the face of his own petition, the plaintiff bears the burden of proof at the trial of the exception to establish facts which would have the effect of interrupting or avoiding prescription. Marcel v. Hospital Corp., 322 So.2d 302 (La. App. 1st Cir. 1975); Lasseigne v. Earl K. Long Hospital, 316 So.2d 761 (La.App. 1st Cir. 1975).”
See also Hunter v. Sisters of Charity of Incarnate Word, 236 So.2d 565 (La.App. 1st Cir. 1970), and Lucas v. Commercial Union Insurance Company, 198 So.2d 560 (La.App. 1st Cir. 1967).

The petition recites that the accident occurred on November 16, 1978, and this suit was filed on November 30, 1979. From the face of the petition then, the present action has prescribed. La.C.C. art. 3536. Plaintiff must now come forward with facts to prove that the prescriptive period has been interrupted allowing him to proceed with his suit.

No transcript on the trial of the exception is before us, nor is there anything of record filed by the plaintiff. Though a first suit is mentioned in brief, the first suit is not part of the record. The minute entry for the date that the exception was tried merely mentions that evidence was introduced without identifying that evidence. We have no way of ascertaining exactly what was introduced into evidence, except to look at the record itself. The only things filed in evidence according to the record are the birth certificate of Mike D. Nolan (D-1), an affidavit by Eiko Y. Raborn (D-2), and an affidavit by Dewey J. Raborn (D-3). These documents establish that Mike Nolan was of full age of majority at the time of the accident and that the accident occurred in 1977, rather than in 1978 as alleged in plaintiff’s petition. We hold, therefore, that the plaintiff has failed to carry his burden of proving that the one year prescriptive period had been interrupted. Yarbrough, supra.

For these reasons, the judgment of the trial court sustaining the peremptory exception of prescription as to defendant, Mike Nolan, is affirmed. Appellant is cast for all costs in this matter.

AFFIRMED.


text:
    Terry T. HILLIARD v. GREAT AMERICAN INSURANCE COMPANY et al.
    No. 13733.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 10, 1980.
    Ralph W. Brewer, Baton Rouge, for plaintiff-appellant, Terry T. Hilliard.
    James E. Moore, Baton Rouge, for defendants-appellees, Great American Ins. Co., Mary E. Jones.
    Before COVINGTON, CHIASSON and LEAR, JJ.
   LEAR, Judge.

This appeal results from the granting of summary judgment.

Plaintiff was involved in a traffic accident with defendant, Mary E. Jones (Jones), on October 25,1977, in Baton Rouge, Louisiana, and alleged in his petition that Jones was insured by an automobile liability policy issued by Great American Insurance Company (Great American). Great American denied coverage based upon the following facts:

On April 1, 1977, Great American issued its policy to Jones for a period from April 1, 1977, to October 1, 1977, at her address in South Carolina. On August 30, 1977, Great American mailed to Jones an offer of renewal at her policy address. No premium was received from Jones by October 1,1977, so a new notice was sent on October 11, 1977, reflecting that the policy had expired but containing a new offer for renewal if the premium was paid by October 26, 1977. This was also sent to her policy address in South Carolina. No premium was received and on November 8, 1977, notice of termination as of October 1, 1977, was sent to Jones at the same address.

On a motion for summary judgment the trial court held that the policy had terminated, noting that timely premium notices had been mailed to Jones who had failed to pay said premium. We agree.

Plaintiff alleges error by the trial court in granting summary judgment on the basis that a genuine issue of material fact existed. This material fact concerned whether or not South Carolina law requires actual notice of cancellation. Plaintiff further argues that Great American admits that, at the time of the accident, Jones was a resident of East Baton Rouge Parish, although all premium notices were sent to the South Carolina policy address. This “admission” is contained in Great American’s answer to plaintiff’s petition wherein plaintiff alleged that Jones was a resident of East Baton Rouge Parish. Plaintiff, therefore, argues that whether Great American knew of the change of address by Jones raises a genuine issue of material fact, citing Red Stick Confectionaries, Inc. v. Commercial Union In surance Co., 365 So.2d 580 (La.App. 1st Cir. 1978), writ denied 366 So.2d 574 (La.1979). In the instant case, the notices sent by Great American were sent to the address shown on the policy and expressed a willingness to renew. When no reply was received from Jones, the policy expired under its own terms. It should further be noted that plaintiff failed to file any interrogatories or affidavits from either Great American or Jones to attempt to show a substantial dispute of material fact.

We find no error in the granting of summary judgment; therefore, the ruling of the trial court is affirmed, appellant to pay all costs.

AFFIRMED.


text:
    STATE of Louisiana In the Interest of Todd QUATREVINGT.
    No. 13735.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 10, 1980.
    William C. Dupont of Dupont, Dupont & Dupont, Plaquemine, for plaintiff-appellant Todd Quatrevingt.
    M. Kay Guidry, Asst. Dist. Atty., Plaque-mine, for State.
    Before COVINGTON, CHIASSON and LEAR, JJ.
   CHIASSON, Judge.

