author: LEAR, Judge.

text:
    Ross E. COX v. Claude KIRKPATRICK, et al. Ross E. COX v. SOUTHERN COLONIAL INVESTMENT, INC., et al.
    Nos. 14254, 14255.
    Court of Appeal of Louisiana, First Circuit.
    Aug. 24, 1981.
    Rehearing Denied Oct. 10, 1981.
    Eric A. Kracht, W. P. Wray, Jr., Bert K. Robinsin, Baton Rouge, for appellee.
    Thomas K. Kirkpatrick and James B. Thompson, III, Baton Rouge, for appellants.
    Before COVINGTON, CHIASSON and LEAR, JJ.
   LEAR, Judge.

These two consolidated suits were filed by Ross E. Cox (plaintiff) against Claude Kirkpatrick, Wayne D. Swenson, Sr. and Southern Colonial Investment, Inc. (defendants).

In the first [“paving”] suit, (Appeal Number 14,254), plaintiff sought recovery of an amount for paving work which plaintiff had performed on properties owned by defendants in the Interstate Shopping Center. Defendants filed a reconventional demand, alleging that plaintiff breached his agreement with defendants, whereby defendants were given the “right to earn” commissions upon obtaining leases on property owned by plaintiff. Defendants claim damage in the amount of $100,000.00.

In the second [“lease”] suit, (Appeal Number 14,255), plaintiff sought recovery of unpaid rental installments on a lease to defendants of property owned by plaintiff in the Colonial Shopping Center in the total sum of $75,000.00. Defendants in this suit also filed a reconventional demand, in which they sought cancellation of the lease sued upon by plaintiff, or a reduction of the amount owed, on the grounds that plaintiff had arbitrarily and capriciously denied defendants permission to sub-lease the premises in violation of the terms of the lease.

Defendants’ reconventional demand in the first suit, and the lease sued upon by plaintiff and defendants’ reconventional demand in the second suit are related to an exchange whereby plaintiff transferred Highland South Shopping Center to defendants in exchange for Colonial Shopping Center.

After a consolidated trial of these suits, plaintiff obtained judgment against defendants in the “paving” suit in the amount of $12,666.64, and in the “lease” suit in the amount of $52,500.00 subject to a credit to defendants of $6,358.32. Defendants’ re-conventional demands in both suits were dismissed with prejudice. Defendants then appealed both judgments.

Although consolidated for trial and on appeal, in order to avoid confusion, each suit is addressed separately.

The trial court, in a lengthy and well reasoned opinion, which we adopt in part, held as follows:

IN RE: APPEAL NO. 14,254

“The parties have stipulated that plaintiff furnished defendants paving for their Interstate Shopping Center in the amount of $21,666.64 (sic) [the correct amount is $12,666.64] for which defendants have not paid; the defense is that plaintiff agreed to permit defendants to earn real estate commissions by leasing for plaintiff a 12,000 square foot tract in Colonial Shopping Center, that defendants obtained and presented to plaintiff the lease prospects, but plaintiff failed to proceed in good faith to execute the leases.

“Accepting defendants’ own testimony, they had an understanding with plaintiff under the terms of which plaintiff would afford them the ‘right to earn’ commissions totalling between $70,000 and $132,000. At first blush, a contract which has as its object the obligee’s ‘right to earn’ money by obtaining leases acceptable to the obligor appears to be no contract at all. However, such a contract may constitute an innomi-nate contract, as provided by CC Art. 1787 (sic) [CC art. 1777 — 78]. Assuming such an agreement could constitute the object of a contract, no contract was formed between these parties because there apparently was no certainty as to the amount which the defendants would have the right to earn. The testimony as to the total sum varied; the variance may be ascribed in part to the allowance for the $60,000 in paving which plaintiff subsequently gave defendants but, even allowing for this, there is uncertainty as to the precise amount which defendants would have the right to earn. For example, the petition sets forth the sum of $100,000, which bears no reasonable relationship to the sums of $70,000 and $130,000, allowing for the circumstance of the deduction of the $60,000 in paving. Under these circumstances, the court is of the opinion that there has been no meeting of the minds and thus no contract.

“Assuming that defendants’ evidence had established the amount which they had the right to earn with sufficient specificity to reflect to (sic) meeting of the minds, they have failed to meet their burden of proving, by a preponderance of the evidence, the existence of an innominate contract under the terms of which they received the right to eqyn commissions somewhere between $70,000 and $132,000.

“The testimony of defendants Kirkpatrick and Swenson is sometimes confusing as to when and how this contract arose, and the amount thereof. Plaintiff denies the contract’s existence, and his denial is supported by three denials by defendants. The first denial occurred at the ‘dry run’ a few days before the closing of the exchange on June 23, 1972. The second denial occurred at the closing. The third denial occurred on or about September 21, 1972 .... Additionally, defendants admitted that they did not talk personally to Cox about the matter. Apparently, if they received any representations about plaintiff’s amenability to binding himself to giving them the ‘right to earn’ commissions, it came through one Wicker, whom, under the circumstances, they could not reasonably have believed to be the agent of plaintiff.

“Another circumstance pointing away from any binding agreement is that the consideration for that agreement would have been, by defendants’ contentions, an imbalance, in plaintiff’s favor, in the values of the properties exchanged; however, defendants leased other property from plaintiff — the lease in suit No. 169,896 [Appeal No. 14,255] — to make up an imbalance, in their favor, in the same exchange.

“The court is troubled by the letter proposal of June 1, 1973 . . . .[] This lends some force to defendants’ argument that there was an agreement under the terms of which they were entitled to earn a commission for the leasing of plaintiff’s properties. The force of this evidence is weakened, however, by the terms of the proposal, under which defendants were to do much more — and obligate themselves much more — and if they merely were to ‘broker’ leases for plaintiff.

“Even more telling is the way in which the defendants in their personal testimony characterized their arrangement with Cox on the ‘right to earn’ issue. They described it as a ‘gentlemen’s agreement’, and a ‘general understanding’, and testified that it was ‘nothing that was legally binding.’ []

“Considering all of the evidence, the defendants have failed to meet the burden of proof that there was in fact a valid and enforceable contract under the terms of which they had the ‘right to earn’ certain moneys.

“There is still another reason why defendants cannot prevail on their claim of a contract giving them the right to earn $70,-000, or $132,000, or some amount in between, by obtaining tenants for plaintiff’s 12,000 square foot tract in Colonial Shopping Center. Defendants are not licensed as real estate brokers. At the time of the events in question in this lawsuit, R.S. 37:1450 provided that:

“ ‘No person, not licensed in accordance with the provisions of this Chapter, shall recover any fee, claim or charge for brokerage in the courts of this stage (sic).’

and R.S. 37:1437 provided that

“ ‘No person shall engage in the business or capacity, either directly or indirectly, of a real estate broker . . . unless he has a license under the provisions of this Chapter.’

R.S. 37:1431 defined a ‘real estate broker’ as ‘any person who, for . . . valuable consideration . . . leases or offers to lease . . . any real estate . . . for others, as a vocation.’

“The argument that this was not defendants’ primary occupation, and thus they would not attempt to lease plaintiff’s property ‘as a vocation’, is dispelled by the decision, in Maniscalco v. Glass [La.App.], 163 So.2d 438 (2d Cir. 1964).

“Thus plaintiffs are barred by statute from performing the obligation which they admittedly were required to perform before they could recover anything under the alleged contract. The exception of no cause of action filed by the plaintiff to defendants’ reconventional demand in this suit has merit, and should be sustained. Since it was filed during the trial and is being disposed of at the same time as the decision on the merits, the effect is merely that defendants, as plaintiffs in reconvention, have failed to establish that a valid contract giving them the ‘right to earn’ commissions ever came into existence.”

IN RE; APPEAL NO. 14,255

“Plaintiff leased [to] defendants certain property in Colonial Shopping Center for a period of sixty months, at a monthly rental of $1,250. Defendants executed the lease as an inducement to plaintiff to enter into the Highland South-Colonial exchange; apparently the basic notion was that defendants possibly would sublet the property, perhaps for a higher rental, and would either make a profit, or at least be relieved of their lease obligations, thereby, but if they failed to do so they would nevertheless be liable to plaintiff for the basic rental. Defendants made 18 of the payments, but the remaining installments, totalling $52,500.00, admittedly are accrued and unpaid. Plaintiff must prevail unless defendants can establish a defense; they have attempted to do so by alleging that plaintiff’s refusal to accept sublessees tendered by them was arbitrary and capricious, and that plaintiff’s breach of the lease relieved them of the obligation to make further payments.

“Defendants introduced evidence tending to prove that several prospective tenants were submitted to plaintiff, but that he refused to approve leases to them. Plaintiff’s contention is that none of the proposed leases were acceptable because the proffered sublessees did not met the qualifications imposed in the lease between plaintiff and defendants. The lease contains a large number of these conditions or qualifications, and the evidence establishes that many of them were not satisfied by defendants and the subleases which they allegedly tendered. For example, the right to sublease was contingent upon defendants’ having paid ‘all rent punctually’; defendants rarely paid the rental on the due date. The subleases were to be ‘net-net-net’ leases, with all benefits payable to the plaintiff, and to be limited to ten years. In addition, the tenant was required to have ten years’ business experience and credit approved in advance by Fidelity National Bank. The two subleases about which extensive testimony was submitted — Dansky and International Property Management — each failed to qualify on a number of these requirements.

“Defendants’ response to this is that plaintiff failed to perform his obligation— to accept sublessees tendered by defendants — in good faith, and that his action in refusing these subleases was arbitrary and capricious. Defendants thus are invoking the ‘good faith’ doctrine of CC Art. 1901, and the ‘abuse of right’ doctrine.

