author: CHIASSON, Judge. EDWARDS, Judge,

text:
    John Richard CUMMINGS and Catherine Radigan Cummings v. SKEAHAN CORPORATION, J. Peyton Parker, Jr., and XYZ Insurance Company.
    No. 14288.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 12, 1981.
    Dennis John Hauge, Baton Rouge, for John Richard Cummings et al.
    Robert Morrison, Denham Springs, for Skeahan Corp.
    J. Peyton Parker, pro se.
    Before CHIASSON, EDWARDS and LEAR, JJ.
   CHIASSON, Judge.

Plaintiffs-appellants appeal the judgment of the trial court sustaining defendant J. Peyton Parker, Jr.’s exception of prescription and dismissing their suit against him.

No testimony was taken on the hearing of the exception. Defendant-appellee Parker contends a stipulation was entered into at the hearing but no stipulation is contained in the record before us.

Appellants’ petition against Parker alleges they purchased property in reliance upon a title opinion issued and rendered by Parker, an attorney with whom they contracted for said title opinion. Appellants further aver the title opinion warranted valid and merchantable title in plaintiff except for the mortgage they had granted on the property when, in fact, the property they purchased was also encumbered by a mineral lease. Plaintiffs finally aver that defendant Parker breached his contractual duty arising from the attorney-client relationship. Plaintiffs attached to their petition the Certificate of Title and the statement therefor rendered by defendant Parker.

Defendant Parker filed an exception of prescription of one year based on his allegation that plaintiffs had knowledge of the existence of the mineral lease for more than one year before suit was filed by plaintiffs.

In seeking an affirmance of the trial court’s judgment, Parker argues that a malpractice action against an attorney prescribes one year from the date the professional work is performed or one year from the date plaintiff becomes aware of the action complained of and cites two cases supporting this argument, Phelps v. Donaldson, 243 La. 1118, 150 So.2d 35 (1963) and Steel v. Aetna Life & Casualty, 304 So.2d 861 (La.App. 3rd Cir. 1974). Both of these cases are medical malpractice actions, the holding of both being that once the time limitation for a delictual action has passed, the plaintiff cannot maintain a contractual action against a physician unless that physician has warranted a particular result. In the recent medical malpractice case of Sciacca v. Polizzi, 403 So.2d 728 (1981), the Supreme Court followed the Phelps v. Donaldson standard, supra, and held that “(W)hen a patient is injured by the negligence of his physician, his action against that physician is one in tort, unless the physician has contracted with the patient for a specific cure or result. The action is essentially one for injuries caused by negligence, and the statute of limitations governing negligence actions is the applicable statute regardless of the form of action by which liability is sought to be enforced. 61 Am.Jur.2d, Physicians, Surgeons, etc., § 316. See also Prosser, Law of Torts, Chapter 16, ‘Tort and Contract’, p. 613.” Even if these medical malpractice cases could be analogized to legal malpractice, which we do not so hold, the pleadings in the case before us would place it within the exception to the general rule. In Corceller v. Brooks, 347 So.2d 274 (La.App. 4th Cir. 1977), the court stated: “Warranty or guarantee by an attorney of a particular result of a litigious claim is foreign to the nature of the legal profession.” However, the attorney in our case was not hired to represent plaintiffs in a litigious claim but rather only to render a title opinion, the correctness of which can be warranted or guaranteed.

The Corceller case, supra, can be interpreted as holding that a legal malpractice action is sustainable in tort only because of the following language contained therein:

“* * * Though it is true that a contractual agreement between Corceller and Brooks established the attorney-client relationship, this contract of employment merely gave rise to the attorney’s legal duty ‘to exercise at least that degree of care, skill, and diligence which is exercised by prudent practicing attorneys in his locality’. Ramp v. St. Paul Fire and Marine Insurance Company, 263 La. 774, 269 So.2d 239, 244 (1972). * * *”

While there may be merit to this argument, it is in conflict with prior holdings of this court.

We have already held that a malpractice action against an attorney partakes of elements both ex contractu and ex delicto. Jackson v. Zito, 314 So.2d 401 (La.App. 1st Cir. 1975), writ denied 320 So.2d 551, 553 (La.1975) and Vessel v. St. Paul Fire & Marine Insurance Co., 276 So.2d 874 (La. App. 1st Cir. 1973). See also Ambrose v. Roberts, 393 So.2d 132 (La.App. 3rd Cir. 1980), writ denied 394 So.2d 1234 (La.1980) and Johnson v. Daye, 363 So.2d 940 (La. App. 3rd Cir. 1978). The plaintiff can file suit either as an action ex delicto or as an action ex contractu. Under the pleadings filed in the present case, the claim is specifically alleged for damages on the basis of a breach of contract only. The damage claim is therefore prescribed in ten (10) years under La.C.C. art. 3544.

The trial court erred in sustaining the one year prescriptive plea in a case based upon a contract. On the ten year prescription period, as before stated, defendant Parker offered no evidence at the hearing on the exception to substantiate such a plea.

For these reasons, we reverse and remand the case to the trial court for further proceedings in accordance with law. Costs of this appeal are to be borne by defendant, J. Peyton Parker, Jr. All other costs are to await a final determination on the merits.

REVERSED AND REMANDED.

EDWARDS, J., concurs and assigns reasons.

EDWARDS, Judge,

concurring.

This court’s decision in Jackson v. Zito, 314 So.2d 401 (La.App. 1st Cir. 1975), has been cited for the proposition that a legal malpractice action against an attorney may be maintained in contract as well as in tort. See Ambrose v. Roberts, 393 So.2d 132 (La.App. 3rd Cir. 1980); and Johnson v. Daye, 363 So.2d 940 (La.App. 3rd Cir. 1978).

In an earlier decision, Vessel v. St. Paul Fire & Marine Ins. Co., 276 So.2d 874 (La.App. 1st Cir. 1973), this court had occasion to consider the nature of a malpractice claim against an attorney. In Vessel, we stated:

“. . . we note that there can be a serious dispute between an individual and an attorney relating solely to. the issue of whether or not there is a contract creating a client-attorney relationship. Damages growing out of a breach of any obligation thereunder would be treated as any other case involving a breach of contract. However, when there is no dispute as to the client-attorney relationship and the issue is solely one of whether the conduct of the attorney thereunder constituted malpractice, i. e., failed to meet the standard of professional expertise as required under the circumstances, it is an action contemplated by C.C, Article 2315_”

Our decision in Vessel indicates that a common, ordinary attorney malpractice action is based on tort rather than contract. Jackson v. Zito, supra, did not discuss or even mention the holding in Vessel.

If the present case presented solely a claim of substandard performance by an attorney, which Vessel held is based in tort, I submit that this court would be compelled to resolve the apparent contradiction between Jackson and Vessel. This court need not resolve that issue now, however, because the plaintiff’s cause of action in this case is clearly grounded in contract under the standard of either case.

Defendant, Parker, urges that this court apply the Supreme Court’s recent decision in Sciacca v. Polizzi, 403 So.2d 728 (1981), involving medical malpractice, to this case. Parker contends that the application of Sciacca would result in application of the one year tort prescriptive period to plaintiffs’ claim. However, Sciacca recognizes that the ten year prescriptive period applicable to contracts will apply in some malpractice cases — those where the defendant has contracted for a specific cure or result.

If the Sciacca rule were applied to legal malpractice, presumably the same exception would exist in that area as well. The pleadings in this case place it within that exception. Defendant Parker certified to plaintiffs that, with certain enumerated exceptions, the property they were buying was free from any encumbrances. Plaintiffs have alleged that there is an encumbrance upon the property in addition to those listed by Parker in the certificate of title. Defendant’s issuance of a certificate of title is analogous to a physician’s warranty of a specific cure or result.

Even if this court were to overrule Jackson v. Zito, supra, and apply the rule of Sciacca to legal malpractice claims, this case would nevertheless fall within the exception contained in Sciacca. For this reason, we are not required to determine the effect which Sciacca v. Polizzi, supra, and our own earlier decision in Vessel v. St. Paul Fire & Marine Ins. Co., supra, will have upon the continued vitality of Jackson v. Zito.

      . Application of the Sciacca rule to legal malpractice claims would be consistent with the idea expressed in Vessel v. St. Paul Fire & Marine Ins. Co., supra, that claims for attorney malpractice ordinarily have their basis in tort except in unusual circumstances.


source: Caselaw Access Project

author: LEAR, Judge.

license: Public Domain

text:
    Ossie BROWN, District Attorney v. The EAST BATON ROUGE PARISH SCHOOL BOARD, etc. The LEAGUE OF WOMEN VOTERS OF BATON ROUGE, INC. v. The EAST BATON ROUGE PARISH SCHOOL BOARD, et al.
    Nos. 14292, 14293.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 12, 1981.
    Rehearing Denied Nov. 23, 1981.