This is an appeal by Todd Quatrevingt from a juvenile proceeding adjudging him a juvenile delinquent for violation of La.R.S. 14:89, crime against nature.

At the time of the alleged incident, Todd was a sixteen year old male and the two victims were boys, ages six and eight. The incident allegedly occurred on January 28, 1980 about six o’clock in the evening in a field behind the home of one of the victims.

The defendant contends that the State failed to prove the alleged violation beyond a reasonable doubt.

La.R.S. 14:89 reads in part, as follows: “Crime against nature is the unnatural carnal copulation by a human being with another of the same sex or opposite sex or * * *. Emission is not necessary; and, when committed by a human being with another, the use of the genital organ of one of the offenders of whatever sex is sufficient to constitute the crime.”

This court has held “. . . that the burden of proving the charges against a juvenile is no less severe than that of proving charges against an adult. Every element of the crime charged must be proved beyond a reasonable doubt.” In Re State in Interest of Hampton, 257 So.2d 459 (La.App. 1st Cir. 1972). See also La.C.J.P. art. 73.

Testifying at the adjudication were the two victims who stated with sufficient detail the events that took place that evening. In addition, the sister of one of the victims testified as to the conduct of the defendant in exposing himself to the young boys and the acts that followed. It was stipulated that the other little girl who was present when the incident occurred would testify the same as the girl who did testify.

From their testimony, considering the ages of the victims and of the witnesses, the State met its burden of proving beyond a reasonable doubt every essential element of the crime. The defendant was properly identified and the testimony established that there was oral-genital copulation proscribed by the statute. Defendant’s contention that the testimony fails to show any penetration whatsoever is without merit. Further, our Supreme Court has held that “ ‘any actual joining or connection of a genital organ of one person and the mouth of another’ constitutes the crime. State v. Young, 249 La. 1053, 193 So.2d 243, 245 (1966).” State v. Phillips, 365 So.2d 1304, 1308 (La.1978).

For these reasons, the adjudication of Todd Quatrevingt as a delinquent is affirmed.

AFFIRMED.


text:
    Jim W. MOBLEY v. Lindle D. MOBLEY.
    No. 14020.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 10, 1980.
    Guy A. Módica, Baton Rouge, for Lindle Mobley.
    L. D. Sledge, Baton Rouge, for Jim W. Mobley.
    Before COVINGTON, CHIASSON and LEAR, JJ.
   CHIASSON, Judge.

Writs of Mandamus, Prohibition and Cer-tiorari and a Stay Order were issued herein to enable this court to review, without the delays generally associated with an appeal, a change of custody order rendered by the trial court.

Relatrix, Lindle D. Mobley, obtained a legal separation from her husband, Jim W. Mobley, respondent, on October 12, 1979. This judgment also awarded to relatrix the permanent care, custody and control of the two minor daughters born of the marriage. On July 22,1980, respondent filed a petition for divorce on the ground of adultery and for custody of the two minor children. The trial court ordered that the custody of the children be given to their father. We granted the writs and the stay order to review that ruling.

The record reveals that Mrs. Mobley is pregnant with another man’s child. The father of the unborn child is a married man still living with his wife. The two daughters, ages 14 and 9 years, have seen their mother sit on her paramour’s lap, embrace and kiss him.

Mrs. Mobley’s past conduct consisting of her religious activities which interfered with the performance of her motherly duties, of her unexplained misuse of credit cards, and of her relationship with another married man, were all reasons given by the trial judge for his finding that the continued custody by Mrs. Mobley would be detrimental to the welfare of the young girls.

The two specifications of error raised by the relatrix involve essentially the same question, whether the trial court properly applied the ruling of a recent Supreme Court case on rehearing, Cleeton v. Cleeton, 383 So.2d 1231 (La.1979).

The iCourt in the Cleeton case referred to a showing of a detrimental effect on the children from the mother’s conduct before a change of custody should be granted. Therein the Supreme Court stated:

“To change the custody of these girls would punish their mother for past behavior when there is no proof of a detrimental effect on her daughters. An award of custody is not a tool to regulate human behavior. The only object is the best interest of the child. LSA-C.C. art. 157....” (Cleeton, supra, page 1236).

Another recent Supreme Court case sheds light on the conduct displayed by Mrs. Mob-ley in the instant suit. In Schexnayder v. Schexnayder, 371 So.2d 769 (La.1979), the Court stated:

“We acknowledge that the evidence indicates that the respondent did not engage in any sexual activity with her paramour in front of the children. While the existence of such conduct would certainly be relevant in our determination here, the lack of its occurrence does not end our inquiry. We believe that the flagrant disregard for established moral principles demonstrated by the respondent, her insensitivity to any embarrassment or injuries her conduct might inflict on her family, and her willingness to abandon motherly and wifely responsibilities in order to pursue extramarital sexual activities all combine to demonstrate that the respondent is ‘morally unfit or otherwise unsuitable’ to have custody of the children.”