“However, we do not believe that those doctrines apply where, as here, the tenants lease the property as an inducement to the lessor to purchase (here, through exchange) the leased premises from the tenants. The tenants apparently were willing to ‘lease back’ the property as a consideration for the lessor’s purchase, and the lessor then was willing to agree that if certain stringent requirements were met, he would permit them to substitute others under the lease. Plaintiff negotiated these terms at arms’ length as part of the consideration for a multi-million dollar purchase [exchange], and he should have the right to insist upon them.

“Even if a lessor could be held to be in ‘bad faith’ or to have ‘abused his rights’ in insisting upon specific sublease provisions for which he bargained at arms' length, the court is of the opinion that in this case plaintiff’s rejection of the proffered subles-sees was based upon sound investment and rental property management principles, and is neither in bad faith nor an abuse of rights.[]

“Defendants’ other contention is that the lease afforded plaintiff the option, at his whim, to accept or reject subleases, and thus was subject to a potestative condition. This argument overlooks the fact that defendants received, in addition to the sublease provision, other consideration, much more valuable to them, for the execution of the lease — plaintiff’s agreement to enter into the exchange of the Highland South Shopping Center for the Colonial Shopping Center (see, e. g., Par. IX of the lease, Cox 1). Assuming the sublease provision was potestative, it does not nullify the contract where, as here, there was other consideration sufficient to support the agreement. Since plaintiff has made out a prima facie case and defendants have offered no other defense, judgment should be rendered in favor of plaintiff . . ., subject to any credits to which defendants are entitled. There is one such credit.

“Prior to the expiration of the lease, and while defendants were in default, plaintiff re-let the premises to one McCIement. Defendants are entitled to a credit for the rental received by defendant (sic) on the new lease; the only issue is the amount of such credit. Under the initial lease with defendants, plaintiff was obligated to make $30,000 in improvements; under the McCIement lease, the tenant was obligated to make the improvements. However, plaintiff made the improvements, and the tenant is repaying him with monthly payments of $334.37 per month. Under these circumstances, plaintiff as a practical matter is in the same position with the new tenant— McCIement — as he would have been under the lease in suit if he had made the improvements and the defendants had paid him $616.24 ($181.87 rental payments plus $334.37 payments on the construction loan) per month. Under these circumstances, defendants are entitled to that credit. The McCIement lease took effect on January 1, 1975, and ran through the expiration of defendants’ lease, and encompassed the final 29.7 months of defendants’ lease. Thus defendants are entitled to a credit of 29.7 times $516.24, or a total of $15,332.33 [minus proper deductions in the amounts of $8,224.01, being a 9‘A% return on the $36,-112.20 investment made by plaintiff and the amount of $750.00 as the real estate commission paid by plaintiff to procure the substitute lease, for a total credit to defendants in the amount of $6,358.32.]”

For the above reasons, the judgments of the trial court in both suits (Appeal No. 14,254 and Appeal No. 14,255) are affirmed. Defendants-appellants are to pay all costs.

IN APPEAL NO. 14,254: AFFIRMED.

IN APPEAL NO. 14,255: AFFIRMED.

APPENDIX A

June 1, 1973

Mr. Ross E. Cox

P. O. Box 15467

Baton Rouge, Louisiana 70815

In re:

I. The unfinished portion of existing building — Colonial Shopping Center — Lot 12 of Southern Colonial Park Subdivision, East Baton Rouge Parish, La., referred to herein as Area “A”
II. Proposed 12,000 square foot building — Lot 11 and/or 12 Southern Colonial Park Subdivision, East Baton Rouge Parish, La., referred to herein as Area “B”

Dear Mr. Cox:

We propose to render such services as is necessary for leasing of the premises referred to as Area “A” and Area “B” in the caption, including completion of construction of Area “A” and construction of proposed building on Area “B”, and to secure lessees therefor, all in accordance with and subject to the terms, conditions and provisions appearing hereinafter and all of which shall be performed by us at our sole cost and expense, without right of reimbursement from you, except to the extent specified hereinafter.

. Attached hereto is a drawing showing Area “A” and Area “B”. We have signed and dated the attached drawing for identification with this letter proposal.

Area “A” is presently leased to Southern Colonial Investment, Incorporated. We are the stockholders of Southern Colonial Investment, Incorporated and guarantors of the lease between you and Southern Colonial Investment, Incorporated with respect to Area “A” which lease is dated June 23, 1972. The proposals made herein shall not affect the obligations of Southern Colonial Investment, Incorporated or our obligations to you as guarantors of Southern Colonial Investment, Incorporated except to the extent as is specified herein and then only to the limited extent as is specified in these proposals. We further acknowledge that the lease dated June 23, 1972, is but one of several agreements made between Southern Colonial Investment Incorporated, you and us, all dated June 23, 1972, and that these proposals shall not in anywise modify, change, alter or in any respect affect the obligations of any of the parties to the agreements dated June 23, 1972, and that such agreements shall continue in full force and effect.

We propose to secure a written lease for you as Lessor with Western Auto Supply Company as Lessee for not less than 9,000 square feet of building area proposed to be located in Area “B”. The lease shall provide for a term not less than fifteen (15) years and shall comply with the requirements specified herein for the leases which we propose to secure for you. We propose to lease the balance of the proposed 12,000 square foot building area, namely 3,000 square feet to other tenants in accordance with the requirements set forth hereinafter for leases.

We further propose to secure leases for you for the unfinished portion of the existing buildings on Colonial Shopping Center referred to as Area “A” and to secure said leases in accordance with the requirements set forth hereinafter for leasing.

All leases proposed to be secured by us for you shall comply with the following requirements:

1. All leases shall be in writing.
2. All leases shall be for a term of not less than five (5) years nor more than ten (10) years, except the lease with Western Auto Supply Company which shall be for a term not less than fifteen (15) years.
3. All rentals, sums and amounts and all economic benefits arising therefrom shall be payable to you as lessor and no part or portion thereof shall be payable or may be payable to us or to anyone else.
4. Minimum rentals shall be for $2.75 per square foot and the total rental of all square footage involved in Area “A” and Area “B” shall be so calculated as to produce a sum sufficient to fully amortize the loan for improvements specified hereinafter, and in addition thereto a sum equal to the taxes, insurance and maintenance plus a sum not less than $15,000.00 per year.
5. All leases shall specify net rental to you which for the purposes of these leases shall mean that the rentals shall be net to you after payment of taxes, insurance and all costs of repairs and expenses involved in maintenance.

All leases and all lessees shall be subject to your approval and shall be made in your name as lessor and shall require your signature thereto as lessor.

We propose to prepare plans and specifications for the completion of the unfinished portion of the existing building referred to as Area “A” and to prepare plans and specifications for the construction and erection of the 12,000 square foot building proposed to be constructed and erected on Area “B” and to have such plans and specifications prepared at our sole cost and expense and submitted to you for your approval. We further propose to complete the construction of the unfinished portion of the existing buildings referred to as Area “A” and to completely construct and erect the proposed 12,000 square foot building on Area “B” in accordance with plans and specifications to be prepared by us at our sole cost and expense and to be approved by you. We propose that all construction in Area “A” and Area “B” shall be of the best quality of materials and in a thoroughly workmanlike manner and to furnish you with payment and performance bonds in connection therewith pursuant to construction contracts to be entered into by us with you, all of which shall have your approval prior to any work being done or performed in connection therewith. We shall provide you with public liability, property damage and workman’s compensation insurance in amounts and companies satisfactory to you. We warrant that the total sum to be extended by you in accordance herewith as to Areas “A” and “B” shall not exceed the sum of $200,000.00 to be applied in the following sums and amount as to Area “A” and Area “B”:

1. Completion of construction of Area “A" $ 30,000.00
2. Completion of construction of 12,000 square foot building on Area “A” 146,000.00
3. Payment for the lease of 12,000 square feet in Area “B” from your existing mortgage 24,000.00 $200,000.00

We propose further to secure for you and in your name a loan for the total sum of cost of construction and completion of construction in Area “A” and Area “B” including the cost of release from your first mortgage, namely the total sum of $200,000.00, the terms of which the loan shall be amortized over a period of twenty (20) years at a rate of interest not to exceed eight and one half (872) percent per annum. The said loan shall provide repayment in level monthly installments over said twenty (20) year period provided however that said loan shall be evidenced by such documents as is necessary to reflect that you shall not be responsible for the payment of said loan and that the property designated herein as Area “B”, together with its improvements shall stand solely responsible for the debt and that there shall be no personal liability on your part as maker of such evidence of the indebtedness.

Under no circumstances shall you be required to pay us for any sum in addition to or in excess of the actual cost to us of construction or completion of construction for the work to be performed in accordance herewith to Area “A” and Area “B”.

For and in consideration of the services to be rendered by us proposed to be performed herein, all of which shall be performed at no cost or expense to you and without reimbursement from you, we shall be entitled to receive from you, over a period of seven (7) years and six (6) months from the date hereof all sums received by you from rentals under leases on Area “A” and Area “B” in excess of the total sum sufficient to amortize the loans for the improvements, the total of taxes, insurance and costs of repairs and expenses involved in maintenance together with the sum of $15,000.00 per year. On termination of seven(7) years and six (6) months from the date of this letter, we shall not be entitled to receive any sum or sums whatsoever in connection with the rental to be received by you thereafter from leases of the areas referred to herein as Area “A” and Area “B”.

We further herewith agree that we shall hold you harmless and keep you indemnified from all other fees, costs or expenses, commissions or finder’s fees in connection with the leasing and/or completion of construction of the improvements on Area “A” and Area “B” as referred to herein and including all costs, expenses and attorney’s fees.

We further propose that upon our full and complete compliance with the terms and conditions of this letter agreement and upon completion of construction of the premises in Area “A” and Area “B” and upon occupancy of said premises by tenants sufficient to afford you rentals to be received by you in excess of the amortization of the loans, taxes, insurance and expenses of maintenance, so that you will be receiving $15,000.00 above the total of those items, you and Southern Colonial Investment, Incorporated and we, as guarantors shall continue to make said rental payments due under said lease of June 23, 1972, until you are in possession of leases with Western Auto Supply Company and others sufficient to produce the sum of $15,00.00 per annum in excess of the costs and expenses specified herein in accordance with terms and conditions hereof.