      Ossie B. Brown, Dist. Atty., Robert H. Hester, Asst. Dist. Atty., Baton Rouge, for Ossie Brown.
    David Price, Baton Rouge, for amicus curiae.

      John F. Ward, Jr. and Robert L. Ham-monds, Baton Rouge, for East Baton Rouge Parish School Bd., et al.
    Stephen M. Irving, Baton Rouge, for League of Women Voters of Baton Rouge, Inc.
    Before CHIASSON, EDWARDS, and LEAR, JJ.
   LEAR, Judge.

These consolidated appeals arise from two suits brought against the East Baton Rouge Parish School Board (the Board) and its Superintendent Search and Selection Committee alleging their violation of the Louisiana Open Meetings Law (LSA-R.S. 42:4.1, et seq.). These suits, brought by Ossie Brown, District Attorney for the Nineteenth Judicial District (Brown), and The League of Women Voters of Baton Rouge, Inc. (The League), concern the same factual situations and legal issues and were consolidated and tried together. We will therefore discuss these appeals together.

After the resignation of Dr. Clyde Lindsey, Superintendent of Public Schools in East Baton Rouge Parish, the Board formed a “Superintendent Search and Selection Committee” (the Committee), consisting of all twelve members of the East Baton Rouge Parish School Board and Dr. George Leon Netterville, a member of the East Baton Rouge Parish Bi-Racial Committee, in order to select a new superintendent. The Committee thereafter advertised for and received applications from a number of people, forty-one of which were deemed by them to meet the published criteria. The Committee thereafter began considering these forty-one applications.

On March 18, 1980, following its open public meeting, the Committee went into executive session, purportedly to discuss the character, competence and physical and mental health of the forty-one applicants. Immediately following its executive session, the Committee reconvened in open public session and nominated by name and voted to give further consideration, including personal interviews, to ten of the forty-one applicants.

By letter dated March 18,1980, above the signature of George H. Richard, as chairman of the Committee, the ten applicants were informed that they would receive “additional consideration” and would be asked to return for a one hour personal interview with the Committee. The thirty-one other applicants received a letter, dated March 19, 1980, and signed by George H. Richard, as chairman of the Committee, informing them that “the Committee’s selection of finalists does not include your application.”

On March 31, 1980, the Committee again met in open public session, and thereafter, with the exception of three of its members, Robert C. Crawford, Michael McCleary, and George H. Richard, the Committee convened itself in executive session. This executive session was again for the purported reason of further discussing the character, competence and physical and mental health of the ten applicants who had been given further consideration. Again, after its executive session, the Committee held an open public session in which the Committee voted to give further consideration to four named applicants.

Shortly thereafter the six applicants not included in the final four were notified by telephone of the Committee’s action.

On April 3, 1980, pursuant to a written complaint filed with him by the president of The League, plaintiff Brown filed suit in order to have the court declare the actions of the Board on March 18, 1980, and March 31, 1980, as represented by the Committee, void as provided in LSA-R.S. 42:9 and LSA-R.S. 42:11 A(4). On April 7,1980, The League, through its own attorney, filed suit against the Board seeking a writ of mandamus ordering the Board to comply with the provisions of LSA-R.S. 42:4.1, et seq., a judgment declaring that the actions taken by the Board and/or the Committee in an “illegal executive session” be set aside and injunctive relief prohibiting the Board from holding closed meetings in violation of LSA-R.S. 42:4.2, et seq.

Subsequently, The League amended its petition to allege that an additional closed meeting of the Committee took place on or about April 10 or 11, 1980, at the office of committee member Randall Goodwin, and further sought statutory attorney’s fees and costs.

. At the trial of these suits, after plaintiffs had closed their case, defendants moved for a directed verdict, which the court granted in part and denied in part. In ruling on the motion for directed verdict the trial court found as a fact that there was no final action taken at any of the meetings complained of. The motion was further granted in that the court found that the alleged meeting at Randall Goodwin’s office was in fact not a meeting of the school board or any of its committees. The motion was denied as it pertained to the Committee’s executive sessions held on March 18, 1980, and March 31, 1980, the court finding that plaintiffs had made a showing that these executive sessions were not within the exe-ception set out in the open meetings law. The trial court then afforded defendants an opportunity to present their evidence, however, defendants chose to rest their case without presenting further evidence. The trial court rendered judgment on the merits in favor of both plaintiffs, declaring that the actions of the Board in the above referred to executive sessions were not within the exceptions to the open meetings law and were, in fact, in violation of that law. Judgment was further rendered enjoining the Board from further violations of LSA-R.S. 42:4.1, et seq., and all demands for attorney’s fees were denied.

Defendant has appealed the trial court’s finding that the executive sessions of March 18, 1980, and March 31, 1980, violated the open meetings law and the permanent injunction issued against it. In an answer to defendant’s appeal, The League complains of the trial court’s refusal to allow testimony about the matters discussed at the April 10 or 11, 1980, meeting at Randall Goodwin’s office and further complained of the trial court’s finding that this was not an illegal closed meeting held in violation of the open meetings law and of the trial court’s denial of attorney’s fees. The League further prays for reasonable attorney’s fees on appeal.

The first issue presented on appeal is whether the executive sessions of March 18, 1980, and March 31, 1980, or any of the actions taken by the Committee in these executive sessions, violated the Louisiana Open Meetings Law.

At trial the parties stipulated that the Committee’s meetings held on the above referred to dates fall within the meaning of the term “meeting” as defined in and covered by the open meetings law. These committee meetings must therefore have been open to the public, unless closed pursuant to R.S. 42:6 (providing for executive sessions) and R.S. 42:6.1 (providing the reasons for an executive session). LSA-R.S. 42:5.

In its answer to these suits, defendant relies upon an exception to the open meetings law contained in R.S. 42:6.1 A(l), which allows a public body to hold an executive session for “discussion of the character, professional competence, or physical or mental health of a person . . . . ” Defendant maintains that its actions during these executive sessions were within the statutory exemption. Plaintiffs, however, contend that defendant’s actions in these closed meetings exceeded the bounds of the statutory exemption, in that the Committee went further than merely “discussing” the applicants.

The trial court found that the Board’s actions during the two executive sessions at issue exceeded the scope of the exception allowing discussion of the character, professional competence or physical or mental health of the person, in that the Committee moved from strictly discussion to a selection process by a vote or polling of the committee members. We agree with this aspect of the trial court’s interpretation of the open meetings law and this exemption.

The committee members who testified stated that, during the executive session held on March 18, 1980, there was some discussion concerning the character, professional competence and general qualifications of the forty-one applicants under consideration. They further testified that, after this general discussion, a procedure to reduce the number of applicants under consideration was devised, whereby each committee member would write down on separate slips of paper the names of ten of the forty-one applicants to whom that member desired to give further consideration. Dr. Netterville then stacked these slips of paper by name and counted the number of slips in each stack. Only the ten applicants whose names appeared on the greatest number of slips of paper would be given a one hour, personal interview and other further consideration. Testimony of the committee members further indicated that a similar procedure was used during the executive session held on March 31, 1980, in order to further reduce the number of applicants being considered from ten to four. During this March 31st meeting each committee member wrote down on a slip of paper the names of four of the remaining ten applicants, and their first choice (the first name on their list) was given four points, the second received three points, etc. The four applicants with the most points would be given further consideration.

The committee members who testified insisted that their action in these closed sessions was not a vote, nor was it final action, and that none of the original forty-one applicants was ever finally eliminated until the actual selection of a superintendent was made. They further testified that any of the original forty-one applicants, or others, could be nominated and/or considered by committee members and, in fact, selected as superintendent by the Board.

In its reasons for judgment, however, the trial court, while acknowledging the committee members’ good faith belief that their actions were not final, found that these actions constituted a vote, the practical effect of which was to reduce the number of people under active consideration and to in effect eliminate all but those ten, and then four, applicants named after each of the executive sessions. The evidence clearly supports this finding.

Committee member Robert Crawford testified that he considered the actions taken in these closed sessions as a “process of elimination.” He also said that, after the closed meeting on March 18, while he was free to nominate someone other than the ten selected for further consideration, he did not want to nominate anyone else if the other members of the committee did not want to give that person further consideration when asked, under cross examination, if it was his impression that he would be wasting his time if he nominated anyone else other than the ten, he replied, “At that point, I imagine so.” Another committee member, George Richard, testified that pri- or to the closed meeting on March 18, the Committee had agreed that they would attempt to reduce the number of applicants to ten or less, in order to facilitate their evaluation of the candidates. He also stated, and it is undisputed, that no one other than the ten applicants named after the March 18 meeting were ever interviewed.

The record also contains a letter written to the thirty-one applicants who were not chosen by the Committee for personal interviews and further consideration. This letter, written by Mr. Richard, as chairman of the Committee, states in part that, “The Committee’s selection of finalists does not include your application.” [Emphasis ours.] The evidence shows that the thirty-one applicants who received this letter were not granted personal interviews and received no further consideration by the Committee.