In both cases, the effect on the “family” or the “children” of the mother’s conduct played a substantial role in the court’s ruling. This was explained in the Schexnayder decision at page 773:

“The purpose of the above jurispruden-tially established rule is not to punish the mother but to protect the children. We recognize that in many cases infrequent indiscretions may be born out of human frailty rather than an absence of moral character. In such cases, the adulterous affair will not mitigate against a person’s claim for custody. However, in cases where a person consistently and over a period of time engages in a course of open and public adultery in defiance of generally accepted moral principles in total disregard of any embarrassment and injuries which might be sustained by the children of the marriage, past misconduct forms an important consideration in determining the present suitability of a parent. * * * We believe this because common knowledge and experience teaches that a child learns by example, especially from his parents, Beck v. Beck, supra, [La.App., 341 So.2d 580] and that it is a parent’s duty to demonstrate to his or her children qualities of good moral character. Consequently, parents fail in that duty when they openly and notoriously display an utter disregard for moral and social values in the area of sexual fidelity toward each other and thus forfeit the moral leadership owed their children.”

The sexual conduct in the instant litigation may not be as flagrant as it was in the Schexnayder case, but nonetheless, Mrs. Mobley is six months pregnant with another man’s child who is still living with his wife. The sexual activities of Mrs. Mobley began after her separation from her husband and continued until she discovered her pregnancy. However, she still continues to see the other man and he still visits in her home. These facts, combined with the obsession of Mrs. Mobley that everything is God’s will, are a direct contradiction and are extremely confusing to girls, ages 14 and 9, who are developing their own moral and social values.

Mrs. Mobley told her daughters about her pregnancy, admitted that what she had done is wrong, but that it was God’s will. She contends the girls have now accepted the fact of her pregnancy, and the girls are doing well in school.

The trial judge was convinced by the testimony and viewing the parties that the overall conduct of Mrs. Mobley will have a detrimental effect on the young girls. As stated in his reasons for judgment:

“Mrs. Mobley is now six months pregnant and explains to the court that she told her daughters that what she had done was wrong and contrary to her teaching but that this would help them learn about motherhood and womanhood. * * * The mother, contrarily, appeared to this court to be psychotic, influenced by religious fervor and inclined to blame everything on God’s will including some five to six thousand dollars worth of credit card expenditures which she refused to explain to her husband, always stating that the expenses were God’s will. She blames her pregnancy on God’s will. In the judgment of this court the pregnancy of a thirty-seven year old wife by a fifty-six year old man not her husband is not necessarily of God’s will and not necessarily the best way for two young girls to learn about motherhood and- sexuality.”

From the record the adultery on the part of Mrs. Mobley was readily admitted by her as well as the other adultering party, but never in front of the children. It was stated by both parties that they have contemplated marriage even though he is still married.

In addition, the record reflects that Mrs. Mobley neglected her motherly responsibilities in not looking after the children at times and in not performing the chores around the family home.

From all these factors, we agree with the trial court that the best interest of the children requires that their custody be given to the father and affirm its change of custody order.

The trial court found that the respondent, Mr. Mobley, is ably suited to care for the children at this time. He is a senior executive with South Central Bell and he has a very suitable home in New Iberia. He has been a former deacon in his church in Baton Rouge and has made elaborate plans for the care and custody of his daughters.

For the reasons assigned the writs are hereby recalled and the stay order is vacated. All costs are to be paid by relatrix.

WRITS RECALLED, STAY ORDER VACATED.


author: ELLIS, Judge:

text:
    Louis H. FAXON v. ALBERT H. HART CORPORATION et al.
    No. 13633.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 10, 1980.
    Rehearing Denied Jan. 26, 1981.

      Allen R. Boudreaux, Roland C. Kizer, Jr., Baton Rouge, for plaintiff-appellee Louis H. Faxon.
    John H. Fetzer, III, Baton Rouge, for defendant-appellant Albert H. Hart Corp.
    M. Aubrey McCleary, Baton Rouge, for defendant-appellee The Home Builders and Apartment Association of Greater Baton Rouge.
    James E. Moore, Baton Rouge, for third party-appellee National Union Fire Ins. Co.
    Before ELLIS, COLE and WATKINS, JJ.
   ELLIS, Judge:

Louis H. Faxon, an architect, was retained to draw the plans for a “showcase home” to be built by Albert H. Hart Corporation. Much of the materials and labor were to be furnished free or at cost, so that the home was to be less expensive to build than others similar thereto. Ten per cent of the sales price was to go to the Home Builders and Apartment Association of Greater Baton Rouge.