We herewith agree that nothing whatsoever contained herein shall permit or allow us to negotiate for you as your agent or bind you as your agent in the course of negotiations and all of our negotiations, activities and the performance of our obligations hereunder shall be as independent contractors rendering independent services and that we shall not hold ourselves out as your agent, or in any way subject you to responsibility for our activities. All of the services to be rendered by us under the terms and conditions hereof shall be subject to your approval and you shall not be responsible for any sum or sums whatsoever unless the same has been approved by you prior to the expenditure thereof in writing or prior to the incurrence of any indebtedness, claim or action, all to be approved in writing prior to the same.

We further agree that the use and occupancy of Area “A” and Area “B” shall never be in conflict with any other tenant or lessee of Colonial Shopping Center or shall the use or occupancy of Area “A” or Area “B” be objectional to any of the tenants or lessee of Lot 11 or Lot 12 of Southern Colonial Park Subdivision and that the use of said premises shall be compatible with all other tenants of said Lots 11 and 12 of Southern Colonial Park Subdivision.

We have provided a place for your signature at the foot of this letter and will, upon receipt of a copy hereof signed by you proceed to immediately produce and secure for you the lease with Western Auto Supply Company. We agree that this agreement shall be null and void and of no effect whatsoever in the event we do not secure and produce for you the lease with Western Auto Supply Company in accordance with the terms and conditions of these proposals.

Yours very truly,

/s/ Wayne D. Swenson Wayne D. Swenson

/s/ Claude Kirkpatrick Claude Kirkpatrick

       On August 1, 1981, and after preparation of this opinion, Ross E. Cox died, and Billie Maier Cox was thereafter confirmed as executrix of the succession of Ross E. Cox and on her motion has been substituted for Ross E. Cox in this court.

       This letter is attached as Appendix A.

      . The court has not overlooked the fact that defendants spent a considerable amount of time attempting to negotiate a lease between Western Auto and plaintiff on the 12,000 square foot tract in Colonial. If they had been successful, they may have been entitled to a fee. This, however, does not support their contention here made — that they had acquired the indefeasible right to earn commissions from the lease of plaintiffs property, either from the Western Auto lease or from some subsequent lease. Since the court finds that no such right was acquired, and since the Western Auto contract was not confected, defendants are not entitled to a credit or judgment as a result of such contentions.

      . Defendants’ major contention is that plaintiff failed to properly evaluate the subleases which were proffered, “dragging his feet” and arbitrarily refusing to approve satisfactory leases. The evidence does not support this contention, however. Defendants’ evidence, as well as plaintiffs, establishes that the subleases when tendered did not contain plans and specifications from which plaintiff could determine the cost of making the premises suitable for occupancy by the tenant. At least one of the tenants did not possess a credit rating justifying a lessor’s investment in the costs of readying the premises for occupancy. While plaintiff may not have taken the initiative in obtaining suitable subleases, such was not his burden. Plaintiff was an investor and defendants were in the business of leasing properties. In view of their respective expertise and their relative positions (plaintiff had a lease and had merely given defendants a chance to pass the rental on to third persons), defendants, and not plaintiff, should have bom[e] the burden of presenting subleases which were technically correct and which met either the express provisions of the lease, or sound investment principles, or both. Defendants did neither, however. Apparently they turned the subleasing problem over to real estate agents, without informing those agents of the requirements for subleases set forth in the lease between plaintiff and defendants. The court is of the opinion that defendants simply did not take care of the business of subleasing, although it was their obligation and they would have reaped the profits therefrom.


source: Caselaw Access Project

author: GARRISON, Judge.

license: Public Domain

text:
    Donald E. DAHL v. Raquel J. TRUMBACH and Government Employees Insurance Company.
    No. 11694.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 8, 1981.
    Rehearing Denied Oct. 20, 1981.

      Meunier, Martin & Meunier, Marcel J. Meunier, Jr., and Donald S. Martin, New Orleans, for plaintiff-appellee.
    Hammett, Leake & Hammett, W. Paul Andersson, New Orleans, for defendants-appellants.
    Before SAMUEL, SCHOTT and GARRISON, JJ.
   GARRISON, Judge.

This is an appeal from a judgment of the district court, in favor of plaintiff and against the individual defendant and her insurer. The judgment awards damages in the amount of $12,320.10, plus legal interest and costs, for injuries sustained by him when he was hit twice by a vehicle operated by the defendant, Raquel J. Trumbach and bitten by her. The defendant’s insurer, GEICO, appeals on the ground that Trum-bach’s liability is not covered under the policy because her actions were intentional. The policy contains an exclusion for intentional acts. Trumbach has not appealed and is absent from the jurisdiction. She did not appear for trial.

On the night of the incident, plaintiff and defendant had attended a party in Metairie. The plaintiff drove to the defendant’s home in Gretna and escorted her to a party held by Singles, Inc. and Parents Without Partners, Inc. During the course of the evening, he stated that he wanted to go home and go to sleep as he had to work the next morning. She accompanied some friends to a Fat City bar, “The Place.” Instead of going home, the plaintiff went to Morning Call Cafe, located near Lakeside Shopping Center, where he consumed a cup of coffee. Passing “The Place” he noticed the defendant’s friends’ car. He went into the bar and inquired as to her whereabouts. He was informed that she had taken a cab home. He returned to his car and drove to his residence (one block from the intersection of Robert E. Lee and Canal Blvd.). He parked his car on the street and was walking toward his driveway when the defendant, (who had returned to Gretna, gotten her car, drove to his home, and parked in his carport) drove her unlit automobile toward him at a rapid speed.

She then changed gears, reversed her direction, again driving towards him at a rapid speed and hitting the plaintiff with her vehicle. Once again she changed gears, reversed her direction and hit plaintiff for a second time, knocking him to the ground.

On the third pass, the plaintiff had placed his arm inside the vehicle in an attempt to snatch the keys from the ignition. At this time, the defendant repeatedly bit his arm.

Upon our independent review of the evidence and testimony presented, we conclude that the trier of fact was manifestly erroneous in its conclusion that Raquel Trumbach did not intend to hit and injure the plaintiff.

Plaintiff testified that the defendant often acted erratically when she was drunk. He further testified that she had two or three drinks at the party, which began at 8:00 p. m. There is no testimony or other evidence indicating that defendant did or did not consume alcohol in the hours between the time when defendant left the party and approximately 3:00 to 3:30 a. m., when the tortious incident occurred.

Having thus concluded that Raquel Trumbach’s tortious acts were indeed intentional, we find that the trial court erred in granting judgment against GEICO, inasmuch as the policy at issue specifically excludes coverage for intentional acts.

For the reasons discussed, the judgment of the district court is affirmed in part and reversed in part as follows:

IT IS ORDERED ADJUDGED AND DECREED that there be Judgment herein in favor of Donald E. Dahl and against Raquel J. Trumbach for the following: for general damages (pain and suffering) $6,000.00; for special damages as follows: impairment of earning capacity $3,000.00; for medical expenses at St. Bernard Medical Center $1,335.75; for medical expenses at St. Bernard General Hospital $1,984.35; all with legal interest and costs.

IT IS FURTHER ORDERED ADJUDGED AND DECREED that there be judgment herein in favor of Government Employees Insurance Co., dismissing plaintiff’s action against it.

AFFIRMED IN PART; REVERSED IN PART.

      . General damages (pain and suffering) .$ 6,000.00
      Impairment of earning capacity. 3,000.00
      Medical Expenses — St. Bernard Medical Center 1,335.75
      Medical Expenses — St. Bernard General Hospital . 1,984.35 $12,320.10


author: SCHOTT, Judge.

text:
    Michael MUNNA, d/b/a Michael Munna Construction Co. v. Mabel Buffone, wife of/and Salvador A. MANGANO.
    No. 12323.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 8, 1981.

      Glenn E. Diaz, Chalmette, for defendants-appellants.
    Jerald N. Andry, Gilbert V. Andry, III, New Orleans, for plaintiff-appellee.
    Before REDMANN, SCHOTT and KLEES, JJ.
   SCHOTT, Judge.

This is a suit for the balance due plaintiff on an oral contract with defendants for carpentry work provided by plaintiff. Defendants reconvened for damages resulting from plaintiff’s alleged breach of contract consisting of his defective workmanship. From a judgment in favor of plaintiff for $830, defendants have appealed. The principal issue is whether an enforceable compromise agreement was entered into between the parties supporting the award of $830.

In June, 1978, the parties entered into an oral contract for plaintiff, a carpenter, to do the framing work for $5,181.70 on a new house being constructed by defendants. Construction was being financed by a bank which employed Kenneth Edwards as building inspector. On October 9 defendants had become dissatisfied with plaintiff’s work and advised him in writing that they were terminating his contract and were employing another carpenter to complete the work. They advised plaintiff that they would charge him for their costs to com-píete the unfinished work, deducting that amount from his final payment. At this stage plaintiff had been paid $4,000 and was owed the balance of $1,181.70. On October 13 defendants advised plaintiff that they had received an estimate from another carpenter to complete the work for $425 and advised plaintiff that this would be deducted from his final payment to be made after final inspection of the project. Nonetheless plaintiff demanded full payment, and on October 17 the job was inspected by Edwards in company with defendants. This inspection resulted in a letter from Edwards to plaintiff, dated October 18, which contained a 17-item “punch list” and a notice that unless plaintiff started back on the job by 2 PM October 20 another carpenter would be put on the job. According to Edwards the work could be completed in three days. According to plaintiff he did comply with this letter and corrected or completed those items which he felt were his responsibility. Nevertheless, on October 24, 1978, defendants addressed the following letter to plaintiff:

“It appears that you do not know how to do proper work and I am getting another carpenter to properly finish your work. In my conversation with you, I was told that you would allow $120.00 for someone else to install stucatto board because you felt that your carpenters in your words ‘would butcher up the job.’
To cover butted black board joints and vapor proof building or a days work $40.00. To cut header and construct same in a workmanlike manner, labor no charge, carpenter that assisted $25.00. To redo deadwood in corners, to properly fix ceiling by bay window, to properly fix ceiling in utility room, to properly install additional 2 X 4’s in corner returns such as in Vfe bath under stairs on first floor, and other corner returns that are missing $65.00.
To properly rehang bay window and bow window, and frame out with 2 X 4’s following bottom lip of window. To secure double front window, to put 2X4 above window second floor left side, to properly rebuild arches $75.00.
To replace plywood that was installed on overhang, knowing that it was defected, and you were instructed not to nail up. Labor and materials $50.00.
I have gone over the above with Mr. Edwards in detail and he feels like we do that this work is better to be completed by someone else. It appears that even though you made an attempt at some of the items, we are no better off than we were in the previous letter.
To conclude this matter Mr. Edwards has stated that he will authorize the payment of $830.00 and have hired men to complete this work properly in a workmanlike manner. Present your bill to me in this amount. This $830.00 represents payment in full at our job.”