In reviewing this record it is clear that the practical effect of the actions taken by the Committee in these closed sessions was a decision by the Committee to select certain of the applicants for further consideration and to reject the others. Defendant argues that the actions taken by the Committee in this process of elimination were not final or binding, and therefore not prohibited by R.S. 42:6. In support of this contention defendants point to the evidence indicating that the Committee was in no way prohibited from considering any of the forty-one applicants or from choosing any of them, or any other person, as superintendent. While this is technically true, we find that the Committee believed itself to be engaged in a process of elimination and actually engaged in selecting certain persons for further consideration and rejecting others. All of the conduct and actions taken by the Committee, and its individual members, during and subsequent to these closed meetings, including the letter of March 19, 1980, written by Mr. Richard, support this conclusion. As the trial court stated in its written reasons, public bodies cannot meet in private, closed sessions and effectively make decisions, which are merely re-enacted pro forma, in a later open session. We find, as did the trial court, that the actions of the committee members during these closed sessions, in writing down the names of favored applicants was a vote taken in closed sessions, which had the effect of a written, secret ballot and, even if not final, was in violation of the prohibitions contained in R.S. 42:5 B and C.

Defendant argues that this “show of support” procedure was nothing more than a shorthand method of comparatively evaluating the character, professional competence, or physical or mental health of the applicants, which is sanctioned by the exception to the open meetings law. We disagree, and find, as did the trial court, that only “discussion” is allowed by the exception and that the procedure employed by the Committee went well beyond mere discussion and, in fact, became a selection or vote, which is not sanctioned by any exemption contained in this law.

R.S. 42:5 A provides that, “Every meeting of any public body shall be open to the public unless closed pursuant to R.S. 42:6 and R.S. 42:6.1.” R.S. 42:6.1 A states that, “A public body may hold an executive session pursuant to R.S. 42:6 for one or more of the following reasons . . .”, and thereunder provides eight reasons for an executive session. The intent of the open meetings law is to open all meetings of public bodies to the public, unless allowed by this law to be closed. In construing R.S. 42:5 A and 42:6.1 A, and because the exemptions contained in R.S. 42:6.1 A(l)-(8) are in derogation of the broad public policy of openness, we find that these eight enumerated reasons for an executive session are exclusive. Therefore, only these enumerated actions may be taken during an executive session. In reading these exemptions to the open meetings law, and especially R.S. 42:6.1 A(l), relied upon by defendant, we find that nowhere in these eight enumerated exemptions is a vote, poll or “show of support” allowed to be held in an executive session.

Defendant also argues that this procedure of writing down the names of the applicants was a rating by the committee members of the relative professional competence of the applicants, which could be humiliating or embarrassing to the applicants if required to be done in public. Again, we disagree.

In support of this position defendant argues that, because the open meetings law and the public records law are closely related in both purpose and design, cases decided under the public records law should be persuasive, if not controlling authority in this present case. While this may be true, we find that the case of Trahan v. Larivee, 365 So.2d 294 (La.App. 3rd Cir., 1978), writ denied 366 So.2d 564, and the other similar cases cited by defendant as analagous to this present situation, are factually distinguishable from this present ease. In Tra-han, supra, the information sought was of a specific, persona] and individualized nature, whereas in this present case a public vote would reveal nothing more than each board member’s conclusion as to which applicant or applicants should be given further consideration. We find that requiring that this vote or selection process be held in public is in no way comparable to the disclosure of the performance evaluations and ratings at issue in Trahan, supra. We also note that the selection of a superintendent of schools is by nature a public undertaking, while the personal, individualized evaluation of employees is generally of a more private nature, and, as in Trahan, supra, usually intended from the outset to be confidential.

In all selection processes there are winners and losers; those who are chosen and those who are not. Except for the one applicant who was selected, it was inevitable that all those who applied for this position would be rejected. And, this fact must unavoidably become public knowledge. This is true whether the selection or voting is done in public or private. While those who are not chosen might naturally be more comfortable with a private display of the relative support each obtained, we believe that promoting the public policy of openness mandated by this law is far more important to our society as a whole than is the avoidance of whatever slight discomfort, if any, might occur to an individual applicant. And, we do not believe that applicants for this public position could reasonably expect that the actual voting on a group of semi-finalists or finalists would be done in private or kept secret.

The open meetings law expressly provides that the performance of public business in an open and public manner is essential to the maintenance of a democratic society and toward this end mandates that the provisions of this law be liberally construed. LSA-R.S. 42:4.1. In interpreting this law the trial court has faithfully adhered to this mandated public policy. We therefore affirm its judgment with regard to the executive sessions held on March 18, 1980, and March 31, 1980.

The next issue raised by defendant is that the injunction issued by the trial court is invalid because it is overly broad and does not describe in reasonable detail the act or acts to be restrained.

As the judgment is now cast, it reads in pertinent part:

“Further judgment is rendered in favor of petitioners and against defendant, enjoining defendant from further violations of the open meetings law, LSA-R.S. 42:4.1 et seq.”

La.C.C.P. art. 3605 provides that a final injunction shall decribe in reasonable detail, and not by mere reference to the petition or other documents, the act or acts sought to be restrained. Lenfants Caterers, Inc. v. Fireman’s Charitable and Benevolent Association of New Orleans, 386 So.2d 1053, (La.App. 4th Cir., 1980).

In order to be found in contempt, a person or entity must act willfully to violate a court’s order. La.C.C.P. art. 224. Thus, a final injunction must comply with art. 3605 in order to inform a defendant what conduct is prohibited by the court. The judgment in this case fails to comply with that requirement, because it does not describe in reasonable detail the act or acts sought to be enjoined and is invalid for that reason. We therefore recast the injunction to prohibit defendant from the specific conduct which the trial court found to have violated the open meetings law.

The League complains of the trial court’s finding that the gathering of certain board members at the office of board member Randall Goodwin on April 9, 1980, was not an illegal closed meeting of the board. Connected with this issue is The League’s objection to the trial court’s refusal to allow testimony about the matters discussed at this April 9th meeting.

In an amended petition, The League alleged that:

“At the April 10 or 11, 1980, meeting .. . members of the board conferred in a series of meetings and/or telephone conferences establishing a ‘walking quorum’ of the board even though an actual quorum of the whole board or committee may or may not have been present at one time in one room.”

The trial court allowed some testimony regarding this alleged meeting, however, in response to defendant’s objection to further testimony concerning this gathering of board members, the court ruled that a quorum of the board was never present and therefore this was not a “meeting” as provided in the open meetings law. The court then refused to allow further examination of witnesses with regard to this alleged meeting.

The terms “meeting” and “quorum” are defined by the open meetings law as follows:

“(1) ‘Meeting’ means the convening of a quorum of a public body to deliberate or act upon a matter over which the public body as an entity has supervision, control, jurisdiction, or advisory power.”
“(3) ‘Quorum’ means a simple majority of the total membership of a public body.” R.S. 42:4.2.

The board is composed of twelve members and a simple majority of the board would be seven members. The evidence clearly establishes that at no time were seven members of the board present at the gathering at Mr. Goodwin’s office on April 9, 1980. Therefore, the trial court was correct in concluding that an actual quorum of the public body was not present at one time. A strict and technical reading of the open meetings law would require the conclusion that, where an actual quorum of the public body was not present at one time, there could in fact be no “meeting” of that body. The trial court’s factual finding that no quorum of the board was present on April 9, which finding is supported by the evidence, would appear to support the conclusion that no meeting of the board took place at that time.

However, because the open meetings law is to be liberally construed, and it expressly prohibits public bodies from utilizing procedures which circumvent its intent, we have carefully examined this record in order to determine if a “walking quorum” did exist, and whether this device had the effect of circumventing the provisions of the open meetings law.

Concerning the gathering at Mr. Goodwin’s office on April 9th, the evidence is to the effect that Mr. Richard, the chairman of the committee, was out of town on this day and had asked Mr. Goodwin to fill in for him at the meeting with Mrs. Armstrong, the president of the board, and Dr. Rice, who had been selected as the new superintendent. Upon returning to Baton Rouge, Mr. Richard contacted Mr. Goodwin and arranged to meet him later that day in order to be informed of what had occurred with Dr. Rice. The evidence clearly indicates that the meeting at Mr. Goodwin’s office was not designed to be a Board or Committee meeting and was not intended for the purpose of making any decision or taking any action. The evidence further establishes that only six board members were present at Mr. Goodwin’s office, and that no other board members were in the hall or contacted by telephone or otherwise. The evidence further indicates that none of those present left this meeting and no other board members arrived during the meeting.

The trial court allowed plaintiffs to fully explore the issue of whether an actual or “walking” quorum of the Board or Committee was present or existed on April 9, 1980. Further examination on this subject was disallowed only when it became evident that plaintiffs were unable to establish that a quorum, or its equivalent, did exist, which is necessary in order to find that a “meeting” took place. The trial court was correct in its refusal to allow The League to continue its cross examination on this subject.