Mr. Faxon became interested in purchasing the home, and on July 22, 1976, entered into an agreement with Home Builders and William A. Hart, president of the Hart Corporation, who held title as agent for Home Builders to the lot on which the home was to be constructed, whereby Mr. Faxon was to purchase the home for the actual cost of construction plus ten per cent. At that time, it was anticipated by all parties that the total cost of the project, including the cost of the lot, would not be in excess of $150,000.00. The agreement also provided that Hart would be “reimbursed by the Home Builders Association for every cost, direct or indirect, incurred or sustained in connection with this work, excepting only the value of the agent’s own individual services, and his general and office overhead.” In a separate letter, dated May 15, 1976, Mr. Faxon agreed to waive his architectural fee “in the event I should elect to purchase the referenced property.”

When the house was completed, the total cost of the project was found to be $218,-500.00. Mr. Faxon was unable to purchase the property at that price, and backed out of the deal, with the consent of the other parties.

Later the property was sold to a third party for a recited consideration of $250,-000.00. Shortly thereafter, Mr. Faxon filed his suit against Albert H. Hart Corporation for the recovery of his architect’s fee. Later the petition was amended to name Home Builders as a party defendant. After trial on the merits, judgment was rendered in favor of plaintiff and against the Hart Corporation for a portion of the fee, and defendant Albert H. Hart Corporation has appealed.

Mr. Faxon’s architectural contract recited a fee of 10 per cent of the construction cost. In the final accounting, the cost was found to be $178,000.00, and Mr. Faxon sued for a fee of $17,800.00.

Mr. Faxon testified that when he told Mr. Hart that he was not able to buy the house, he also told Mr. Hart that an architectural fee was due on the house, and “when it hits the market, . .. salvage what you can for an architect’s fee for me.” He denied that he said that he was waiving his fee.

Mr. Hart testified that in the above conversation, Mr. Faxon told him that “if I would let him off the deal he said he would forget the architectural fee. And he told me — he further stated when you do sell it, if you do sell it for more or make some money off of it, save something for me for a fee.”

During the trial it was shown that the real selling price of the house was $230,-000.00, and that after paying all costs, including the $178,000.00 cost of construction, there was $712.24 left over for the Hart Corporation. It was further shown that an $11,203.45 item for cabinets was charged twice in the cost ledger, and that the cost of construction should be reduced by that amount.

The trial judge found that the agreement between the parties was that Mr. Faxon would get a fee only if there was money left over after all other costs were paid. He further found that there was $11,915.69 left over, and gave judgment in favor of Mr. Faxon and against the Hart Corporation for that amount.

It seems clear that, when Mr. Faxon elected to purchase the property, his architect’s fee was waived. However, when the contract to purchase was abrogated by the mutual consent of the parties, the election to purchase was also abrogated, and the parties placed back in the same positions which they occupied prior to the execution of the contract to purchase. Article 1901, Civil Code; Arceneaux v. Adams, 366 So.2d 1025 (La.App. 1st Cir. 1978).

It therefore appears that, unless another contract was entered into, Mr. Faxon was entitled to collect his full fee, since his waiver thereof was part of the original, now abrogated, agreement. However, Mr. Faxon testified that he expected to receive no more than the surplus remaining after all other proper costs of construction and of the lot were paid. The trial judge found that this was, in fact, the agreement between the parties, and did not accept Mr. Hart’s testimony that Mr. Faxon had again waived his fee in consideration of being released from the contract. After a careful review of the testimony, we find no manifest error in this determination.

If there was no agreement reached by the parties after the original contract was rescinded by consent, Mr. Faxon would have been entitled to his entire fee. The trial judge did not accept the evidence that Mr. Faxon had again waived his fee, so that Mr. Faxon’s recovery is limited only by his own judicial confession that he is entitled to no more than the surplus.

The judgment appealed from is therefore affirmed, at appellant’s cost.

AFFIRMED.


author: WATKINS, Judge.

text:
    Charles A. WHITE v. Verlene Mayo Cummins WHITE.
    No. 13646.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 10, 1980.
    Allen R. Boudreaux, Ralph E. Hood, Roland C. Kizer, Jr., Baton Rouge, for plaintiff-appellant, Charles A. White.
    Gerard E. Kiefer, Baton Rouge, for defendant-appellee, Verlene Mayo Cummins White.
    Before ELLIS, COLE and WATKINS, JJ.
   WATKINS, Judge.

This is a rule brought by a former husband to obtain reduction of permanent alimony. Charles A. White and Verlene Mayo Cummins White were divorced in November 1978, and the wife was awarded custody of their infant child, alimony in the amount of $600.00 per month, and child support. From a judgment maintaining the alimony in the stated amount after trial on the rule, the husband appeals.

Plaintiff’s basis for seeking a reduction in the amount of alimony payment is the asserted “change of circumstances” produced by the amendment of LSA-C.C. art. 160 by La. Act No. 72 of 1979 which took effect September 7, 1979, which had the effect of requiring the court to consider the wife’s earning capacity in making an alimony award.