Plaintiff did by letter of November 16 present a bill for $830, accepting this compromise. He did no more work on defendant’s house and the framing was completed by another carpenter.

Plaintiff’s suit pled alternatively for $830 on the theory that a compromise had been struck between the parties or $1181.70 which was the balance due under the original contract. The defendants’ reconven-tional demand alleged that the house was left with a sagging room resulting from defective workmanship by plaintiff. In this court defendants argue that they never intended to include in the release those damages resulting from the sagging roof; they simply intended to settle for the work he had actually performed up to October 24.

Edwards testified that he had noticed this sag in the roof even before October, 1978, and had pointed it out to defendant, Mr. Mangano, who assured him that this problem would be taken care of with knee braces and collar braces. Edwards, who was defendants’ witness and was qualified by them as their expert, testified that this was a minor problem which could have been corrected by two men in an hour’s time at this stage of construction. At one point he stated that he had explained a dozen times that this could have been corrected in this fashion. With reference to his punch list of October 18 he stated that the sag in the roof “was so unimportant that I didn’t point it out in my list. I discussed it with both Mr. and Mrs. Mangano. It had to be done.” He went on to say that the next time he came to the job the roof had been finished and the sag which he now characterized as a “slight belly” was obvious.

Mr. Mangano admitted he was aware of the sag while plaintiff was still on the job and was under the impression that the sag would come out of the house. After plaintiff left the job he was told by another carpenter that he could get the sag out before he wrote the letter to plaintiff. Nevertheless, after plaintiff left the job following the October 24 letter defendants employed another carpenter to finish the framing, brought in the roofer and had the sheetrock installed in the interior. At trial they produced the carpenter who did this work and who testified that it would cost $2275 to eliminate the sag at the stage where the roof and sheetrock had been completed. However, he stated that this corrective work could have been accomplished before the roofing was completed at a cost of $180.

In order to have a valid compromise there must be a meeting of the minds between the parties as to exactly what they intended when the compromise was reached. L.S.A. C.C. Art. 3073. Parol evidence is admissible to rescind a compromise whenever there exists an error as to the matter in dispute. C.C. Art. 3079, Moak v. American Automobile Insurance Company, 242 La. 160, 134 So.2d 911 (1961). The trial judge properly admitted parol evidence in this case consisting of the testimony of the parties as well as the other witnesses and properly concluded that defendants intended to include in the compromise the sag in the roof. When the letter of October 24 was written plaintiff was still on the job and had $1,181.70 coming to him upon completion. There was a difference between him and defendants, including their expert, as to how much work was still required of him under the contract and their offer was for him to leave the job and be paid only $830 in full settlement of his claim, and he accepted that offer.

It is significant that Mr. Mangano, defendant, was the general contractor on this job and made the decision to cover up the area with the roof and the sheetrock without spending the $180 it would have cost to correct the sag at that point. His decision to cover up the sag and then claim $2275 after the fact is an insupportable position. The evidence shows that he had compromised his complaint about the sag along with whatever else may have been required of plaintiff for $830 and he was bound by this compromise.

Accordingly, the judgment appealed from is affirmed.

AFFIRMED.

      . The judgment does not specifically adjudicate the reconventional demand. However, in their brief defendants recite that trial judge verbally informed counsel that their reconventional demand would be dismissed because of the “corn-promise” between the parties. Defendants acknowledged that the judgment has the effect of recognizing the compromise and thus resolving all matters between the parties, including defendants’ reconventional demand.


text:
    Nathan L. CARMADELLE, et al. v. KOCH-ELLIS MARINE CONTRACTORS.
    No. 5-115.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 16, 1981.
    Edward J. Castaing, Jr., Dymond, Crull & Castaing, David A. Kerstein, Wright & Ker-stein, New Orleans, for defendant-appellee.
    Nathan Greenberg, Greenberg & Dallam, Gretna, for plaintiffs-appellants.
    Before SCHOTT, CHEHARDY and KLIEBERT, JJ.
   SCHOTT, Judge.

This is before us on defendant’s motion to dismiss plaintiffs’ appeal on the ground that it was not taken within the sixty day delay provided by LSA C.C.P. Art. 2087. Plaintiffs’ application for a new trial was denied on November 15, 1980, and they did not take an appeal until January 26, 1981. However, on December 19, 1980, defendant had taken an appeal and on January 23, 1981 defendant filed a motion in the trial court to dismiss its appeal and there obtained an ex parte order of dismissal of the appeal.

Once defendant took its appeal plaintiffs had the right to answer that appeal until fifteen days after the record was lodged in this court and such would have been equivalent to an appeal on their part, C.C.P. Art. 2133. According to defendant, plaintiff’s right to utilize Art. 2133’s provisions and file an answer in order to modify the judgment in their favor was frustrated by the simple expedient of a dismissal of the appeal after Art. 2087’s sixty day delay ran. We are unable to take this harsh position.

Rule VII, Section 3, Uniform Rules — Courts of Appeal, contemplates that an appellant’s motion to dismiss his appeal shall be filed in the appellate court and the rule significantly provides that this may be done “[i]n the absence of a timely answer to the appeal or other formal action to amend or modify the judgment appealed. . . . ” Thus, had defendant’s motion to dismiss the appeal been filed in the proper court it would not have been granted until the C.C.P. Art. 2133’s delay had run against plaintiffs’ answer to the appeal.

While it may be argued that plaintiffs technically took an appeal and not an answer to the appeal, we have concluded that their appeal should be treated as an answer rather than penalize them on such a technicality. This is especially appropriate since it was defendant’s action in securing a dismissal of its appeal from the trial court which created the appearance of there being no appeal for plaintiffs to answer.

Accordingly, we deem the appeal of plaintiffs to be a valid answer to defendant’s appeal although defendant has apparently decided to seek no further relief in this court. Defendant’s motion is denied.

MOTION TO DISMISS APPEAL DENIED.


author: HAWKINS, Justice, for the Court:

text:
    Mrs. Tobie BRANTLEY v. M. F. SURLES, Superintendent of Education, Montgomery County, Elmo Branch; Thomas Woods; Richard Morman; E. C. Henson, M. D.; J. W. Card, Members of the Board, Montgomery County Board of Education, Montgomery County, Mississippi.
    No. 52614.
    Supreme Court of Mississippi.
    May 27, 1981.
    Rehearing Denied Nov. 4, 1981.

      Charles L. Lewis, Jr., Deramus, Lewis & Tucker, Louisville, for appellant.
    John L. Low, IV, Watkins & Eager, Jackson, for appellees.
    Before ROBERTSON, P. J., and SUGG and HAWKINS, JJ.
   HAWKINS, Justice, for the Court:

Mrs. Tobie Brantley has perfected this appeal from a decree of the Chancery Court of Montgomery County sustaining a demurrer to her bill of complaint or petition against the Superintendent of Education and Board of Education of Montgomery County for reinstatement to her position as manager of the Kilmichael Elementary School cafeteria, ffom which she was discharged in September, 1976, as well as other relief. This is the second time this case has been before this Court. We affirm.

In 1976, and for several years prior thereto the appellant Mrs. Brantley was employed by the Montgomery County School District as manager of the Kilmichael Elementary School cafeteria.

The minutes of the Montgomery County Board of Education of August 2, 1976, reflect a meeting held, with her present, concerning her son attending a private school while she was employed in the Kilmichael Elementary School, and a decision made to dismiss her for this reason.

By letter of August 26, 1976, from the County Superintendent of Education M. F. Surles, she was informed the board would meet September 13, 1976, to discuss her case. (The letter states the meeting will be held July 13, 1976, but this obviously meant September 13, 1976, the date the meeting was actually held). On September 13, 1976, the board met with Mrs. Brantley again attending, and on September 14, 1976, the county superintendent again wrote her, informing her the board had reluctantly made its decision regarding her employment, and indicating no cause other than her son’s attending a private school. Again, on September 20, 1976, the county superintendent wrote her reiterating what had transpired, and informing her the termination date of her employment was September 17, 1976.