We find that, while not strictly a chance meeting, this gathering of the six board members at Mr. Goodwin’s office on April 9, 1980, was not prearranged, and that, except for Mr. Richard and Mr. Goodwin, the members who attended did so on their own and merely because they were aware that Mr. Richard would be at Mr. Goodwin’s office that night. We further find that this gathering at Mr. Goodwin’s office was intended only to inform Mr. Richard and was not intended or used by the Board as a device to circumvent the open meetings law. Based on the evidence, we believe that the trial court was correct in finding that this April 9, 1980, gathering at Mr. Goodwin’s office was not an illegal closed meeting of the Board or Committee.

The final issue on appeal is The League’s claim for attorney’s fees. Although The League sought attorney’s fees below, the trial court denied all demands for attorney’s fees. In its answer to defendant’s appeal, The League has reurged its claim for attorney’s fees in the trial court and has further requested attorney’s fees on appeal.

With regard to attorney’s fees, the open meetings law provides that:

“If a person who brings an enforcement proceeding prevails, he shall be awarded reasonable attorney’s fees and other costs of litigation. If such person prevails in part, the court may award him reasonable attorney’s fees or an appropriate portion thereof.” LSA-R.S. 42:11 C.

The trial court gave no reasons for its denial of attorney’s fees and defendant argues that, because plaintiff Brown had already filed suit in order to enforce the open meetings law at The League’s request, The League’s suit was unnecessary and they should therefore be denied attorney’s fees. However, we find that plaintiff Brown, for whatever reason, did not seek injunctive relief against the Board in order to enjoin them from further violating the open meetings law. Thus, The League sought relief other than that sought by plaintiff Brown, and was successful in obtaining this injunc-tive relief. The League, however, did not prevail in its attempt to have the alleged illegal actions of the Board set aside, nor was it successful in having the gathering of six board members on April 9, 1980, declared to be an illegal closed meeting of the Board.

While the award of attorney’s fees to a party who only prevails in part is discretionary, we believe that the injunctive relief sought and obtained only by The League is in itself so important to the enforcement of the open meetings law that the trial court’s total denial of attorney’s fees to The League is clearly wrong. We find that The League should be awarded attorney’s fees, for both trial and appeal.

Other than the pleadings and the transcript of the proceedings below, the record contains no evidence as to what amount of attorney’s fees is reasonable. We therefore remand this case to the trial court in order for it to determine what amount of attorney’s fees, both at trial and on appeal, is appropriate.

For the foregoing reasons, the judgment of the trial court finding that defendant’s actions, both its own and those taken through its committee, during the executive sessions held on March 18, 1980, and March 81,1980, violated the Louisiana Open Meetings Law is affirmed. We also affirm the trial court’s finding that the gathering held at the office of board member Randall Goodwin on April 9,1980, was not an illegal closed meeting of the East Baton Rouge Parish School Board or of the Superintendent Search and Selection Committee. Further, the judgment granting the permanent injunction against defendant is amended and judgment is hereby rendered permanently enjoining defendant from: (1) Holding executive sessions for the express purpose of deciding or actually deciding issues before it during an executive session; (2) voting, polling of members or determining the support of its members for or against an issue before it, whether in writing, orally or otherwise, during an executive session; and (3) doing anything during an executive session which is the equivalent of a vote, poll or show of support, whether in writing, orally or otherwise. The judgment of the trial court denying The League attorney’s fees is reversed. The League is hereby awarded reasonable attorney’s fees, both at trial and on appeal, and this case is remanded to the trial court in order to fix that amount of attorney’s fees.

AFFIRMED IN PART, AMENDED IN PART, REVERSED IN PART AND REMANDED.

      . While both the Board and the Committee were named as defendants in these suits, the trial court’s judgment refers only to the Board. We find no significance in this, however, because the Board was acting through the Committee and the Committee’s actions were, in fact, the actions of the Board.

      . Hereafter the term “defendant” refers to the Board only.

      . While LSA-R.S. 42:6 provides certain mandatory procedures for convening an executive session, no procedural deficiency has been alleged. We will therefore not discuss these procedural requirements nor the procedures employed by the committee in convening the executive sessions.

      . In its petition, The League also alleges that, “There is no legal authorization for an executive session to consider the qualifications of potential school board administrators.” From this allegation it might appear that The League contests the Board’s right to hold executive sessions even for the limited purpose of discussing the character, professional competence or physical or mental health of a potential school board administrator. In its written reasons, while finding that the Board violated the open meetings law because its actions in these closed sessions went beyond mere discussion of the “character, professional competence or physical or mental health of a person”, the trial court implies that the open meetings law allows an executive session to consider the qualifications of potential school board administrators, where this consideration is limited to discussion of the character, professional competence or physical or mental health of the applicants. While this appears to be a rejection of The League’s above referred to allegation, The League has not appealed and, neither in its answer to defendant’s appeal nor in its appellate brief has The League contested this finding of the trial court. We therefore will not consider and express no opinion on the correctness of that holding or on the issue of whether, even for the purpose of discussing the matters found in R.S. 42:6.1 A(l), the open meetings law authorizes the Board’s consideration of the qualifications of potential school board administrators in executive session.

      . Although Dr. Netterville was a member of the Committee, and nothing in evidence indicates that he was not qualified to or allowed to vote with the Committee, the evidence shows that Dr. Netterville did not vote with the Committee, nor did he participate in writing down on slips of paper the names of the applicants he favored for additional consideration.

      . The evidence indicates that the Committee as a whole was aware of this letter’s being sent by Mr. Richard, as chairman of the Committee, and that the letter represented the consensus of the Committee. We find this present situation factually distinguishable from the case of Parent-Community Alliance for Quality Education, Inc. v. The Orleans Parish School Board, 385 So.2d 33, (La.App. 4th Cir., 1980), writ denied 386 So.2d 1379, in which the court found that a letter sent by the president of the school board to certain applicants for the position of superintendent, telling them that they were not among the persons recommended to be hired, was merely the ex parte action of one of the members of the board and thus did not show a violation of the open meetings law by final or binding action taken at an executive session.

      . The evidence later established that this gathering was held on April 9, 1980.


author: CHIASSON, Judge.

text:
    Frank MARTIN and Charles Hall v. A. R. BLOSSMAN, Jr. and Ernest K. Hall.
    No. 14295.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 12, 1981.

      Galen S. Brown, New Orleans, and David E. Cooley, Jr., Slidell, for plaintiffs-appel-lees.
    Jack A. Blossman, Covington, for defendants-appellants.
    Before CHIASSON, EDWARDS and LEAR, JJ.
   CHIASSON, Judge.

Plaintiffs, Frank Martin and Charles Hall, filed this civil action against defendants, A.R. Blossman, Jr. and Ernest K. Hall, alleging breach of warranty under an agreement to purchase the capital stock of Successful Distributors, Inc., a Louisiana corporation which owned two discount stores. In the agreement, defendants (sellers) warranted to plaintiffs (buyers) that the total liabilities of the corporation would not exceed the amount shown on the balance sheet of the corporation by more than $6,000, plus certain income tax liability and after adjustment of accounts payable for merchandise received between October 1 and 4, 1972.

The balance sheet, dated September 30, 1972, listed total liabilities as accounts payable ($143,165.76), notes payable ($167,-500.00), and accrued expenses ($5,154.03), for a total of $315,819.79. Plaintiffs alleged that the accounts payable and certain accrued expenses were understated and sued to recover the difference.

The trial court appointed Mr. John J. Coerver, C.P.A., as an expert accountant to examine exhibits filed in evidence from the records of the corporation. Mr. Coerver was asked to state his opinion as to the amount of the corporation’s accounts payable as of September 30, 1972.

The contract provided that only the debt for merchandise physically received as of September 30, 1972, should be included in accounts payable. However, Mr. Coerver lacked complete documentation, in some instances, to determine the date on which certain merchandise was received by the corporation.

Mr. Coerver submitted to the trial court a detailed listing obtained from the corporate records submitted to him and divided them into three categories: (1) accounts payable; (2) not accounts payable; and (3) questionable. Only those items listed in the accounts payable category were used to determine his final figure of $167,295.07 as actual accounts payable as of September 30, 1972.

