author: KNOLL, Judge.

text:
    Mayor Joseph SAMPITE, Plaintiff-Appellee, v. NATCHITOCHES FIRE AND POLICE CIVIL SERVICE BOARD, Defendant-Appellant.
    No. 82-480.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 3, 1983.
    Charles E. Welsh, Shreveport, for defendant-appellant-appellee.
    Watson, Murchison, Crews, Arthur & Corkem, R. Raymond Arthur, Natchitoches, for plaintiff-appellee.
    Whitehead & McCoy, C.R. Whitehead, Jr., Natchitoches for defendant-appellee-appel-lant.
    Before STOKER, YELVERTON and KNOLL, JJ.
   KNOLL, Judge.

The single issue presented on appeal is whether the trial court committed an error of law in substituting its opinion for the decision of the Natchitoches Municipal Fire and Police Civil Service Board in refusing to recuse board member Siggie Silvie.

. Joe Sampite is the Mayor of Natchitoch-es, which operates under a home-rule charter. James E. Riechel was the Chief of Police subject to the Louisiana Fire and Police Civil Service Law. LSA-R.S. 33:2471, et seq. Mayor Sampite notified Chief Riechel by letter dated November 20, 1981 that Chief Riechel was discharged and terminated, enumerating his formal charges against Chief Riechel. An appeal was taken by Chief Riechel to the Natchitoches Municipal Fire and Police Civil Service Board by letter dated December 3, 1981, all in accordance with LSA-R.S. 33:2500 et seq.

The Board is comprised of five members, namely: Robert Hebert (a fireman and chairman of the board); L.A. Payne (a businessman); Dr. Larry Fields (Pastor of the First Baptist Church of Natchitoches); Richard de Vargas (a businessman); and Siggie Silvie (a policeman). The appeal was heard by the Board with all members present. Prior to the hearing Mayor Sam-pite filed a motion to recuse Siggie Silvie on the grounds that Siggie Silvie could not be fair and impartial. Mayor Sampite filed the motion because he had refused to allow Officer Silvie (a black citizen) to attend the FBI Academy after Officer Silvie was selected for this honor by the FBI. This resulted in a controversy which was publicized in area newspapers and television.

Mayor Sampite and Officer Silvie gave testimony before the Board on the motion to recuse. At the conclusion on the hearing, the Board had a roll call vote wherein they unanimously rejected the motion to recuse Officer Silvie.

The Board proceeded to conduct the hearing concerning the termination and discharge of Chief Riechel. Mayor Sampite obtained a stay order from the District Court, restraining and enjoining the Board from hearing the case, and, further ordering the Board to show cause why Officer Silvie should not be recused. Both the Board and Chief Riechel filed Writs of Cer-tiorari, Prohibition and Mandamus to this court under Docket No. 8861. We set aside and dismissed the stay order. Mayor Sam-pite applied for a rehearing which was refused. He applied for writs to the Louisiana Supreme Court which were likewise denied.

Chief Riechel’s hearing before the Board resumed on March 8,1982. Four of the five members were present, to include Officer Silvie. The Mayor objected to the hearing before four members rather than five. The chairman overruled his objection. Four board members constituted a quorum. Three votes were required to override the Mayor’s disciplinary action in firing Chief Riechel.

At the conclusion of the hearing, the Board voted three to one in favor of reinstating Chief Riechel, but imposing a fifteen day suspension without pay.

The Mayor appealed the Board’s decision to the District Court. Both district judges recused themselves. The Honorable W.C. McCain, Jr., District Judge from the Thirty-Fifth Judicial District was appointed judge ad hoc.

The trial court held that Officer Silvie should have been recused, thus leaving only three members of the board present which would not constitute a quorum as provided by LSA-R.S. 33:2476(M).

§ 2476. Municipal fire and police civil service boards
M. The board shall meet at any time after its original meeting upon the call of the chairman, who shall give all members of the board due notice thereof. The chairman of the board shall call, and the members of the board shall attend, one regular meeting of the board within each quarterly period of each calendar year. If a chairman fails or refuses to call such quarterly meeting of his board, the members of the board shall meet upon the written call of any two members mailed ten days in advance of the meeting. Four members of the board shall constitute a quorum, and the concurring votes of any three members comprising the quorum of the board shall be sufficient for the decision of all matters to be decided or transacted by it. Meetings of the boards shall be open to the public.

The trial court therefore declared the Board’s actions null and void, remanding the case to the Board for a new hearing. The Natchitoches Municipal Fire and Police Civil Service Board as well as Chief Riechel have perfected this appeal. We reverse and remand.