Pursuant to her request a hearing was conducted by the board on November 1, 1976, in which testimony was taken and transcribed pertaining to the reasons for her discharge, as well as her job performance. At the conclusion of the hearing, the board made the following findings of fact:

“FINDING OF FACT
“That Mrs. Tobie Brantley had been lunchroom supervisor of the Kilmichael Elementary School cafeteria for a period of at least four years. That she is not a person protected by the provisions of the Public School Fair Dismissal Act-Section 37-9-101, et seq. of the Mississippi Code of 1972.
“That the Superintendent of Education has the right to discharge an employee such as Mrs. Tobie Brantley for any reason not prohibited by law, and not for the sole reason that her child attends another school system.
“The evidence revealed to the Board that many complaints were received by Mr. Surles, Superintendent of Education, concerning the atmosphere, friendliness and general welcome of students and staff in the cafeteria. The evidence further reveals that the portions were smaller than at other schools, and in the opinion of some observers, the food was not prepared in a palatable manner. It was further shown that Mrs. Brantley had called one of the Board members, J. W. Card, a liar. The son-in-law of Mrs. Brantley criticized the school system over its racial makeup. The Board further finds that the attitude of Mrs. Brantley in an integrated school system which is approximately 65% Black, and which system is under a Federal Court order and control, jeopardizes the harmony and peaceful relations in the system.
“The Board further finds that Mrs. Brantley had removed one of her children from the Montgomery County School System and enrolled the child in a private segregated academy.
“The Board further finds that Mrs. Brantley has no protected right to continued employment, has no tenure, and is not entitled to continued employment indefinitely. The Superintendent of Education has the right to discharge an employee such as Mrs. Brantley for no reason. A mere public employee is not entitled to a hold on employment simply as a result of long term service in the system.
“It is clear to the Board that Mrs. Brantley has not been discharged for the single reason that an eligible child does not attend the school system in which she is employed in violation of Section 37-9-59, Mississippi Code of 1972.”

The Board thereupon entered an order finally discharging Mrs. Brantley. She filed a bill of complaint or petition in the Chancery Court of Montgomery County on December 3, 1976, against the county superintendent and county board of education, petitioning therein for her reinstatement and back pay to date of reinstatement as manager of the cafeteria. Along with their answer, the board and superintendent filed a demurrer and motion to dismiss, alleging the chancery court had no original jurisdiction because Mrs. Brantley’s sole remedy by way of appeal was to the State Board of Education pursuant to Section 37-9-59 of the Mississippi Code of 1972.

The chancery court overruled the demurrer and motion to dismiss, holding the court had jurisdiction under the bill of complaint alleging Mrs. Brantley was deprived of a “valuable right,” which was a “property right under her contract.” The court further found Mrs. Brantley was entitled to the protection afforded professional personnel as required by Miss.Code Ann. § 37-9— 101 through § 37-9-113 (Supp.1975), the Public School Fair Dismissal Act of 1974, Laws 1974, Chap. 577, § 1, et sequitur [repealed 1/9/77 by Miss.Code Ann. § 37-9-101 through § 37-9-113 (Supp.1977)], and that Mrs. Brantley did not have to perfect an appeal to the State Board of Education, but could appeal directly to the chancery court.

The chancellor then reviewed the record made of the hearing before the Montgomery County Board of Education on November 1,1976, and ruled there was no substantial evidence supporting any other reason for her discharge than her son’s attending a private school. The court thereupon rendered an opinion and a decree for reinstatement of Mrs. Brantley.

The final decree of the chancery court was rendered September 8, 1977, and an appeal was perfected to this Court by the county superintendent and county board of education, in “M. F. Surles, Superintendent of Education, et al., v. Mrs. Tobie Brantley,” Number 50,681. On October 11, 1978, in an unpublished opinion, 363 So.2d 94, we reversed and rendered the decree of the chancery court, holding therein the original demurrer of the appellants should have been sustained in that Mrs. Brantley was not an “employee” as defined under Miss. Code Ann. § 37-9-101 through § 37-9-113 (Supp.1975), the Public School Fair Dismissal Act of 1974, Laws 1974, Chap. 577, § 1, et sequitur [repealed 1/9/77 by Miss.Code Ann. § 37-9-101 through § 37-9-113 (Supp. 1977)], and had no right of direct appeal to the chancery court of Montgomery County, and further that she had no “property right” in her job. The decree of the chancery court was thereupon reversed, and the November 1, 1976, order of the Montgomery County Board of Education reinstated.

On May 8, 1979, Mrs. Brantley again filed a petition in the Chancery Court of Montgomery County against the same officials, in cause number 65-05-79, entitled “Petition for Review, Reinstatement, Back Pay, Damages, Injunctions and Other Relief.” In this petition she alleged the same facts as in the initial petition filed in 1976. General and special demurrers were filed by the defendants, assigning (1) the cause of action was barred by § 15-1-29 of the Code of 1972; (2) the cause of action was merged into the judgment rendered by this Court in Cause No. 50,681, and (3) the Chancery Court of Montgomery County was without jurisdiction to hear the cause. The demurrer was sustained on all three grounds by the chancellor, and from a decree dated March 21, 1980, finally dismissing the petition with prejudice, this appeal was perfected by Mrs. Brantley.

While it is our opinion the right result was reached in our prior decision, we do feel obligated to address the legal questions posed by the provisions of Miss.Code Ann. § 37-9-59 (Supp.1974), Laws 1974, Chap. 459, and Miss.Code Ann. § 37-9-1.

Miss.Code Ann. § 37-9-59 (Supp.1974), (Laws of 1974, Chap. 459) is a statute setting forth grounds for which a superintendent, principal or teacher of a school may be discharged, the procedure therefor, and appeals which may be taken therefrom.

The final paragraph of this statute reads as follows:

“The governing authorities of every school district in this state are hereby prohibited from denying employment or reemployment to any person as a superintendent, principal or teacher, as defined in Section 37-19-1, or as a noninstruc-tional personnel, as defined in Section 37-19-1, for the single reason that any eligible child of such person does not attend the school system in which such superintendent, principal, teacher, or nonin-structional personnel is employed.”

Mississippi Code Annotated § 37-9-1 (1972) gives the following definition of school personnel:

“For the purposes of this chapter the terms ‘superintendent,’ ‘principal’ and ‘teacher’ shall have such meaning as are ascribed to them under the provisions of Section 37-19-1. The term ‘noninstruc-tional personnel’ shall include all employees of school districts other than superintendents, principals, teachers, and school bus drivers.”

Another statute, Miss.Code Ann. § 37-9-101 through § 37-9-113 (Supp.1975), the Public School Fair Dismissal Act of 1974, Laws 1974, Chap. 577, § 1, et sequitur [repealed 1/9/77 by Miss.Code Ann. § 37-9-101 through § 37-9-113 (Supp.1977)], entitled “Public School Fair Dismissal Act,” was the vehicle by which Mrs. Brantley sought her appeal directly to the Chancery Court of Montgomery County in 1976, and we held in our previous opinion Mrs. Brant-ley was not in the category of school personnel covered under that act, and that she was not “professional personnel” granted the right of direct appeal to the chancery court under the Fair Dismissal Act.

The appellant charges that, aside from the Fair Dismissal Act, the school board clearly violated Chapter 459 of the Laws of 1974, (§ 37-9-59), for the sole reason her son attended a private school.

To answer this contention, ably and strenuously urged by counsel for appellant, we have again reviewed the original record in cause number 50,681.

Even though appellant was a public employee, the only right she had pertaining to continued employment was the restricted right granted her under Chapter 459 Laws of 1974. As we stated in our former opinion, she had no property right in the job, and aside from this particular provision of the act pertaining to having a child in attendance at a private school, and absent a contract specifying otherwise, the governing authorities clearly had the right to terminate her at will, just as she had the right to quit any time she chose. 78 C.J.S., Schools and School Districts, § 152, page 964 states:

“General rules apply with respect to the termination of employment of school employees. The power of a school district or other school organization to hire employees carries with it the power to remove such appointees or employees at pleasure, unless the employment is for a specified period not yet expired, or the power of removal is restricted by statute.”

As to employees generally, see Masonite v. Handshoe, 208 Miss. 166, 44 So.2d 41 (1950); Montgomery Ward & Co. v. Skinner, 200 Miss. 44, 25 So.2d 572 (1946); Rape v. Mobile & Ohio R. R., 136 Miss. 38, 100 So. 585 (1924).

Since the appellant sought the protection of § 37-9-59 in appealing from the decision of the Board discharging her, it was incumbent upon her to follow the procedure provided under this act, namely: to appeal such decision first to the State Board of Education, and if unsuccessful before the State Board to thereafter perfect an appeal to the chancery court. This she failed to do choosing instead to attempt an appeal directly to the chancery court under the provisions of another, separate act, the Public School Fair Dismissal Act of 1974, Laws 1974, Chap. 577, (§ 37-9-101 et seq.) Chapter 577, Laws 1974 was inapplicable to appellant, and therefore the chancery court, procedurally, was without jurisdiction to hear her case in 1976, as we have heretofore stated.

Moreover, we find there was substantial evidence supporting the findings of fact of the Montgomery County Board of Education of November 1, 1976. There is no need to relate the evidence. While the previous minutes of the Board and correspondence indicate no other problem with Mrs. Brantley than her son’s attending a private school, and there was considerable testimony her job performance was satisfactory, nevertheless a conflict of testimony was presented to the Board, and clearly the Board was entitled to accept the sworn testimony at that hearing of the County Superintendent of Education, who still holds that office in Montgomery County. To have violated the act, it was necessary to show that the “single reason” appellant was discharged was her son’s attendance at the private school. The Board at that hearing found other reason for her discharge, and there was substantial evidence to support such finding.

In appellate review, courts are under an obligation to respect the findings of fact of administrative bodies, and must do so when supported by substantial evidence. Board of Supervisors of Clay County v. McCormick, 207 Miss. 216, 42 So.2d 177 (1949); Mississippi State Tax Commission v. Mississippi-Alabama State Fair, 222 So.2d 664 (Miss.1969); Loftin v. George County Board of Education, 183 So.2d 621 (Miss.1966); Cobb Bros. Const. Co. v. Gulf M. & O. R. Co., 213 Miss. 706, 57 So.2d 570 (1952); County Board of Education of Alcorn County v. Parents and Custodians of Students at Rienzi School Attendance Center, 251 Miss. 195, 168 So.2d 814 (1964). This rule has strong application to school boards in the management and administration of school systems in our state.

We find, therefore, the chancery court in 1976 was initially without jurisdiction because an appeal had not first been sought to the State Board of Education, and appellant had not exhausted her administrative remedies; and also, there being substantial evidence to support the findings of fact of the Board, even if a direct appeal to the chancery court had been proper, the chancery court was bound by such factual findings.