Mr. Coerver explained in his written report, which was introduced in evidence, and reiterated in his testimony at trial the methods employed in reaching his conclusions. We quote from his written report:

“10. Items classified as accounts payable were classified as such if it was determined by the receiving report or dray ticket that the item was delivered prior to September 30, 1972. On invoices and expenditures with no receiving report or dray ticket, the date of shipment was used along with the shipping point to determine if the merchandise would have been received prior to September 30, 1972. If no receiving report or dray ticket was found and no date of shipment appeared on the invoice, the invoice date was used along with the point of origin to determine whether the merchandise would have been received prior to September 30, 1972.
“11. Amounts paid for other than merchandise was determined, as to accounts payable or not accounts payable, as to the dates of services performed. Payroll taxes and sales taxes were determined accounts payable or not accounts payable as to the period for which the liability accrued. Utility bills covering the period from September to October of 1972 were prorated on a daily basis to determine whether accounts payable or not accounts payable. Property taxes for the year 1972 were prorated 9/i2 to accounts payable and 3/i2 to not accounts payable.
“12. Checks without invoices were determined in the following manner. The company had a practice based on the other invoices and checks examined, to record on the checks the invoice number paid along with the date of the invoice. Approximately five checks totaling $2,432.70 are listed as accounts payable because the invoice date noted on the check was an indication that the merchandise would have been received prior to September 30, 1972; however, no invoices were available to substantiate. Eighteen checks amounting to $9,058.52 are listed as accounts payable because most of the checks were made out on October 10,1972, payable to suppliers which is an indication, because of the type of business operation, that they would have been accounts payable as of September 30, 1972.”

At trial on the merits, three expert accountants testified in addition to Mr. Coer-ver. One accountant, called by plaintiffs as a witness, testified that it was proper, under some circumstances, to list the bill for an item of merchandise as an account payable without specific documentation of its date of delivery. When asked under what circumstances this practice would be acceptable, the witness referred to the explanations given in Mr. Coerver’s report. This witness had reviewed the complete records of the corporation.

The other two accountants, called by defendants as witnesses, opined that the methods used by Mr. Coerver to determine the amount of accounts payable were unacceptable. These witnesses had not reviewed the complete records of the corporation.

The trial court found that plaintiffs had carried their burden of proving an understatement of accounts payable. As the amount understated, the trial court accepted the findings of Mr. Coerver, with the exception of two entries. Judgment was rendered in favor of plaintiffs for $12,-598.68 with legal interest. Defendants appealed. Plaintiffs initially answered the appeal, seeking an increase of the award, but have subsequently abandoned that request.

First, defendants contend that plaintiffs failed to prove their claim by acceptable legal evidence. Specifically, they argue that Mr. Coerver included items in accounts payable without sufficient proof that the related merchandise was actually received by the corporation as of September 30,1972.

“The best evidence rule requires a plaintiff to establish his demand with the best proof the nature of the thing would permit.” Al Smith’s Plumbing & Heating Service, Inc. v. River Crest, Inc., 365 So.2d 1122 (La.App. 4th Cir. 1978). The best proof to establish the date on which merchandise is received would be the delivery or dray tickets. However, the uncontro-verted testimony in this case establishes that some shippers do not furnish delivery or dray tickets. Because the best evidence is unavailable in this instance, customary business and accounting practices had to be used to determine the date of receipt of some of the merchandise. The court-appointed expert used these practices and the dray tickets available to determine that the accounts payable totaled $167,259.07, a difference of $18,939.28 over the amount ($148,139.79) shown on the balance sheet. A fact may be established by circumstantial as well as by direct and positive proof. Town of Slidell v. Temple, 246 La. 137, 164 So.2d 276 (1964).

The trial court found as a fact that the accounts payable had been understated by an amount in excess of $6,000.00. We hold this finding to be supported by the uncon-troverted evidence adduced at the trial of this matter.

Defendants next argue that adjustments should be made to accounts payable for inventory arriving after September 30, 1972.

The simple answer to this argument is that the accountant only considered the merchandise received prior to September 30,1972, in arriving at the accounts payable as of that date. No adjustment for merchandise received between the first and fourth of October, 1972, is therefore necessary.

Finally, defendants argue that certain documentary evidence should not have been admitted because it was not included in the Order for Production of Documents and because they had no opportunity to review it before trial.

The trial court specifically held this evidence to be unreliable and did not consider it in making its findings. Defendants admit in their brief that they may not have been damaged by this alleged error. Any possible error was harmless since the documents did not influence the trial court’s decision. See State Farm Mutual Automobile Insurance Company v. Youngblood, 331 So.2d 500 (La.App. 2nd Cir. 1976).

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

AFFIRMED.


author: EDWARDS, Judge.

text:
    Henrietta Cenac TRAHAN v. Albert Joseph TRAHAN.
    No. 14296.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 12, 1981.

      James M. Funderburk, Houma, for plaintiff and appellee.
    Douglas H. Greenburg, Houma, for defendant and appellant.
    Before CHIASSON, EDWARDS and LEAR, JJ.
   EDWARDS, Judge.

Appellant, Albert Joseph Trahan, and ap-pellee, Henrietta Cenac Trahan, were divorced by judgment rendered March 20, 1979. Appellee was awarded custody of the two minor children of the marriage, and appellant was ordered to provide $450 per month child support.

In August of 1980, appellee filed a rule for judgment for past due alimony and contempt, in which she alleged appellant to be in arrears on his child support payments. Appellant filed a counter rule, requesting a reduction of child support.

After hearing, the trial court rendered judgment finding appellant to owe past due child support of $2,762.50. The judgment was made executory, and the court assessed against appellant attorney fees in the amount of $250. The judgment also decreased appellant’s child support obligation to $380 per month. It is from this judgment that appellant appeals.

On appeal, appellant argues first that the trial court erred in awarding attorney fees.

Act 462 of 1977 enacted LSA-R.S. 9:305. This statute vested a court rendering judgment in an action to collect alimony or child support arrearages with the discretion to award attorney fees to the prevailing party. The statute is apparently a codification of the jurisprudential theory that “alimony allowed should not be eaten up partially by attorney’s fees, and the child thereby deprived, in part, of the object and purpose of allotting it.” Newson v. Newson, 176 La. 699, 146 So. 473 (1933). See also Gardner v. Gardner, 366 So.2d 1022 (La.App. 1st Cir. 1978).

LSA-R.S. 9:305 was amended most recently by Act 326 of 1979. The statute now provides that a court shall award attorney fees to the prevailing party when it renders judgment in an action to make past due alimony or child support executory, unless there is good cause for not doing so. As amended, LSA-R.S. 9:305 provides:

“When the court renders judgment in an action to make past due alimony or child support executory, except for good cause, the court shall award attorney fees and court costs to the prevailing party.”

Appellant does not contend that he was not in arrears in child support payments. Rather, he submits simply that he could not afford to meet the obligation. However, we note that appellant did not seek a reduction of child support until appellee filed the instant rule. Appellant has not demonstrated that there was “good cause” not to award attorney fees to the appellee. Under these circumstances, we find no error in the trial court’s award of attorney fees.

Secondly, appellant complains that his right of cross-examination at the hearing on the rules was abridged. He cites specifically two instances of this alleged error, both involving his cross-examination of appellee.

We have thoroughly reviewed the record and find no basis for this alleged error in either instance cited by appellant. The trial court did not prevent appellant from cross-examining appellee but merely asked for cooperation with regard to the unnecessary use of time.

Finally, appellant contends that the trial court erred in setting child support at $380 per month. He argues that the sum should be less.

Appellee’s gross income is approximately $750 per month. She claims expenses for the two children of $833.72 per month.

Appellant has remarried since his divorce from appellee. He adopted the child of his new wife, and they now have a child of their own from this marriage. Additionally, a third child lives with appellant. However, that child’s father provides for his support.

Appellant’s gross income during 1979, the year of the initial setting of child support, was approximately $25,880. His present gross income, based upon a projection of year-to-date earnings, is approximately $30,000 per year. Appellant’s monthly net income is about $1,900, and he claims monthly expenses of approximately $1,700.

Although appellant argues that he has lost the aid of his second wife in supplementing the family income, we note that he did not enjoy the benefit of her earnings at the time the child support award was initially set by the same judgment granting the divorce from his first wife. In any event, we further note that loss of this second income represents a decrease of less than $2,000 annually from the family’s 1979 income.

The trial court found that appellant had proved a change of circumstances entitling him to a reduction of his child support obligation and reduced the support payments from $450 to $380 per month. The trial court is vested with considerable discretion in setting child support awards. Gardner v. Gardner, supra; Shanklin v. Shanklin, 339 So.2d 1262 (La.App. 1st Cir. 1976). Under the circumstances presented herein, we find no abuse of discretion.

For the foregoing reasons, the judgment of the trial court is affirmed. Costs of this appeal are to be borne by appellant, Albert Joseph Trahan.

AFFIRMED.


text:
    Betty Sandifer BAKER v. LIFE GENERAL SECURITY INSURANCE COMPANY.
    No. 14297.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 12, 1981.

      Clayton S. Knight, Franklinton, for plaintiff-appellee.
    Robert W. Levy, Ruston, for defendant-appellant.
    Before CHIASSON, EDWARDS and LEAR, JJ.
   LEAR, Judge.