Art. 160 as amended reads as follows:
“When a spouse has not been at fault and has not sufficient means for support, the court may allow that spouse, out of the property and earnings of the other spouse, alimony which shall not exceed one-third of his or her income. Alimony shall not be denied on the ground that one spouse obtained a valid divorce from the other spouse in a court of another state or country which had no jurisdiction over the person of the claimant spouse. In determining the entitlement and amount of alimony after divorce, the court shall consider the income, means, and assets of the spouses; the liquidity of such assets; the financial obligations of the spouses, including their earning capacity; the effect of custody of children of the marriage upon the spouse’s earning capacity; the time necessary for the recipient to acquire appropriate education, training, or employment; the health and age of the parties and their obligations to support or care for dependent children; any other circumstances that the court deems relevant.
“In determining whether the claimant spouse is entitled to alimony, the court shall consider his or her earning capability, in light of all other circumstances.
“This alimony shall be revoked if it becomes unnecessary and terminates if the spouse to whom it has been awarded remarries.”

The primary purpose in amending art. 160 was to permit the husband to obtain alimony from the wife as well as the wife from the husband. However, the amendment had the secondary effect of requiring a court to consider the wife’s earning capacity. Formerly, the wife’s earning capacity could not be considered. Ward v. Ward, 339 So.2d 839 (La.1976).

The husband contends that the 1979 amendment to art. 160 constituted a “change of circumstances”. The trial court appeared in written reasons to disagree, and to believe that a change in circumstances did not include a change in the law. We note that an alimony award is not final, and may be changed upon a showing of “change of circumstances”. Ducote v. Ducote, 339 So.2d 835 (La.1976). We find that it is not necessary to determine whether or not the amendment to art. 160 constituted a change of circumstances within the contemplation of the jurisprudence, as the 1979 legislative enactment creates an additional criterion upon which an alimony award may be made or changed, i. e., a consideration by the court of the wife’s earning capacity, which, under the prior jurisprudence, was of no legal relevance. As the wife’s earning capacity is now one of the factors that the trial court must consider in awarding alimony under art. 160, we hold that the trial court must consider this factor in making alimony awards, or, upon the application of either party, in amending or altering alimony awards.

The wife contends that to so interpret the amendment to art. 160 is to give the amendment an unconstitutional retrospective or retroactive application. The trial court found along the lines of the wife’s contentions, that the amendment applied only “prospectively”, that is, that it could not be the basis, in itself, of amending an existing judgment. We cannot agree. As we stated, an alimony award is never final. We do not interpret the amendment to art. 160 to permit a change in the amount of alimony already due or accruing under prior judgment. We interpret art. 160 simply to permit a modification in the amount of alimony to be paid in the future upon proper showing, effective as of the date of the amending judgment. No vested rights are denied. All that happens is that a fixing of alimony, which is never final, is, under appropriate circumstances and upon proper showing, altered or modified. No true constitutional question is presented.

We do not find, however, that in the present case the circumstances warrant requiring the wife to earn her own living. She has an infant child, who suffers from severe allergies, and requires constant attention. The wife does not have a high school education, and her only training is as a “mixologist”. The income from her occupation would barely be sufficient to hire someone to take care of the child. Under the Codal article as it stood before amendment, and as it now stands, the husband’s earning capacity and financial circumstances must also be considered. Obviously, the prior alimony award was based upon a determination that the husband could afford and should be expected to pay his former wife $600.00 per month as alimony. The husband made no allegation or showing of changed circumstances insofar as his earning capacity and financial circumstances are concerned. There is, then, no factual ground that would call for a change in the amount of alimony awarded.

Accordingly, the judgment of the trial court is affirmed, at appellant’s cost.

AFFIRMED.


text:
    Joe BERRY v. LIVINGSTON ROOFING COMPANY et al.
    No. 13647.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 10, 1980.
    Rehearing Denied Jan. 26, 1981.
    Writ Granted April 6, 1981.
    Joseph A. Gladney, Baton Rouge, for plaintiff-appellant Joe Berry.
    Daniel R. Atkinson, Baton Rouge, for defendants-appellees Livingston Roofing Co. and Aetna Life and Casualty Co.
    Calvin E. Hardin, Baton Rouge, for defendant-appellee DeSoto Cant Strip Supply Co.

      Before ELLIS, COLE and WATKINS, JJ.
   ELLIS, Judge:

Joe Berry was injured on January 24, 1977, when he fell from a truck, breaking both wrists, and striking his face, which injured two teeth and caused some facial lacerations. Mr. Berry also contends that he injured his back in the fall. Since there is no disability resulting from the injuries to his arms and face, the only issue in the case is whether or not the back difficulty resulted from the fall.

After trial on the merits, the trial judge found no causal connection between the fall on January 24,1977, and the disability arising from his back problem. From the judgment dismissing his suit, plaintiff has appealed.