LSA-R.S. 33:2501 limit the district court’s authority to review civil service appeals. LSA-R.S. 33:2501 in part states:

“... This hearing [by the district court] shall be confined to the determination of whether the decision made by the board was made in good faith for cause under the provisions of this Part. No appeal to the court shall be taken except upon these grounds.”

The obvious intent is that the reviewing court consider the record of the board proceedings as already constituted, and confine its judicial review to the determination of whether the board’s decision was made in good faith for legal cause. Bland v. City of Houma, 264 So.2d 729 (La.App. 1st Cir.1972), writ denied 266 So.2d 713 (La.1972); Broyles v. Baton Rouge Municipal Fire and Police Board, 340 So.2d 349 (La.App. 1st Cir.1976), writ denied 341 So.2d 1121 (La.1977); Trahan v. City of Jennings Fire and Police Civil Service Board, 411 So.2d 1242 (La.App. 3rd Cir.1982). The district court can only review the record and look to the evidence presented before the board, and, review this evidence in light of the presumption that the board found facts sufficient to afford a legal basis for its decision. McIntosh v. Monroe Municipal Fire and Police Board, 389 So.2d 410 (La.App. 2nd Cir.1980), writ denied 395 So.2d 1363 (La.1981); Dumez v. Houma Municipal Fire and Police Civil Service Board, 408 So.2d 403 (La.App. 1st Cir.1981). Unless the record reveals a lack of sufficient evidence to support the decision of the board, or, an abuse of its discretion, its decision will not be overturned. Petrus v. Guin, 378 So.2d 1016 (La.App. 2nd Cir.1979); McIntosh, supra; City of Houma v. Houma Municipal Fire and Police Civil Service Board, 405 So.2d 1132 (La.App. 1st Cir.1981), writ denied 410 So.2d 1134 (La.1982); Trahan, supra.

There is nothing in the record to support that Officer Silvie would have been prejudiced in his findings. He was not present when the controversy took place. He repeatedly refused comment when the news media attempted to interview him. There is no evidence that he was a witness to any of the conflicts between the Mayor and Chief Riechel. At the Board hearing Officer Silvie testified, under oath, that he could make a fair and impartial judgment:

“Q. Mr. Silvie, do you know of any reason that you could not serve here with the evidence presented here, on whatever charges that we might finally get around to listening to, except in a fair and impartial manner?
A. I know of none.
Q. Will you listen to the testimony and the law and things of that nature, and reach your verdict, in a fair and impartial manner?
A. That’s true, I will.
Q. Do you have any prejudged notions, or any preconceived notions or any preconceived ideas, insofar as your ruling in this matter, at this point in time?
A. No, I don’t.”

For the foregoing reasons, the ruling of the District Court is reversed and remanded to determine whether the Municipal Fire and Police Civil Service Board committed manifest error, in reinstating Chief James E. Reichel, subject to a suspension of fifteen days without pay.

REVERSED AND REMANDED.


source: Caselaw Access Project

license: Public Domain

text:
    James GIBSON, Plaintiff-Appellee, v. WINN DIXIE LOUISIANA, INC., Defendant-Appellant.
    No. 82-483.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 3, 1983.

      Brinkhaus, Dauzat & Falgoust, Jerry Fal-goust, Opelousas, for defendant-appellant.
    Kenneth Pitre, Eunice, for plaintiff-ap-pellee.
    Before STOKER, YELVERTON and KNOLL, JJ.
   KNOLL, Judge.

This appeal involves a dispute over a slip-fall injury and the amount of damages awarded to the plaintiff-appellee by the jury.

Plaintiff filed a suit against Winn Dixie Louisiana, Inc., for damages in the sum of $175,000.00 for injuries he sustained on January 11, 1981, after he slipped and fell in the defendant’s store in Eunice. The defendant denied any liability contending that plaintiff’s own negligence was the proximate cause of the accident.

A trial by jury was held on March 29, 1982. At the conclusion of the trial the jury found in favor of the plaintiff (9 to 3) awarding him damages in the sum of $35,-000.00, which included medical expenses.

The issues on appeal by the defendant-appellant are:

(1) Whether the jury committed manifest error in its finding that a foreign substance on the floor caused the accident; and
(2) Whether the jury’s award of damages was an abuse of discretion.

The plaintiff-appellee answered the appeal for an increase in the damage award.