This is a suit on an insurance policy. The plaintiff, Betty Sandifer Baker, brought suit against defendant, Life General Security Insurance Company, in order to obtain and receive the proceeds of an insurance policy issued on the life of her husband, Clarence Baker, who died on October 21, 1979. Barry A. Baker, son of decedent by a prior marriage, intervened herein, alleging that he was the designated beneficiary on the above referred to insurance policy, and sought a judgment recognizing him as the owner of the proceeds of said policy. Defendant then answered, generally denying the claims of both plaintiff and intervenor, and reconvened against both plaintiff and intervenor in order to provoke a concursus proceeding, thereby requiring both plaintiff and intervenor to assert their respective claims to the proceeds of the subject insurance policy, which defendant had deposited into the registry of the court. Thereafter, defendant was dismissed from these proceedings.

After a trial of this matter, judgment was rendered in favor of plaintiff, declaring her to be the beneficiary of the subject life insurance policy, ordering the funds deposited by defendant to be paid to plaintiff and dismissing the intervention of Barry A. Baker. Intervenor, Barry A. Baker, now appeals that judgment.

The insurance policy in question is a “husband-wife” policy, which provided coverage on their lives in the amount of $25,000.00 and $12,500.00 respectively. Clarence and Betty Baker received the application from defendant by mail and after discussing the matter, including the application, with each other, Betty Baker filled out the application at which time Clarence Baker signed it. The application was then forwarded to defendant, at which time the policy was issued.

Simply stated, the issue here is who is the beneficiary of the deceased, Clarence Baker. In this case, it is the application form which contains the beneficiary designation, rather than the insurance policy itself. A copy of the application form, signed by Clarence Baker, is attached hereto as Appendix A.

The application form provides a standardized, printed beneficiary designation, whereby the proposed insured (Clarence Baker) is the beneficiary of the insured wife (Betty Baker) and any insured child. The printed form further provides that the proposed insured’s beneficiary “shall be the insured wife at the date of this application, if living . . . . ” Had the application form contained no further designation, it is clear that plaintiff would be the beneficiary under this policy and entitled to receive the proceeds. However, the application does allow a beneficiary designation other than that contained in the standard, printed form. It provides that the form language will control the beneficiary designation “unless otherwise requested”, and the last sentence states, “If other than above [meaning the standard, printed designation], please indicate.” Below this sentence are two blank lines, the first preceded by the words “FULL NAME” and the second preceded by the word “RELATIONSHIP”. In these blank spaces, Clarence and Betty Baker inserted the name “Barry A. Baker”, and indicated his relationship as “son”.

There has been much discussion, both at trial and in the briefs submitted to this court, concerning the issue of reformation of contracts based on a mutual mistake of the parties. However, we do not believe that this is truly the issue presented in this case.

Generally, in suits for reformation of a contract, the term or terms sought to be included or excluded by the suit are provisions or terms which are bargained for as between the parties. It is true that reformation in such cases can only be obtained by alleging and proving a mutual mistake as between the parties. The designation of a beneficiary in a life insurance contract, however, is not such a “bargained for” term, the reformation of which would require a showing of mutual mistake. Rather, the naming of a beneficiary is usually a unilateral act by the insured or insureds.

In determining the beneficiary of a life insurance policy, it is necessary to ascertain the intention of the deceased. In this regard, the courts are bound to give legal effect to all contracts and their terms, including insurance policies, according to the true intent of the parties, and the intent is to be determined by the words of the contract when they are clear and explicit and lead to no absurd consequences. Bardwell v. American National Insurance Co., 94 So.2d 313 (La.App. Orleans, 1957); LSA-C.C. art. 1945. Thus, it is only where the agreement is unclear, ambiguous or will lead to absurd consequences that the court should go beyond the written agreement to gather the true intention. Bohm v. CIT Financial Services, Inc., 348 So.2d 132 (La.App. 1st Cir., 1977), writ refused 350 So.2d 673 (La., 1977); Dixie Campers, Inc. v. Vesely Company, 389 So.2d 889 (La.App. 4th Cir., 1980).

Our initial inquiry must be whether the words used in designating a beneficiary, when viewed in their totality, are clear and unambiguous. From our reading of the application form, it appears that the words used, both the standard, printed form and those added by plaintiff and the deceased, Clarence Baker, are clear and unambiguous. In writing the words “Barry A. Baker” and “son” in the blank lines following the sentence, “If other than above, please indicate.”, it appears that the deceased desired not to make use of the standard, printed beneficiary designation, but rather, intended his son, Barry A. Baker, to be named as his beneficiary. While the wording of this beneficiary designation clause might be improved, we believe that the ordinary person of common understanding, when reading this clause, would readily understand that they could substitute a named beneficiary by filling in the blank lines, and in such case, the standard, printed beneficiary designation would not control.

We note that plaintiff, in her petition, does not allege that the beneficiary designation clause in the application form is unclear or ambiguous. Plaintiff alleges only that it was intended by Clarence Baker that she, plaintiff, be the beneficiary, rather than Barry A. Baker. Further, intervenor testified that, subsequent to Clarence Baker’s death, plaintiff informed him of the existence of the insurance policy and stated that he, intervenor, was named as the beneficiary on the life insurance policy.

Further in construing the words of this clause according to their commonly understood meaning, we do not believe that an absurd consequence is reached. While some or even most husbands would name their wife as their beneficiary in a life insurance policy, we cannot state that it is unreasonable or absurd for the decedent to have named his son by a former marriage to be the beneficiary of his life insurance policy.

Finding that the beneficiary designation at issue is clear and unambiguous, we cannot consider, and we find that it was error for the trial court to have admitted and considered parol evidence in order to show an intention of the deceased other than that contained in the application form.

For these reasons, we find that the deceased clearly intended to name his son, Barry A. Baker, as his beneficiary under the subject life insurance policy.

Even if we had found, which we do not, that the language in the beneficiary designation clause is unclear, we do not believe that plaintiff has proven by a preponderance of the evidence that decedent’s intention was to make her, rather than Barry A. Baker, his beneficiary.

Even allowing for the admission of parol evidence, we believe that the trial court erred in admitting, over a timely objection, hearsay evidence as to the understanding or intention of the decedent. Plaintiff’s testimony of conversations with and statements made by her husband, Clarence Baker, was hearsay and self-serving. The only declarations by a person, since deceased, which are admissible as exceptions to the hearsay rule, are dying declarations, statements against interest and, in rare instances, pertaining to family history, relationship and pedigree where they are received as a matter of necessity. See Miller v. Miller, 226 La. 273, 76 So.2d 3 (1954). We find that the statements alleged by plaintiff to have been made by Clarence Baker do not come within any of these exceptions to the hearsay rule.

In the absence of this hearsay testimony, we are left with only plaintiff’s statements as to her understanding and belief that she was to be named beneficiary. This testimony, which is self-serving, is uncorroborated by other independent evidence and is of little probative value.

Concerning her understanding of the beneficiary designation clause, plaintiff testified that they would be each other’s beneficiary and would need to name someone to collect the insurance proceeds as a beneficiary of the last to die. She further stated that Barry A. Baker would be Clarence Baker’s beneficiary, should he die last, and “I wanted both of my children [by a former marriage] to collect mine if I was the last one to die.” However, this is contradicted by the fact that plaintiff did not list or name her children as her beneficiaries on the application form.

For the above reasons, the judgment of the trial court is hereby reversed and judgment is rendered in favor of intervenor, Barry A. Baker, recognizing him as the owner of the proceeds of Life General Security Insurance Company Policy Number 6001954, which proceeds have been deposited into the registry of the Twenty-second Judicial District Court for the Parish of St. Tammany, Louisiana. Judgment is further rendered dismissing plaintiff’s suit, with prejudice. All costs are to be paid by plaintiff, Betty Sandifer Baker.

REVERSED AND RENDERED.


text:
    James W. WRIGHT v. AETNA LIFE AND CASUALTY COMPANY.
    No. 14299.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 12, 1981.

      Kramer & Davis, James D. Davis, Alexandria, for plaintiff-appellant.
    Charles M. Hughes, Bogalusa, for defendant-appellee.
    Before CHIASSON, EDWARDS and LEAR, JJ.
   CHIASSON, Judge.

Plaintiff-appellant, James W. Wright, originally filed this workmen’s compensation action on August 3,1977, seeking benefits for total and permanent disability. Made defendant in the suit was Aetna Life and Casualty Company, the workmen’s compensation insurer of plaintiff’s employer, who filed an exception of prescription. In due course, the trial court rendered judgment granting defendant’s exception and refused plaintiff leave to amend his petition in order to assert a claim for partial disability. Plaintiff appealed that judgment to this court and we upheld the trial court’s judgment on the exception of prescription but reversed the refusal of the trial court to allow amendment of the pleadings and remanded the case so that plaintiff could amend his petition and allege partial disability. Wright v. Aetna Life and Casualty Company, 360 So.2d 235 (La.App. 1st Cir. 1978).