The records revealed that plaintiff was taken to a hospital in Pineville, Louisiana, after his accident. The records of that hospital reveal no back complaints. He was next seen by Dr. Lloyd G. Perez on January 26,1977, and was treated by him thereafter. Dr. Perez testified that Mr. Berry made no complaint of any back difficulty during the course of treatment, which continued until May 10, 1977, when Mr. Berry was discharged to return to work. Plaintiff was next seen by Dr. Thomas Campanella, an orthopedist, on May 12, 1977, and made no complaint of back injury to him.

The insurance adjuster who handled Mr. Berry’s case had no record of any back complaints from Mr. Berry.

On May 13, 1977, plaintiff was seen by Dr. G. Gernon Brown, an orthopedist, with the complaint of back pain. Dr. Brown found that plaintiff had a spondylolisthesis, which was symptomatic. Eventually, he performed a spinal fusion on plaintiff. He was of the opinion that plaintiff was permanently disabled to perform any work which involved any heavy lifting, stooping or bending.

Dr. Brown also testified that a back injury should manifest itself within a reasonable time after an accident, usually only a few days. Plaintiff and his lay witnesses all testified that he began having back trouble three or four days after the accident.

Plaintiff stated that he had told the adjuster about his back trouble in February, 1977, and that the adjuster told him to see Dr. Perez. Plaintiff said that he saw Dr. Perez the next day and that Dr. Perez examined him and told him there was nothing wrong with his back. Neither Dr. Perez nor the adjuster had any recollection or any record of these incidents.

We agree with the trial judge that plaintiff’s failure to complain of back pain to his treating physician, the insurance adjuster and Dr. Campanella, during a period of almost five months after the accident casts grave doubt on his claim that the back pain manifested itself within three or four days of the accident.

The trial judge specifically recognized that a credibility question was involved in the ease. It was his opinion that plaintiff had failed to prove a causal connection between the accident and the disability by a preponderance of the evidence. We have carefully reviewed the record, and note that the testimony of plaintiff and most of the lay witnesses is fraught with minor inconsistencies. We therefore find no manifest error in the trial judge’s conclusion.

The judgment appealed from is therefore affirmed at plaintiff’s cost.

AFFIRMED.


author: COLE, Judge.

text:
    John H. JACKSON v. EAST BATON ROUGE PARISH SCHOOL BOARD.
    No. 13648.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 10, 1980.

      Michael R. Connelly, Baton Rouge, for plaintiff-appellant, John H. Jackson.
    Robert L. Hammonds, Baton Rouge, for defendant-appellee, E.B.R.P. School Bd.
    Before ELLIS, COLE and WATKINS, JJ.
   COLE, Judge.

Appellant John H. Jackson appeals in this suit for back wages which was dismissed when the trial court sustained the appellee’s objection of no cause of action. Because we agree with the trial court that the law affords no remedy to appellant under the allegations of his petition, we affirm.

Appellant was employed as a janitor by the East Baton Rouge Parish School Board. His petition alleges he was dismissed without cause on May 3, 1978. He appealed his discharge to the Director of Maintenance as provided in the grievance procedure of the School Board. After a hearing on the matter the Director recommended appellant be reinstated with full seniority; the Director made no provision for back wages.

Appellant filed suit, claiming he was owed $2,693.68 in back wages plus penalties as provided by La.R.S. 23:632. After the court determined that La.R.S. 23:632 did not apply to the state and its agencies, the appellant amended his petition to claim penalties under 29 U.S.C. § 216.

Appellant contends the dismissal was improper because the peremptory exception was based upon the objection that he had no cause of action for his wrongful discharge. Although his petition specifically speaks of being “discharged without just cause” and of his “unjust termination,” appellant insists he is not litigating the issue of his wrongful discharge. He points out he has already been reinstated and is simply asserting his rights to collect his back wages. While it may be true that appellant did not file suit in order to litigate the issue of the wrongfulness of his discharge, for reasons discussed below, his claim for back wages is necessarily predicated upon proving that the discharge was unjust.

The liability of an employer who dismisses an employee without just cause is set forth in La.Civ.Code art. 2749.

“If, without any serious ground of complaint, a man should send away a laborer whose services he has hired for a certain time, before that time has expired, he shall be bound to pay to such laborer the whole of the salaries which he would have been entitled to receive, had the full term of his services arrived.”

The article. clearly states that only those employees who have been hired for a definite time period are entitled to their back wages. To the contrary, employees hired without a fixed term are subject to dismissal by their employer at any time, for any reason, and the employer does not incur liability for the discharge. Jackson v. East Baton Rouge Parish Indigent Defender’s Board, 353 So.2d 344 (La.App. 1st Cir. 1977), writ denied 1978; Copeland v. Gordon Jewelry Corp., 288 So.2d 404 (La.App. 4th Cir. 1974), writ denied 1974. Therefore, there is no “wrongful discharge” when an employee hired without a fixed term is fired. Without a wrongful discharge there can be no claim for past wages. For this reason it is entirely appropriate that appellee’s peremptory exception was addressed to the issue of appellant’s wrongful discharge vel non.