FACTS

On January 11, 1981, shortly after 6:00 o’clock P.M., the plaintiff James Gibson, went into the Winn Dixie Store in Eunice to purchase some anti-freeze on the west side of aisle number two; he proceeded east to get a can of motor oil. Suddenly his right foot slipped, causing him to fall on his tailbone. The push cart he was using fell on top of him.

He attempted to get up but was unable to do so because of the onsetting pain. When he hollered for help, a patron in the store came to his aid. The assistant manager, Sidney Jones, called for an ambulance and the police. Officer Tony Fuselier immediately responded to the call, staying with the plaintiff until the ambulance arrived. Officer Anthony Reed also responded to the call, but left the scene of the accident since Officer Fuselier had the situation under control.

The Acadian Ambulance Service put the plaintiff on a stretcher and took him to Moosa Memorial Hospital in Eunice. He was hospitalized for ten days. While in the hospital Dr. Reginald Segar was his treating physician. His ex-wife, present wife, and his ex-sister-in-law were notified of the accident. They met him at the emergency room and attended him while he was hospitalized.

Mr. Gibson owned carnival rides. He contracted primarily with Rotary Clubs and Lion Clubs throughout the country. He requested Dr. Segar to release him from the hospital so he could attend a convention in Lincoln, Nebraska to schedule his showings. Due to the pain he was experiencing, he was unable to attend the convention.

FOREIGN SUBSTANCE ON THE FLOOR

The appellant, Winn Dixie Louisiana, Inc. contends the jury committed manifest error in finding that a foreign substance on the floor caused the appellee to slip and fall. To uphold this contention, the record must negate the findings of the jury. LSA-Const. Art. 5, § 10(B) reads:

Art. 5, § 10 Courts of Appeal; Jurisdiction
Section 10. (A) Jurisdiction. Except in cases appealable to the supreme court and except as otherwise provided by this constitution, a court of appeal has appellate jurisdiction of all (1) civil matters decided within its circuit and (2) matters appealed from family and juvenile courts, except criminal prosecutions of persons other than juveniles. It has supervisory jurisdiction over cases in which an appeal would lie to it.
(B) Scope of Review. Except as limited to questions of law by this constitution, or as provided by law in the review of administrative agency determinations, appellate jurisdiction of a court of appeal extends to law and facts.

Absent a showing of manifest error in the record, the trier of fact’s finding (in this case a jury) will not be disturbed. Arceneaux v. Domingue, 365 So.2d 1330 (La.1979).

Appellant introduced testimony of several witnesses who testified they did not see any foreign substance in the vicinity of the accident. Appellee introduced testimony of Officer Fuselier who testified that he saw a small residue of clear oil which looked like “someone had set a box down and lifted the box up and left a spot on the floor.” Officer Fuselier also testified he noticed a line that appeared like a scuff mark within the rectangular shaped oil spot. This testimony was reinforced by the testimony of Officer Reed who also saw the oil spot. The appel-lee, Mrs. Gibson, and his ex-sister-in-law, Mrs. Bordelon, testified that they saw an oil substance underneath the heel of appellee’s right boot while they were all in the emergency room.

In the presence of the jury defense counsel pointed out certain inconsistencies in the testimony of Officer Fuselier by use of a previously recorded statement. Their evaluation of credibility and inferences of fact should not be disturbed even though the appellate court may differ with the jury’s conclusions. Cadiere v. West Gibson Products Company, Inc., 364 So.2d 998 (La.1978); Arceneaux, supra.

We find the record supports the jury’s findings.

AWARD OF DAMAGES

Witnesses for both the appellant and the appellee testified that Mr. Gibson was in severe pain at the scene of the accident. Dr. Segar’s diagnosis, immediately after Mr. Gibson was admitted, was low back spasms, with pain going down his right leg. He had a positive straight leg raising, indicative of some nerve damage of the right side of the spine. Dr. Segar’s diagnosis was “an acute muscular spasms, strained type injury of the lower back along with possibility of sciatic nerve type injury and of course at that time we could not exactly rule out a disc problem.”

On February 11, 1981, Dr. Segar did not feel that Mr. Gibson had made significant improvement. He referred Mr. Gibson to a neurosurgeon, Dr. Young, whose report was introduced in evidence, and states:

“My assessment then is that this man probably does have a lumbar radiculopa-thy. I advised him that I completely agreed with your management up until this point since the vast majority of these resolve in time. However, since he has failed to resolve by this time, I would recommend lumbar myelography. The patient is to check into the appropriate financial arrangements and will be back in touch with me.”

At the trial Dr. Segar’s diagnosis was that Mr. Gibson had a definite type of sciatic nerve irritation, in conjunction with lumbar and muscular spasms, and, needed a myelo-gram to confirm the probable disc.