The chancellor was correct in sustaining the demurrer to the petition filed in 1979, from which this appeal was taken, upon all three grounds, our former opinion being the law of this case when the mandate and judgment was rendered in this Court thereon. Cochran v. Latimer, 111 Miss. 192, 71 So. 316 (1916); Phillips Petroleum Co. v. Stack, 246 So.2d 546 (Miss.1971).

AFFIRMED.

PATTERSON, C. J., SMITH and ROBERTSON, P. JJ., and SUGG, WALKER, LEE and BOWLING, JJ., concur.

BROOM, J., took no part.

      . The full text of Chapter 459, Laws of 1974 reads as follows:
      “CHAPTER 459
      “SENATE BILL NO. 1751
      “AN ACT to amend Section 37-9-59, Mississippi Code of 1972, to provide that no person shall be denied employment or reemployment as a superintendent, principal, teacher or noninstructional personnel in the public schools solely because any child of such person does not attend the school system in which such person is employed.
      “Be it enacted by the Legislature of the State of Mississippi:
      “Section 1. Section 37-9-59, Mississippi Code of 1972, is amended as follows:
      “37-9-59. For incompetence, neglect of duty, immoral conduct, intemperance, brutal treatment of a pupil or other good cause the county superintendent of education or superintendent of the municipal separate school district, as the case may be, may remove or suspend any superintendent, principal or teacher in any school district. Before being so removed or suspended the superintendent, principal or teacher shall be notified of the charges against him and he shall be advised that he is entitled to a public hearing upon said charges at a date to be fixed in such notice. The notice shall be in writing and shall be given at least ten (10) days before the date fixed therein for the hearing. For the purpose of conducting such hearings the county superintendent of education or the superintendent of the municipal separate school district shall have the same power as a justice of the peace to issue subpoenas for witnesses and to compel their attendance and the giving of evidence by them. From the decision made at said hearing the superintendent, principal or teacher and those persons opposed to such principal, superintendent or teacher shall be allowed an appeal to the State Board of Education and for the purpose of such appeal either oral or written statements, under oath, of the facts may be made by the county superintendent of education or the municipal separate school district superintendent and the other interested parties. Any party aggrieved by the said ruling of the State Board of Education may effect an appeal therefrom to the chancery court in the same manner as appeals from the State Education Finance Commission. When a superintendent, principal or teacher is removed as provided in this section the county superintendent or the municipal separate school district superintendent shall notify the board of trustees of the school district involved and a superintendent, principal or teacher shall be selected to fill such vacancy in the manner otherwise provided in this chapter.
      “The governing authorities of every school district in this state are hereby prohibited from denying employment or reemployment to any person as a superintendent, principal or teacher, as defined in Section 37 -19 -1, or as a nonin-structional personnel, as defined in Section 37-9-1, for the single reason that any eligible child of such person does not attend the school system in which such superintendent, principal, teacher, or noninstructional personnel is employed.
      “Section 2. This act shall take effect and be in force from and after its passage.”


author: LEE, Justice, for the Court: ROBERTSON, Presiding Justice, for the court:

text:
    Curtis QUINN v. Gerald BRANNING, Justice Court Judge of District # 2 of Neshoba County, Mississippi and State of Mississippi.
    No. 52790.
    Supreme Court of Mississippi.
    Aug. 19, 1981.
    Rehearing Denied in Part and Granted in Part Oct. 15, 1981.

      Laurel G. Weir, Thomas L. Booker, Philadelphia, for appellant.
    Bill Allain, Atty. Gen., by Karen Gilfoy, Asst. Atty. Gen., Jackson, for appellees.
    Before ROBERTSON, P. J., and WALKER and LEE, JJ.
   LEE, Justice, for the Court:

Curtis Quinn was convicted in the Justice Court of the Second District of Neshoba County, Mississippi, for a violation of Mississippi Code Annotated section 97-15-13 (Supp.1980). Within the time provided by law, he filed a petition for writ of certiorari in the Circuit Court of Neshoba County, praying that a writ of certiorari issue to Gerald Branning, Justice Court Judge of said district, requiring him to certify the record and all proceedings in said cause to the circuit court. That court, Honorable Marcus D. Gordon, presiding, denied the writ and dismissed the petition, and Quinn has appealed to this Court.

The sole question presented is whether or not Mississippi Code Annotated section 97-15-13 (1972) is a local and private law in violation of Section 87 of the Mississippi Constitution (1890) and is unconstitutional in that it is vague and indefinite. Prior to 1974, Section 97-15-13 provided the following:

If any person shall be guilty of hunting or racing in or on, or shooting in, on, or across any street or public highway, he shall, on conviction thereof, be fined not more than five hundred dollars ($500.00) or imprisoned not longer than ninety (90) days in the county jail.
If any person shall willfully shoot any firearms or hurl any missile at any traffic light, highway marker, or other sign for the regulation of street or highway travel, such person, upon conviction, shall be fined not more than fifty ($50.00) or imprisoned not longer than thirty (30) days in the county jail.
It shall be the duty of all sheriffs, deputy sheriffs, constables and peace officers of this state to enforce the regulations as set out in this section. Game wardens are hereby authorized to enforce the prohibitions of this section against hunting in or on and shooting in, on or across any street or public highway.

The said section was amended only as to the first paragraph by Chapter 569, General Laws of 1974, effective April 24, 1974, which amendment follows:

If any person shall be guilty of hunting or racing in or on, or shooting in, on or across any street or public highway, or railroads within the boundaries of a hunting club unless permission is granted within a county wherein highway 15 and 120 intersect, he shall, on conviction thereof, be fined not more than five hundred dollars ($500.00) or be imprisoned not longer than ninety (90) days in the county jail.

The appellant contends that the words “unless permission is granted within a county wherein highway 15 and 120 intersect” makes the section local and private in nature and is vague and indefinite, thereby rendering the section unconstitutional.

It is common knowledge and we take judicial notice of the fact that Mississippi State Highway 15 and Interstate Highway 120 intersect only in Newton County, Mississippi. The violation charged and the conviction of appellant occurred in District # 2, Neshoba County, Mississippi. Therefore, the provision which the appellant complains about does not relate to or affect him. We have held that it is the Court’s duty in passing on the constitutionality of a statute to separate the valid from the invalid part, if this can be done, and to permit the valid part to stand unless the different parts of the statute are so intimately connected with and dependent upon each other as to warrant a belief that the legislature intended them as a whole, and that if all cannot be carried into effect, it would not have enacted the residue independently. Lovorn v. Hathorn, 365 So.2d 947 (Miss.1979); Wilson v. Jones County Board of Supervisors, 342 So.2d 1293 (Miss.1977).

In Lovorn, supra, the question of the constitutionality of Mississippi Code Annotated section 37-7-203 (1972) as amended, was under consideration by this Court. The suit involved the election of trustees in the Louisville Municipal Separate School District and the offensive part of the statute provided “. . . in any county in which a municipal separate school district embraces the entire county in which Highways 14 and 15 intersect, one trustee shall be elected from each supervisors district”. We said:

We hold that the part of said statute under consideration here which reads “in which Highways 14 and 15 intersect” is unconstitutional, that such offensive language be stricken from the act and that the remaining portion of the statute is constitutional. We further hold that the chancellor erred in finding the entire portion of the statute to be unconstitutional and the decree is reversed and judgment entered here on said question. (365 So.2d at 950)

We now hold in the case sub judi-ce that the part of Mississippi Code Annotated section 97-15-13 (1972), as amended, which reads “unless permission is granted within the county wherein highway 15 and 120 intersect” is unconstitutional, that such offensive language be stricken from the act and that the remaining portion of the statute is constitutional. We note, however, that the 1974 amendment limits the violation to streets, public highways and railroads within the boundaries of hunting clubs in the state, and that the law previous thereto making it a violation to hunt or race on, or shoot on or across any street or public highway in the state of Mississippi has been completely changed. Extending the coverage of the act to those areas enumerated before the 1974 amendment may be accomplished only by the Mississippi State Legislature.

There being no error in the judgment below, it is affirmed.

AFFIRMED.

PATTERSON, C. J., SMITH and ROBERTSON, P. JJ., and SUGG, WALKER, BROOM, BOWLING and HAWKINS, JJ., concur.

ON PETITION FOR REHEARING

ROBERTSON, Presiding Justice, for the court:

The Petition for Rehearing is denied in part and granted in part and the appellant discharged.

In our opinion in the case at bar we held that MCA § 97-15-13 (Supp. 1980), after deleting this unconstitutional portion “unless permission is granted within a county wherein highway 15 and 120 intersect,” is constitutional.

We did state, however, in our opinion: “We note, however, that the 1974 amendment limits the violation to streets, public highways and railroads within the boundaries of hunting clubs in the state, and that the law previous thereto making it a violation to hunt or race on, or shoot on or across any street or public highway in the state of Mississippi has been completely changed. Extending the coverage of the act to those areas enumerated before the 1974 amendment may be accomplished only by the Mississippi State Legislature.”

On Petition for Rehearing, appellant, Curtis Quinn, has called our attention to the fact that, in view of the above caveat in our opinion, the affidavit against Quinn does not state an offense under the statute. The affidavit charged Quinn with “unlawfully hunting or shooting on public road with loaded gun”. In our opinion, the affidavit does not charge an offense under MCA section 97-15-13 (Supp. 1980), which, after deleting the unconstitutional part, would read:

“If any person shall be guilty of hunting or racing in or on, or shooting in, on or across any street or public highway, or railroads within the boundaries of a hunting club, he shall, on conviction thereof, be fined not more than five hundred dollars ($500.00) or be imprisoned not longer than ninety (90) days in the county jail.”

The Petition for Rehearing is granted in this respect, and since the affidavit does not charge an offense under the statute the conviction is reversed and the appellant discharged.