After remand, plaintiff amended his petition by adding allegations of partial disability and loss of physical function. The case was then submitted to the trial court solely upon a written stipulation of facts. In its reasons for judgment the trial court found that this court had held in its earlier decision that plaintiff’s claim for loss of a physical function had prescribed and that the facts as stipulated did not support plaintiff’s demand for partial disability. The trial court rendered judgment dismissing plaintiff’s action without prejudice and plaintiff perfected the instant appeal from that judgment. Defendant neither appealed nor did it file an answer to the appeal.

Plaintiff first contends the trial court erred in finding that his claim for loss of a physical function had prescribed. This court, in its earlier decision in this case, specifically held that plaintiff’s claim for loss of a physical function had prescribed. Wright v. Aetna Life and Casualty Company, supra. The import of our prior decision was to allow plaintiff the opportunity to amend his pleadings to assert his claim for partial disability which, by law, has a different prescriptive period. We find no error in the trial court’s finding on this issue.

Plaintiff next contends the trial court erred in rejecting his claim for partial disability.

The stipulation filed in the trial court establishes the following relevant facts:

1. Plaintiff sustained a work-related injury to his right foot on January 6, 1976;
2. As a result of this injury, plaintiff has a 25% partial permanent disability of his right foot;
3. Plaintiff returned to work in his former employment as a machinist on July 27, 1976;
4. Since his return to work, plaintiff has earned wages equal to or in excess of those which he was earning at the time of the accident;
5. Plaintiff’s job as a machinist is primarily a sedentary occupation and does not require him to be constantly on his feet.

The applicable law is contained in La.R.S. 23:1221(3) which, in part, states:

“For injury producing partial disability of the employee to perform the duties in which he was customarily engaged when injured or duties of the same or similar character, nature, or description for which he was fitted by education, training, and experience, sixty-six and two-thirds per centum of the difference between the wages the employee was earning at the time of the injury and any lesser wages which the injured employee actually earns in any week thereafter in any gainful occupation for wages, whether or not the same or a similar occupation as that in which the employee was customarily engaged when injured and whether or not an occupation for which the employee, at the time of injury, was particularly fitted by reason of education, training, and experience, during the period of disability, but not beyond a maximum of four hundred weeks for such partial disability resulting from injury occurring on and after September 1, 1975, and on or before August 31, 1976; ...”

Plaintiff has returned to the full-time duties of his former employment with no indication that his injury has prevented him from performing any of his required duties. Since his return to work, plaintiff has earned wages equal to or greater than those being earned when injured. Under these circumstances and the clear wording of La.R.S. 23:1221(3), plaintiff is not partially disabled. Compare LeBlanc v. Commercial Union Assurance Company, 349 So.2d 1283 (La.App. 1st Cir. 1977), writ denied 351 So.2d 174 (La.1977); Jacks v. Banister Pipelines America, 396 So.2d 604 (La.App. 1st Cir. 1981). The trial court was therefore correct in its finding on this issue.

Defendant in its brief to this court acquiesced in the dismissal of plaintiff’s action without prejudice.

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

AFFIRMED.


text:
    Helen C. QUINN v. Robert H. M. QUINN.
    No. 14300.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 12, 1981.
    Michael W. McKay, Baton Rouge, for plaintiff-appellee, Helen C. Quinn.
    Martin A. Schott, Baton Rouge, for defendant-appellant, Robert H. M. Quinn.
    Before CHIASSON, EDWARDS and LEAR, JJ.
   EDWARDS, Judge.

Plaintiff, Helen C. Quinn, and defendant, Robert H. M. Quinn, were divorced on November 19,1968, by judgment of the Circuit Court of the Sixth Judicial Circuit of the State of Florida in and for Pinellas County. As part of that judgment, it was ordered that the property settlement agreement, which the parties had entered into, was approved by the court and made a part of the final judgment of divorce.

The property settlement agreement dealt with all aspects of the Quinns’ property division and provided in pertinent part:

“5. The Husband, during his lifetime, agrees to pay the Wife the sum of Four Hundred Dollars ($400.00), per month, as alimony, until the remarriage or death of the Wife, whichever event occurs first.”

Plaintiff filed a petition in the Family Court of East Baton Rouge Parish, seeking to have recognized the Florida judgment, and alleging that, under Provision 5 of the Property Settlement Agreement, defendant owed plaintiff the sum of $56,200 through January 1, 1980.

Plaintiff prayed that the Florida court judgment be recognized and that there be judgment rendered against defendant in the full sum of $56,200 together with legal interest from date of judicial demand, reasonable attorney fees and all costs.

Defendant filed exceptions of no cause of action, res judicata, prescription, and lack of subject matter jurisdiction. Following hearings, the exceptions of no cause of action, res judicata, and lack of subject matter jurisdiction were overruled. Defendant’s exception of prescription was sustained. Judgment was rendered in favor of plaintiff in the amount of $14,400 together with legal interest from date of judicial demand and all costs.

Defendant appeals the judgment in favor of plaintiff. Plaintiff has answered the appeal, objecting to the trial court’s application of LSA-C.C. Art. 3538, limiting plaintiff’s recovery to three years. We reverse.

LSA-R.S. 13:1401 provides for the jurisdiction of the Family Court for the Parish of East Baton Rouge. The statute reads in pertinent part:

“(7) All actions for divorce, separation from bed and board, annulment of marriages, establishment or disavowal of the paternity of children, alimony and support, custody and visitation of children, as well as of all matters incidental to any of the foregoing proceedings, including but not restricted to the issuance of conservatory writs for the protection of community property, the awarding of attorney fees to the wife in judgments of divorce and separation, the cumulation of and rendering executory of alimony, the issuance of writs of fieri facias and garnishment under judgments of the court for alimony and attorney fees, jurisdiction of which was vested in the Nineteenth Judicial District Court for the parish of East Baton Rouge prior to the establishment of the family court for the parish of East Baton Rouge. The Nineteenth Judicial District Court for the parish of East Baton Rouge however, shall retain jurisdiction of all proceedings involving liquidation and partition of the community after a judgment of divorce or separation from bed and board.”

A careful reading of the original property settlement agreement, together with the final judgment of divorce as granted by the Florida court, makes it clear that plaintiff is suing to enforce a contract and not to make past due alimony executory.

The property settlement agreement dealt with all aspects of the parties’ estate. Paragraph 13 of the agreement stated that

“All matters affecting the interpretation of this agreement and the rights of the parties hereunder shall be governed by the laws of the State of Florida.”

Paragraph 14 of the agreement stated that the contract was

“binding upon all parties hereto, their respective heirs, executors, administrators and assigns.”

Underwood v. Underwood, 64 So.2d 281 (Fla.1953), dealt with a “separation agreement” much like the “property settlement agreement” in the instant case. In concluding that, despite use of the word “alimony” in the separation agreement, the agreement amounted to a property settlement contract, the Florida Supreme Court stated:

“The Court has repeatedly held, along with practically every other Court in the land, that property settlements between husband and wife made in good faith are valid and legal and should not be disturbed by the Courts. Vance v. Vance, 143 Fla. 513, 197 So. 128. That these agreements should be construed and interpreted as other contracts is no longer open to question. Bergman v. Bergman, 145 Fla. 10, 199 So. 920.
The primary and controlling question is whether the agreement constituted a property settlement, or whether the financial arrangements constituted alimony.
At the very outset we dispose of the legal effect of the use of the word “alimony” in the agreement and decree. It is not what it is called but what it is that fixes its legal status. It is the substance and not the form which is controlling. In the case of International Trust Co. v. Liebhardt, 111 Colo. 208, 139 P.2d 264, 147 A.L.R. 700, the court held that the use of the word alimony was not conclusive and that it was substance and not form which guided the court. So far as agreements of the kind under consideration is (sic) concerned, where periodic payments are to be made (to) the wife for the period of her life and is (sic) not limited to the joint lives of the parties, the legal effect of such payments are that they constitute property settlements and not alimony. By its very nature, alimony is limited to the lifetime of the husband. See Spear v. Spear, 158 Md. 672, 149 A. 468, from which we quote with approval in Vance v. Vance, supra; Emerson v. Emerson, 120 Md. 584, 87 A. 1033; Newbold v. Newbold, 133 Md. 170, 104 A. 366; Dickey v. Dickey, 154 Md. 675, 141 A. 387, 58 A.L.R. 634; North v. North, 339 Mo. 1226, 100 S.W.2d 582, 109 A.L.R. 1061.” (Emphasis supplied by the Court.)