Since Mr. Gibson could not afford the myelogram, nor pay for the treatment of Dr. Segar, he sought the services of Dr. Jerry Napoli, a local chiropractor. He subsequently sought treatment of the Veterans Administration in Alexandria. The medical expenses he incurred totaled $2,707.85.

It is only after an analysis of the facts which discloses an abuse of discretion that the award may, on appellate review, for articulated reasons, be considered. Olds v. Ashley, 250 La. 935, 200 So.2d 1 (1967) and its progeny. This issue was recently before this court in Le Blanc, et ux. v. Montgomery Ward & Company, Inc., 420 So.2d 1320 (La. App. 3rd Cir.) wherein we held:

“The standard of appellate review visa-vis damage awards was set forth in Reck v. Stevens, 373 So.2d 498 (La.1979) as follows:
‘Before a trial court award may be questioned as inadequate or excessive, the reviewing court must look first, not to prior awards, but to the individual circumstances of the present case. Only after analysis of the facts and circumstances peculiar to this case and this individual may a reviewing court determine that the award is excessive.
With regard to appellate review of the much discretion of the trier of fact in the award of general damages, La.C. Civ.P. art. 1934(3), we stated (after exhaustive review of the facts, and reversing the appellate court for disturbing (on the basis of prior awards) the trier of fact’s award) in Lomenick v. Schoeffler, 250 La. 959, 200 So.2d 127, 132 (1967) (Italics ours):
“The law is plain and means what it says, and it is the duty of all appellate courts to follow it. Under this rule the amount of damages assessed by the judge or jury should not be disturbed unless the appellate court’s examination of the facts reveals a clear abuse of the discretion vested in the trial court.... The facts and circumstances in the other neck injury awards, relied upon by respondent as showing that this award was all out of proportion with the previous awards for similar injuries, causes them to have little or no relevancy for purposes of demonstrating the excessiveness of this award.”
[3] Thus, the initial inquiry must always be directed at whether the trier court’s award for the particular injuries and their effects upon this particular injured person is, a clear abuse of the trier of fact’s “much3 discretion,” La.Civ.C. art. 1934(3) in the award of damages. It is only after articulated analysis of the facts discloses an abuse of discretion, that the award'may on appellate review, for articulated reason, be considered either excessive, Carollo v. Wilson, 353 So.2d 249 (La.1977); Schexnayder v. Carpenter, 346 So.2d 196 (La.1977), or insufficient, Olds v. Ashley, 250 La. 935, 200 So.2d 1 (1967). Only after such determination of abuse has been reached, is a resort to prior awards appropriate under Coco for purposes of then determining what would be an appropriate award for the present case.
[4] In the initial determination of excessiveness or insufficiency, an examination of prior awards has a limited function — if indeed the facts and circumstances of the prior awards are closely similar to the present. The pri- or awards may serve as an aid in this determination only where, on an articulated basis, the present award is shown to be greatly disproportionate to past awards (not selected past awards, but the mass of them) for (truly) “similar” injuries, see Coco [v. Winston Industries, Inc. ] at 341 So.2d [332] 334 (La.1977).’ ”

Our review of the record does not indicate that the trial jury abused its “much discretion” in the damage award. - LSA-C.C. Art. 1934(3).

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

AFFIRMED.


author: YELVERTON, Judge.

text:
    Maria GOULAS, Plaintiff-Appellant, v. Dale Joseph GOULAS, Defendant-Appellee.
    No. 82-487.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 3, 1983.
    D. Warren Ashy, Lafayette, for plaintiff-appellant.
    J.B. Willis, St. Martinville, for defendant-appellee.

      Before STOKER, YELVERTON and KNOLL, JJ.
   YELVERTON, Judge.

Maria Goulas brought suit against her brother, Dale Goulas, for rescission of a 1977 sale of land on the ground of lesion beyond moiety. From a judgment dismissing her suit, she has appealed. We reverse and remand.

Maria Goulas owned a tract of land consisting of 6.1 arpents (about 5.2 acres) in St. Martin Parish. She lived on the property. On July 20,1977, she and her brother signed an act of cash sale by means of which she conveyed the land to him. The recited price was $200 cash “and other good and valuable consideration”. The act of sale explained the “[additional consideration [as] being” a usufruct for life upon the specifically described half acre where her home and garden were situated.