The source of this principle is La.Civ.Code art. 2747 which reads as follows:

“A man is at liberty to dismiss a hired servant attached to his person or family, without assigning any reason for so doing. The servant is also free to depart without assigning any cause.”

This article has been interpreted by the courts as dealing with employer-employee relationships. United Credit Co. v. Croswell Co., 219 La. 993, 54 So.2d 425 (1951); Manning v. Shreveport Transit Co., 130 So.2d 497 (La.App. 2d Cir. 1961).

The peremptory exception raising the objection of no cause of action is sustained only where the law affords no remedy to plaintiff under the allegations of his petition. Bamber Contractors, Inc. v. Henderson Brothers, Inc., 345 So.2d 1212 (La. App. 1st Cir. 1977). Because of La.Civ.Code art. 2747 and the applicable jurisprudence, there is no cause of action for a wrongful discharge nor for a claim of back wages unless the petition clearly states that the plaintiff was hired for a fixed period of time and was then discharged without just cause. Appellant’s petition simply alleges that he was “unjustly fired.” This statement is a mere conclusion and appellant gives no other facts to substantiate that the firing was indeed unjust. Clearly, appellant’s petition does not contain enough information to show that he is entitled to any remedy under the law.

For the foregoing reasons, the judgment of the trial court is affirmed. Appellant is to pay all costs.

AFFIRMED.


text:
    Lewis MOHR v. Jacqueline JENKINS et al.
    No. 13649.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 10, 1980.
    Rehearing Denied Jan. 26, 1981.
    Arthur Cobb, Baton Rouge, for plaintiff-appellant Lewis Mohr.

      Frank W. Middleton, Jr., Baton Rouge, for defendants-appellees Jacqueline Jenkins and Belleau, McCord, Patin and Ostrowe, Inc.
    Before ELLIS, COLE and WATKINS, JJ.
   WATKINS, Judge.

Lewis Mohr sued Jacqueline Jenkins, a nurse anesthetist, and Belleau, McCord, Pa-tin & Ostrowe, the medical corporation by which Jenkins is employed, for physical complications, phlebitis and thrombosis of the arm, allegedly caused by Jenkins’ improper administration of injectable valium.

After trial, judgment was rendered dismissing Mohr’s suit. It was the trial judge’s opinion that Jenkins, in general, performed the procedure correctly and conformed to accepted medical practice. Mohr seeks review of that judgment. We affirm.

Appellant’s arguments center on the statement made by the trial judge in his written reasons (which, as we noted, found that Jenkins in general conformed to accepted medical practice) that Jenkins administered the valium too rapidly. The manufacturer’s recommendation on the insert sheet folded with the bottle of valium stated the drug should be administered “. . . slowly, taking at least one minute for each 5 mg. (1 ml.) given...” Appellant contends that the trial judge erred in accepting the opinion of the medical experts that Jenkins adhered to the proper standard of medical practice, since those opinions, appellant argues, were based on the erroneous assumption that Jenkins did adhere to the manufacturer’s instructions.

LSA-R.S. 40:1299.39 in pertinent part provides:

“(4) . . . The standard of care required of every health care provider in rendering professional services or health care to a patient, shall be to exercise that degree of skill ordinarily employed, under similar circumstances by the members of his profession licensed to practice in the state of Louisiana who is in good standing in a similar community or locale, and to use reasonable care and diligence, along with his best judgment, in the application of his skill; provided, however, that in the case of a health care provider practicing in a recognized field of specialty, the standard of care in rendering professional services or health care to a patient shall be to exercise that degree of skill ordinarily employed, under similar circumstances by the members of that specialty in good standing, and to use reasonable care and diligence, along with his best judgment, in the application of his skill.”

We are in agreement with the trial judge that Jenkins did not violate the required statutory standard of care. As can be seen from the following discussion, if we apply the standard for experts, the nurse anesthetist, Jenkins, exercised the standard of care exercised by specialists in similar circumstances. We must disagree with the assertion made by the trial judge, in the course of his written reasons, that the drug was administered in less than the time prescribed by the manufacturer. The evidence did not preponderate in support of the making of that assertion.

Jenkins testified that she always administered valium slowly in order to judge its effect. She further testified that she did not administer the valium to Mohr any faster than she administered it at any other time, and that she always administered the valium generally in conformity with the manufacturer’s recommendations. She did not use a watch to time the injection. However, the expert testimony reveals that to use a watch was not the standard practice and that specialists do not follow manufacturer’s inserts concerning the administration of valium, or any other medicine, strictly or literally. Therefore, even if Jenkins did not administer the valium in the precise time directed in the manufacturer’s insert, her degree of precision and care did not vary from that adhered to in the field of her specialty, and she did not breach the malpractice statute LSA-R.S. 40:1299.39.