The logic of Underwood was followed in Howell v. Howell, 164 So.2d 231 (Fla.App., 2d Dist. 1964), and Howell v. Howell, 207 So.2d 507 (Fla.App., 2d Dist. 1968). In Howell v. Howell, 1968, the court stated:

“It is clear that the parties effected a complete contractual settlement, transfer, division and sale of their properties for a consideration definitely fixed for an expressed period of time. The chancellor could not reduce the agreed amounts on petition for modification without doing violence to the underlying contract (citing Underwood, Fort [v. Fort, 90 So.2d 313 (Fla.1956)] and Vance v. Vance, 1940, 143 Fla. 513, 197 So. 128.
We affirmed the previous order of Judge Hall that ‘the amount of the periodic payments in question was stipulated by the parties in a valid and binding property settlement agreement and * * * was not subject to modification under Fla.Stat. Sec. 65.15’ (text at 164 So.2d 232).” (Emphasis added.)

In the instant case, the parties contractually agreed to be ruled by Florida law. They further agreed to fixed payments, termed “alimony.” Such payments, under Florida law, particularly where the payments terminate not at the husband’s, but at the wife’s death, are construed as contractual matters and not alimony, which, by its nature, is modifiable.

Florida law and the last sentence of LSA-R.S. 13:1401 make it evident that plaintiff’s suit should have been filed in the Nineteenth Judicial District Court. For this reason, the judgment appealed from is annulled and reversed, and this case is remanded to the Family Court of East Baton Rouge Parish with instructions that it is to be transferred to the Nineteenth Judicial District Court. See LSA-C.C.P. art. 932. Costs of this appeal are to be paid by plaintiff-appellee. All other costs are to await final disposition.

REVERSED AND REMANDED.


author: WATKINS, Judge.

text:
    Carolyn Guidroz NAQUIN v. Kenneth J. NAQUIN.
    No. 14303.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 12, 1981.
    Stanley L. Perry, Galliano, for plaintiff-appellant Carolyn Guidroz Naquin.
    Francis Dugas, Thibodaux, for defendant-appellee Kenneth J. Naquin.
    Before COVINGTON, COLE and WATKINS, JJ.
   WATKINS, Judge.

This is an action for divorce in which judgment was rendered granting a divorce dissolving the marriage between Carolyn Guidroz Naquin and Kenneth J. Naquin, appellant and appellee in this appeal, respectively, and ordering Kenneth J. Naquin to pay $170.00 per month child support for support of their two minor children, Marz Naquin and Tracie Naquin, payable in the sum of $85.00 on the first of the month and the sum of $85.00 on the sixteenth of the month. The former wife has appealed seeking solely that the amount of child support be increased to $150.00 per month per child.

The parties to the present proceeding were granted a judgment of separation on June 5, 1979, which ordered the payment of $150.00 per month for the two minor children. In the petition for divorce, Mrs. Na-quin asked that payments be increased to $150.00 per month per child, or a total of $300.00 per month. As indicated, the judgment of divorce increased child support for the minor children to $170.00 per month, payable by $85.00 on the first of the month and $85.00 on the sixteenth of each month. The date of the judgment of divorce was November 7, 1980.

At trial on the merits held on October 27, 1980, the husband’s counsel stated that he had not been served with paragraph 5 of plaintiff’s petition, which was the paragraph requesting an increase in child support. The matter was held over until October 31, 1980, to permit service of paragraph 5 of the petition. The only version of the petition that is in the record was filed June 25, 1980, and contains paragraph 5 requesting an increase in child support. We therefore assume that verbal discussion of counsel concerning the necessity of serving paragraph 5 took place through error on the part of husband’s counsel and possibly mutual error of counsel.

In any event, contained in the pleading is an answer, a supplemental petition not directly pertinent for our purposes, and a supplemental answer. No paragraph of the original or supplemental answer either admits or denies the allegations of paragraph 5 of plaintiff’s original petition, in which an increase in the amount of child support is sought.

Appellant, Mrs. Naquin, contends on appeal that she is entitled to the full amount of child support sought in her petition ($150.00 per month per child) because (1) the answers filed did not respond to paragraph 5 of the original petition seeking an increase in child support and (2) the trial court abused its discretion when the amount of child support was not increased to the full sum sought, which appellant contends truly reflects the children’s needs and the husband’s ability to pay.

With respect to the first contention, even if there is no answer, and a default judgment is sought, proof of the demand must still be made. LSA-C.C.P. art. 1702. Thus, the wife was compelled to prove that the children were in need and that the husband had the ability to pay the amount sought. She could not rely simply on the fact that the allegation or contention contained in the petition was not directly answered. Nor, we note, did she in point of fact rely upon the fact the allegation or contention went unanswered. Rather she sought to prove the amount of child support at the trial. It is the obvious opinion of the trial court that she failed in this attempt.

The trial court did not render formal written or oral reasons for judgment. Rather, it simply stated in discussion with counsel in open court at the close of the trial that it did not think there was enough money (in the former husband’s and former wife’s funds) to go around.

Appellee testified that he had a net income of $840.00 per month. He worked offshore, seven days on and seven days off, and had living quarters and meals furnished free of charge while at work. During the seven days off he lived with his parents to save money. In spite of this, his expenses were in excess of $723.00 per month, plus medical, dental, and hospitalization insurance for the two children that he was obligated to pay under the divorce judgment. The appellant has a net income of $90.00 per week. She lists expenses of $748.00 per month for herself and the two children.

Thus, it appears that the trial court was correct in its observation that there was not enough money to go around.

The wife contends that the husband was obligated to work at a second job during his seven days off. We know of no jurisprudence requiring the party obligated to furnish child support to undertake two separate employments. We note that offshore work with seven days on and seven days off is considered a full time job.

Under the facts presented, we cannot say that the trial court abused its much discretion in setting child support as it did. Allbritton v. Allbritton, 393 So.2d 825 (La. App.2d Cir. 1981).

We affirm the judgment of the trial court, at appellant’s cost.

AFFIRMED.


author: COLE, Judge.

text:
    STATE of Louisiana, Through the DEPARTMENT OF HIGHWAYS v. Berlin P. DEVALL.
    No. 14308.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 12, 1981.
    Bernard L. Malone, Jr., Johnie Branch, Jr., Dept, of Highways, Baton Rouge, for plaintiff.
    James E. Kuhn, Denham Springs, for defendant.
    Before COVINGTON, COLE and WATKINS, JJ.
   COLE, Judge.

The issue in this expropriation case is whether or not the trial court committed manifest error in valuing the land at $5,000.00 an acre. After reviewing the record we conclude there has been no manifest error, therefore we affirm.

The disputed land consists of 3.645 acres which is part of an 18 acre tract located on Highway 1019 in Livingston Parish, near Watson, Louisiana. The State filed an expropriation petition on June 8, 1976, pursuant to the “Quick-taking Statute,” La.R.S. 48:441-460. The State deposited the sum of $9,842.00 into the registry of the court as an estimated amount due for the land. (This sum was based on the land being worth $2,700.00 an acre.) Mr. Devall answered the petition, questioning the need for the taking and alternatively demanding $100,000.00 for the land.

Trial was held and the testimony of various experts was offered. Mr. Devall’s expert, Mr. Kermit Williams, estimated the land to be worth $6,000.00 an acre. The State’s experts, Mr. John Allphin and Mr. Hugh Bullard, estimated the land to be worth $3,000.00 an acre and $2,700.00 an acre, respectively. The trial court rendered judgment in favor of the state as to the ownership of the land and in favor of Mr. Devall for $5,000.00 an acre (a total of $18,225.00), subject to a credit of the amount already deposited with the court.

Appellant argues the trial court committed manifest error in valuing the land at $5,000.00 an acre. It assumes the court was influenced by Mr. Williams’ appraisal and attacks the comparable sales used as being inaccurate.

The essence of appellant’s argument is that the trial court should have accepted its experts’ appraisals rather than a figure closer to the appraisal given by appellee’s expert. The matter of expert opinion testimony was discussed thoroughly in State, Department of Highways v. McPherson, 261 La. 116, 259 So.2d 33 (1972), rehearing denied 1972. The court noted it need not accept the opinion of an expert as an absolute verity and then stated as follows:

“Instead, the effect to be given to opinion testimony is governed by the weight the trier of fact accords to that testimony. The weight testimony is entitled to receive is determined by the professional qualifications and experience of the expert, the facts and studies upon which his opinion is based and, in case of land appraisals, his familiarity with the locality. La. Power and Light Co. v. Dixon, 201 So.2d 346 (La.App.1967). In all cases the possible bias of the witness in favor of the side for whom he testifies and the witness’ character and credibility bear upon the weight on the testimony.”
“These are all matters for the trier of fact. And when, as in this case, testimony of the witnesses is contradictory, the finding of the trier of fact will not be overturned unless manifest error appears in the record.”

The record reveals Mr. Williams is a highly qualified and experienced real estate appraiser who is very familiar with land in Livingston Parish. His comparables appear to be reasonable and his estimate well-founded. The trial court was apparently influenced somewhat by his testimony and we find no abuse of discretion.

For these reasons, the judgment of the trial court is affirmed. Appellant is to pay all costs permitted by law.

AFFIRMED.