Denied in part, granted in part, conviction reversed and appellant discharged.

All Justices concur.


text:
    Barbara Jean BREWER v. Vivian R. PAYNE.
    No. 52877.
    Supreme Court of Mississippi.
    Sept. 9, 1981.
    Rehearing Denied Nov. 4, 1981.
    John Booth Farese, Farese, Farese & Farese, Ashland, Robert Q. Whitwell, Jack R. Jones, III, Taylor & Whitwell, Southa-ven, for appellant.
    D. Pace Branan, Austin & Branan, South-aven, Kenneth R. Shuttleworth, John W. Leach, Memphis, Tenn., for appellee.
   Appeal from Circuit Court, DeSoto County; Andrew C. Baker, Judge.

Before PATTERSON, C. J., and SUGG and BROOM, JJ.

AFFIRMED.


text:
    The WESTERN CASUALTY & SURETY COMPANY, et al. v. R. L. YELVERTON.
    No. 52783.
    Supreme Court of Mississippi.
    Sept. 16, 1981.
    Rehearing Denied Nov. 4, 1981.
    William H. Cox, Jr., Cox & Dunn, John H. Downey, Wells, Downey & Wicker, Jackson, for appellants.
    John M. Roach, Gary K. Jones, Daniel, Coker, Horton & Bell, Jackson, for appellee.
   Appeal from Circuit Court, Hinds County; Dan M. Lee, Judge.

Before SMITH, P. J., and BOWLING and HAWKINS, JJ.

REVERSED & DISMISSED as to Cooper Import. REVERSED as to Western Casualty on the issue of damages alone unless Dr. Yelverton shall within fifteen days after receipt of this Court’s mandate in the trial court, enter a remittitur in the amount of $5,800, reducing the judgment to $4,200. In the event the remittitur is entered, the judgment will be affirmed in the amount of $4,200.

PATTERSON, C. J., ROBERTSON, P. J., and SUGG, WALKER and BROOM, JJ., concur.

LEE, J., took no part.


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    Matthew MORTON v. BOARD OF ELECTION COMMISSIONERS OF The CITY OF MERIDIAN, Mississippi.
    No. 53230.
    Supreme Court of Mississippi.
    Sept. 16, 1981.
    Rehearing Denied Nov. 4, 1981.
    Thomas Y. Minniece, Singley, Minniece, Hamill & Wilson, Meridian, for appellant.
    Lawrence W. Rabb, Meridian, for appel-lee.
   Appeal from Circuit Court, Lauderdale County; Lester F. Williamson, Judge.

Before SMITH, P. J., and WALKER and BOWLING, JJ.

AFFIRMED.


text:
    Donna Gail Purvis THOMAS v. Alvin L. PURVIS, Jr., et al.
    No. 52886.
    Supreme Court of Mississippi.
    Sept. 30, 1981.
    Rehearing Denied Nov. 4, 1981.
    Laurel G. Weir, Thomas L. Booker, Philadelphia, for appellant.
    Harold W. Davidson, A. R. Wright, Jr., Carthage, for appellees.
   Appeal from Chancery Court, Leake County; G. M. Case, Chancellor.

Before SMITH, P. J., and WALKER and BOWLING, JJ.

REVERSED AND REMANDED.

PATTERSON, C. J., ROBERTSON, P. J., and SUGG, BROOM, LEE and HAWKINS, JJ., concur. ’


text:
    Ronald McCULLOUGH and Ronnie W. McCullough v. Ronald J. ARTIGUES.
    No. 52946.
    Supreme Court of Mississippi.
    Sept. 30, 1981.
    Rehearing Denied Nov. 4, 1981.
    L. Kenneth Krogstad, Holleman & Krog-stad, William P. Wessler, Gulfport, for appellant.
    John A. Scafide, Jr., Fabre, Genin & Scafide, Bay St. Louis, for appellee.
   Appeal from Chancery Court, Hancock County; Wm. L. Stewart, Chancellor.

Before ROBERTSON, P. J., and BROOM and HAWKINS, JJ.

AFFIRMED.


author: SUGG, Justice, for the Court:

text:
    Mary Elizabeth REYER v. HARRISON COUNTY DEPT. OF PUBLIC WELFARE.
    No. 52751.
    Supreme Court of Mississippi.
    Sept. 30, 1981.
    Rehearing Denied Nov. 4, 1981.
    Cecil Burton Jones, Jr., Stanley L. Taylor, Jr., Biloxi, for appellant.
    James E. Welch, Waynesboro, Donald G. Barlow, Barlow & Jones, Joe Gentile, Robert Jenkins, Jackson, for appellee.
    Before PATTERSON, C. J. and SUGG and BROOM, JJ.
   SUGG, Justice, for the Court:

The Harrison' County Department of Public Welfare filed a petition to terminate parental rights under section 93-15-1 Mississippi Code Annotated (1972) which follows:

Whenever the parent or parents of a child have abandoned or deserted such child, or are mentally, morally, or otherwise unfit to rear and train such child, any person, agency or institution may file in the chancery court of the county in which either of the parents reside or can be found, or in the county in which the child is found, a petition to have the parental rights of said parent or parents terminated. Before a petition is filed, authority must be granted by the chancery court or chancellor in vacation.

The parents involved in this case have seven children. Two of the children were placed for adoption a number of years ago and the five remaining children have been placed in foster care by the Harrison County Department of Public Welfare. The five children were adjudicated to be neglected children within the meaning of the Family Court Act of 1964 and custody was awarded to the Harrison County Department of Public Welfare for placement in foster care. Three of the children were placed in foster care in 1970 and two in 1978. All five children remain in foster care at this time.

The petition sought to terminate the parental rights of only four of the children, but not as to the oldest child. After hearing the evidence the chancellor found:

There has been no abandonment, nor has there been a desertion and both of you all have proven that today. But then the statute says, ‘But if they are mentally, morally or otherwise unfit to rear or train said children then the Court may terminate all parental rights of said parent or parents.’ I’m going to grant the Petition to Terminate Parental Rights as prayed for by the Department of Public Welfare.

We are unable to ascertain from the chancellor’s finding of fact whether he terminated parental rights because the parents were mentally unfit, morally unfit, or otherwise unfit to rear and train their children.

The proof shows that the mother of the children is severely retarded and the father functions at a higher level in problem solving capacity but below the average range. The clinical psychologist who evaluated the parents stated that the father would have difficulty coping in a regular educational setting but would function more effectively in a slow learning setting or a setting where he was considered educably retarded. The psychologist found the father’s best skill was his memory and that he had a good capacity with numbers.

With reference to moral unfitness, no evidence was introduced to show that the parents were morally unfit to rear their children.

The other ground mentioned in section 93-15-1 for terminating parental rights is that the parents “are otherwise unfit to rear and train such child.” The parents were divorced before 1978 and the two youngest children were in the custody of the mother. The father provided child support in the amount of $125 every two weeks and was punctual in making these payments. The mother testified: “You can depend on him.”

When the first three children were placed in the custody of the Welfare Department, efforts were made by the Department to have the parents attend “Parenting Classes.” The evidence shows that the mother was uncooperative, but the father could not attend because he was working regularly each day and no classes were held at a time when he was not working. There was proof that the home was filthy and that the parents did not correct this situation. There was proof also that the parents had not contributed to the support of the children at any time after they were placed in the custody of the Welfare Department; however, no effort was made in any legal proceeding to compel the parents to support their children. At the time of the hearing the mother was unemployed, but the father was employed and earning $154 per week.

If we are to sustain the decree of the chancellor terminating parental rights, it can only be done on the mental unfitness of the parents to rear their children. A strong case was presented that the mother was mentally unfit to rear the children but the proof is not sufficient to show that the father was mentally unfit to rear the children. The proof shows that the parents visited with the children while in foster care, that both parents love their children, are concerned about their welfare, and both want custody of the children.

Two other aspects of the case deserve comment. The Department seeks to terminate the parental rights as to four children but does not seek to terminate the parental rights as to the oldest child who is about the age of 14 years. The question looms large, why terminate the parental rights as to some of the children but not to all? We see no justifiable reason for this arbitrary position and none was developed in the evidence in this case. Also, there was no proof that the visitation by the parents is detrimental to the best interest of the children, nor was any reason given for terminating the parental rights other than the fact that the children had been in foster care for a long period of time.

We are of the opinion that the proof does not rise to the level that would justify terminating the parental rights under section 93-15-1. We therefore reverse and render.

The constitutionality of section 93-15-1 was raised, but we do not address this question because the statute was repealed in 1980 and a new statute1 dealing with termination of parental rights was enacted.

REVERSED AND RENDERED.

PATTERSON, C. J., SMITH and ROBERTSON, P. JJ., and WALKER, BROOM, LEE, BOWLING and HAWKINS, JJ., concur.

      . Sections 93-15-1 through 93-15-11 were repealed by Chapter 485 Mississippi General Laws of 1980. The new statute appears in the 1980 supplement to the Mississippi Code of 1972 as Sections 93-15-101 through 93-15-111, and sets forth in precise language the grounds for termination of parental rights, and suggests that permanent alternatives should be considered which will end the supervision of children by the Department of Public Welfare.


text:
    Dennis WILEY v. G. B. KEEN.
    No. 53044.
    Supreme Court of Mississippi.
    Sept. 30, 1981.
    Rehearing Denied Nov. 4, 1981.
    Leon Mangum, Decatur, for appellant.
    Laurel G. Weir, Thomas L. Booker, Philadelphia, for appellee.
    Before ROBERTSON, P. J., and BROOM and HAWKINS, JJ.
   HAWKINS, Justice, for the Court:

Dennis Wiley appeals from a judgment of $500.00 against him in the Circuit Court of Newton County in favor of G. B. Keen for killing Keen’s dog.

The only issue we need address on this appeal is whether or not the circuit judge erred in granting a peremptory instruction on liability in favor of the plaintiff. We believe this issue should have been submitted to the jury, and therefore, reverse and remand.