Mohr testified that the entire procedure occurred in less than one minute. However, the expert testimony indicates that valium is administered because of its amnesic qualities, in order to dull or erase a patient’s memory of the activities that took place immediately before undergoing anesthesia.

After careful consideration of the evidence, especially the amnesic qualities which the expert testimony revealed valium possesses, we find that Jenkins’ estimate of time is more likely to be correct than Mohr’s, whose estimate was probably rendered incorrect by the proven effect of the injection of valium. The evidence does not establish that the valium was injected with undue rapidity. Furthermore, when we look to the malpractice statute, which furnishes the sole basis for liability, we see that the trial judge was correct in founding his determination upon the clear evidence that Jenkins acted in accordance with accepted medical practice. Hence, we find, as was found by the trial judge, that there can be no liability.

For the foregoing reasons, the judgment of the trial judge is affirmed at appellant’s cost.

AFFIRMED.


text:
    Ronald LEGER v. STATE POLICE RETIREMENT BOARD.
    No. 13650.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 10, 1980.
    Felix A. DeJean, III, Opelousas, for plaintiff-appellee Ronald Leger.
    William C. Toadvin, Staff Atty., Louisiana Dept, of Justice, Baton Rouge, for defendant-appellant, State Police Retirement Bd.
    Before ELLIS, COLE and WATKINS, JJ.
   ELLIS, Judge:

On May 19 or 20, 1979, while on duty at the front desk at Troop K, Sergeant Ronald Leger injured his back when he fell while attempting to sit down. By September 7, 1979, he was unable to work because of the pain in his back, despite conservative medical treatment, and went on sick leave. On September 18, 1979, he formally applied for disability retirement.

Pursuant to the application, an appointment was arranged with Dr. Herbert K. Plauche, whose instructions were as follows:

“Our retirement regulations require an in-depth report, in layman’s terms, of your diagnosis and your opinion as to whether this individual should be retired on disability retirement in his position as a State Trooper. Additionally, we will require a qualification as to whether this injury is duty related or a non-duty related injury.”

After examining Sergeant Leger, Dr. Plauehe reported that he was disabled to perform his occupational duties and “in all probability that this is a job-related disability.”

The only other evidence of Sergeant Leger’s physical condition in the record is the opinion of his personal physician, which is in accordance with that of Dr. Plauche.

On November 28, 1979, the State Police Retirement Board met and denied Sergeant Leger’s request “for a 75 percent job-related disability retirement.” No reasons were given for the action.

Thereafter, Sergeant Leger applied for judicial review of the action of the Board. The review, which was based on the record before the Board, resulted in a finding that Sergeant Leger was disabled, that his disability was “work related” and that he was entitled to 75 per cent disability retirement. From the judgment of the trial court, the Board has appealed.

A number of specifications of error are urged. The first of these is that the trial court erred in not remanding the case to the Board so that it might render written reasons for its ruling as required by law.

R.S. 49:958 provides, in part:
“A final decision or order adverse to a party in an adjudication proceeding shall be in writing or stated in the record. A final decision shall include findings of fact and conclusions of law. Findings of fact, if set forth in statutory language, shall be accompanied by a concise and explicit statement of the underlying facts supporting the findings.”

The Board did not comply with the foregoing mandatory language, in that it did not render written reasons for its decision. In the recent case of Buras v. Board of Trustees of Police Pension, 367 So.2d 849 (La.1979), the court, in discussing the standard of review as set forth in R.S. 49:964 G, said:

“In addition, it is apparent that the board itself failed to comply with the procedural requirements established by the Administrative Procedure Act. La.R.S. 49:955-958, 964 D. Pursuant to La.R.S. 49:964 G, the trial court was authorized to remand this matter for further proceedings to allow the board to comply with the requirements of the Administrative Procedure Act. In view of the board’s non-compliance with the procedures established by the act and the trial court’s failure to remand the case to the board, we find that the court of appeal erred in deciding this matter on the evidence before it. The clear effect of the Administrative Procedure Act is that evidence be heard and evaluated by the agency and a proper administrative record be transmitted to the court on which it can base its review of the agency’s decision in accordance with the standard of review set forth in La.R.S. 49:964 G. Accordingly, a proper disposition of this matter requires reversal of the judgment of the court of appeal and remand of the case to the board with instructions to comply with the Administrative Procedure Act.”

In accordance with the mandate expressed by the foregoing language, we think we are required to remand the case to the Board so that a proper record can be made up. In view of this finding, we need not consider the other specifications of error.

Accordingly, the judgment appealed from is reversed and set aside, and the case is remanded to the State Police Retirement Board so that it may comply with the provisions of the Administrative Procedures Act, R.S. 49:951 et seq., particularly R.S. 49:958; and thereafter the record shall be conveyed to the Nineteenth Judicial District Court for review in accordance with the standards set forth in R.S. 49:964 G. All costs of this appeal shall be borne by Ronald Leger.

REVERSED AND REMANDED.