Mr. Wiley operated a dairy farm and had some calves sick with pneumonia in a pen near his house. According to Wiley, some dogs, which he thought were wild, were in the pen disturbing the calves. He began shooting at them from a distance of about 75 yards, and continued shooting as the dogs were running away. He testified that he shot to scare the dogs and could not tell when Mr. Keen’s dog was hit, or if the dog was hit at all. Within twenty-four hours thereafter some of his calves had died and Mr. Wiley could not say with certainty that the dogs’ disturbance had caused the loss.

As we have stated on numerous occasions in considering the request for a peremptory instruction, “all evidence with reasonable inferences flowing therefrom must be accepted as true in favor of the party against whom the peremptory instruction is requested, all evidence in conflict therewith is disregarded, and, if such evidence is sufficient to support a verdict for the party against whom the peremptory instruction is requested, then it should be denied.” Pollan v. Ill. Central Gulf R. R. Co., 378 So.2d 659, 660 (Miss.1980); Paymaster Oil Co. v. Mitchell, 319 So.2d 652 (Miss.1975). Consequently, we have only detailed Mr. Wiley’s testimony herein, and do not deem it necessary to further detail the evidence. A jury issue was made as to whether Mr. Wiley intentionally or recklessly killed the dog without just cause.

Dogs are a special breed, capable of arousing the strongest of emotions in mankind. It is also a matter of common knowledge among cattlemen and dairymen that “wild dogs” harass and kill cattle.

The propriety of Mr. Wiley’s conduct under the circumstances is a matter which should have been passed upon by the fellow citizens of the plaintiff and defendant in Newton County. We have said a circumstantial evidence case should rarely be taken from the jury. The same observation, albeit for a different reason, can be made in a case of shooting a dog.

Times change, but we believe that on retrial the cases of Hull v. Scruggs, 191 Miss. 66, 2 So.2d 543 (1941), and Hodges v. Causey, 77 Miss. 353, 26 So. 945 (1899), will be of some benefit to the court and counsel in properly instructing the jury.

REVERSED AND REMANDED.

PATTERSON, C. J., SMITH and ROBERTSON, P. JJ., and SUGG, WALKER, BROOM, LEE and BOWLING, JJ., concur.


text:
    R. L. NETTERVILLE v. MISSISSIPPI STATE BAR, et al.
    Confidential Misc. No. 62.
    Supreme Court of Mississippi.
    Sept. 30, 1981.
    Rehearing Denied Nov. 4, 1981.

      R. L. Netterville, pro se, Natchez, for appellant.
    Jimmy L. Miller, Curtis Coker, Jackson, Leonard B. Melvin, Jr., Laurel, for appellee.
   EN BANC.

The Court sitting en banc, considered the petition of Honorable R. L. Netterville, member of the Mississippi State Bar, asking this Court to require said State Bar to pay, in addition to actual court costs accrued and taxed in disciplinary proceedings brought by said State Bar against petitioner [said proceedings having been dismissed by this Court on appeal, in Netterville v. Mississippi State Bar, 397 So.2d 878 (Miss.1981)] all travel expenses incurred by him in connection with his defense in said proceedings plus attorney’s fees, telephone, secretarial, xerox and other expenses incurred in the premises, and the response of the said State Bar thereto.

In order that complaints charging an attorney with professional misconduct may be brought without fear of exposure of a complainant to liability for damages in the event the complaint is dismissed, Mississippi Code Annotated section 73-3-345 (Supp. 1980) provides:

All complainants filed pursuant hereto shall* be absolutely privileged, and no lawsuit predicated thereon may be instituted, and each person, firm, association or legal entity filing such a complaint shall be immune from any civil suit predicated thereon. The board of commissioners, the committee on complaints, the executive director, the complaint counsel, the complaint tribunals, and their assistants, staff and employees shall be immune from civil suit for any conduct arising out of the performance of their official duties. Every person shall be immune from civil suit for all of his sworn or written statements made or given in the course of any investigation, investigatory hearing, formal hearing or review proceedings held and conducted under these disciplinary rules.

See also Netterville v. Lear Siegler, Inc., 397 So.2d 1109 (Miss. 1981).

In Matter of Mississippi State Bar, 361 So.2d 503 (Miss. 1978), this Court noted that the role of the Mississippi State Bar with respect to the consideration of complaints against members of the Bar is to provide an official investigation thereof and a tribunal for the trial and disposition of such complaints as provided by Mississippi Code Annotated section 73-3-301 et seq. (Supp. 1980).

Confidentiality, for the protection of an attorney against whom a complaint is lodged, is a major objective of the procedure. See Mississippi Code Annotated section 73-3-343 (Supp. 1980).

It has been uniformly held by this Court that, in civil proceedings, attorney’s fees and expenses of a successful litigant (other than statutory court costs as taxed) cannot be recovered by such litigant from his adversary in the absence of malice, fraud or the equivalent thereof. Such expenses are, of course, not recoverable from the trial court (or the state) by one tried upon a criminal charge and acquitted.

In Bellefonte Insurance Co. v. Griffin, 358 So.2d 387, 391 (Miss. 1978) this Court said:

As to attorney’s fees, the rule in the absence of statute is that they are not recoverable unless the facts are of such gross or willful wrong as to justify the infliction of punitive damages. Cooper v. U.S. Fidelity & Guaranty Co., 186 Miss. 116, 188 So. 6 (1939); Yazoo & M.V.R. Co. v. Consumers’ Ice & Power Co., 109 Miss. 43, 67 So. 657 (1915). As there is no applicable statute and because we are of the opinion the trial court did not err in denying punitive damages, it follows that an award of attorney’s fees would not have been proper.

While the petition here under consideration appears to present a question of first impression in Mississippi, in other jurisdictions the rule appears to be that an attorney, tried upon charges preferred against him as in this case, where the tribunal finds the charges have been sustained and imposes a disciplinary judgment upon him, that the attorney, in such an event, may be required to pay the actual expenses of the State Bar reasonably incurred in the investigation and prosecution of the case, exclusive of attorney’s fees. See In re Banks, 284 Or. 691, 588 P.2d 34 (1978).

In Matter of Mississippi State Bar, 361 So.2d 503, 506 (Miss. 1978), this Court said:

C) The Complaint Tribunal may award unto the Bar, as costs of court, the costs and expenses of the Bar connected with the litigation as justice and the circumstances may require. The costs and expenses shall be itemized, filed of record, and tendered to the accused attorney within ten (10) days after the decree of the Complaint Tribunal becomes final. The accused may controvert any item claimed as costs or expenses within ten (10) days after receiving a statement of the costs and expenses.
D) Upon appeal of any decree of a Complaint Tribunal, this Court may award unto the Bar, as costs of court, such additional costs and expenses of the Bar connected with the appeal as justice and the circumstances may require. The additional costs and expenses shall be itemized, filed of record, and tendered to the accused attorney within ten (10) days after the decree of this Court becomes final. The accused may controvert any item claimed as additional costs and expenses within ten (10) days after receiving a statement of the costs and expenses.
E) The Committee on Complaints shall impose upon any attorney disciplined by it an investigation fee of not less then TEN DOLLARS ($10.00) and no more than the actual and reasonably necessary expenses of the investigation, said bill of expenses to be itemized and tendered to the attorney prior to or at the time discipline is imposed; or, if the matter is referred for the filing of a Formal Complaint, said bill of expenses shall be incorporated therein and when so incorporated upon affidavit from the Bar’s Executive Director, the itemization shall be prima facie as to the amount due and may be allowed in whole or in part as provided by the foregoing Paragraphs (C) and (D).

The Mississippi State Bar, through its duly constituted officials, is mandated by law to receive, investigate and dispose of complaints filed against its members. Obviously, it would severely impede, and possibly destroy, the attainment of the paramount objective of the law, that is, the hearing and disposition of complaints against members of the Bar, if, when a member has been tried and the charges against him dismissed, he might then recover from the State Bar (in addition to court costs as taxed) attorney’s fees, travel and all other out-of-pocket expenses he might have incurred, in this case stated by petitioner to have been $30,402.19.

It is suggested that the rule permitting recovery of its expenses by the State Bar from an attorney against whom a disciplinary judgment had been pronounced, (exclusive of attorney's fees) and denying an attorney so charged who is exonerated, the right to recover in like manner from the State Bar, is unfair. The State Bar, in providing the complaint counsel and the complaint tribunal is not the adversary party, and Mississippi Code Annotated section 73-3-345 (Supp. 1980), supra, protects the complainant, who made the charges, as well as the State Bar, its officers and employees, and precludes any recovery against them, even though the charges may be dismissed.

The Standards For Lawyer Discipline And Disability Proceedings, approved by the House of Delegates of the American Bar Association on February 13, 1979, do not authorize recovery of expenses from a lawyer who is charged with professional misconduct if the charges eventually have been dismissed. Section 6.13 provides:

6.13 Costs. The court may require a respondent to pay the costs of the proceedings, other than proceedings for transfer to and from disability inactive status where the charges are sustained.

The commentary on this provision is as follows:

Whenever a respondent is found to have engaged in misconduct warranting the imposition of discipline, he should be required to reimburse the agency for the costs of the proceedings, other than attorney fees.
While fairness would seem to indicate that a respondent should also be reimbursed if formal charges are not proved, that practice would cast doubt upon every adjudication by the agency that charges had been established. A respondent might conclude that the finding was prompted by a desire to avoid having to pay the costs of the proceedings to the respondent. In order to assure that the findings of the agency are fair in fact and are perceived to be fair, the Standard does not authorize collection of costs by respondents exonerated of the charges against them.

We have concluded that payment of statutory court costs by the Mississippi State Bar is all that can be required and that the petition for the award of attorney’s fees, travel and other out-of-pocket expenses incurred by the petitioner cannot be sustained. Petition is, therefore, dismissed with prejudice.

DISMISSED WITH PREJUDICE.

All Justices concur.