On June 26,1981, plaintiff filed a petition seeking to rescind the sale on the ground of lesion beyond moiety. After trial the district court concluded that Maria Goulas had failed to prove lesion beyond moiety by the required strong and convincing standard. In its oral reasons the trial court indicated that if the price had been only $200 cash, the transaction would be clearly lesionary. However, the court assumed, as did the attorneys, that the usufruct was an additional consideration as stated in the deed, and finding that the plaintiff had offered no evidence to prove the value of the usu-fruct, the court held that Maria Goulas had failed to prove that the price paid was less than one-half of the value of the thing sold.

This is the first issue on appeal. We find it necessary to reverse the decision that the sale was not lesionary. The trial court erred in considering the usufruct for life over the half acre as additional consideration. It makes no difference that the act of sale characterized the usufruct as a portion of the consideration, or that this illiterate vendor might have thought of it as a consideration. The usufruct never left Mrs. Goulas. She was the full owner of the half acre before the conveyance and in the act of sale she merely retained, or reserved the usufruct to herself, conveying to her brother only the naked ownership. He who is already the owner of a thing, can not validly purchase it. La.Civ.Code art. 2443. So this issue becomes simply whether Mrs. Goulas proved by clear and convincing evidence that the $200 price given was less than half the value of the property sold.

In an action for rescission for lesion beyond moiety, the vendor must prove by clear and convincing evidence that the price given was less than one-half of the value of the thing sold. La.Civ.Code arts. 1861(2), 2591; and Bisco v. Middleton, 383 So.2d 1047 (La.App. 1st Cir.1980). The standard to be applied to determine the value of the property is fair market value at the time of the sale. La.Civ.Code arts. 1870,1871,2590; and Bisco v. Middleton, supra.

The fair market value of the property on the date of sale was established to have been $8,350 for the improvements (all located on the half acre subject to the usu-fruct), and between $3,000 and $4,000 an acre for the land. These valuations, undisputed in the record, make the sale clearly subject to rescission for lesion beyond moiety.

The second issue in the case involves primarily a procedural question. Defendant’s answer to the suit consisted of a one-paragraph general denial of all allegations. At trial defense counsel attempted to introduce evidence to show that the July 1977 sale was in reality a donation in disguise. The plaintiff objected to the introduction of this evidence on the basis that such evidence and allegations constituted an affirmative defense which the defendant failed to plead in his answer. The district court overruled the objection and allowed the evidence. The trial court upheld the conveyance as a sale and therefore never considered whether the evidence could support the validity of the conveyance as a donation in disguise.

Plaintiff contends that in a suit for rescission based on lesion beyond moiety, the defense that the conveyance was in fact a donation in disguise is an affirmative defense and, as such, required to be specially pleaded. The issue is important because if the trial court properly admitted the evidence, it is now our appellate duty to consider it and determine whether the conveyance can be upheld as a donation. If the defense was not properly raised, this evidence cannot be considered.

Special defenses must be affirmatively pleaded. La.C.C.P. art. 1003. Explaining this article, the Supreme Court in Webster v. Rushing, 316 So.2d 111 (La.1975), said:

Even before the adoption of the 1960 Code of Civil Procedure, a defendant had to plead special defenses affirmatively in his answer.5 Presently, it is provided in article 1003 of the Code of Civil Procedure that the answer “shall set forth all affirmative defenses as required by Article 1005.”6
Article 1005, in addition to listing certain affirmative defenses7 which must be specially pleaded, contains the omnibus recital “and any other matter constituting an affirmative defense.” (Emphasis added.) Thus, the listing of the named affirma-five defenses in this article are merely illustrative. An affirmative defense raises new matter which, assuming the allegations in the petition to be true, constitutes a defense to the action and will have the effect of defeating plaintiff’s demand on its merits.8 ...

In the instant case the defense that the sale was in reality a donation in disguise raises a new issue which, assuming the allegation of plaintiff’s petition to be true, would defeat plaintiff’s claim on the merits. Therefore, it was clearly an affirmative defense which was required to be specially pleaded.

The purpose of requiring the defendant to plead a special defense is to give fair and adequate notice of the nature of the defense so that plaintiff is not surprised. Webster v. Rushing, supra. Here, no mention of this defense was made either in defendant’s answer or at any time prior to trial. The defendant’s general denial would not put plaintiff on notice of defendant’s contention that the conveyance was in reality a donation in disguise. Since the plaintiff timely objected to the introduction of such evidence, the trial court erred in failing to exclude the evidence from the record. See Webster v. Rushing, supra. Therefore, we cannot consider the issue of whether the conveyance was a donation in disguise.

Accordingly, we hold that the sale is subject to rescission for lesion beyond moiety. Since there is no evidence in the record as to the value of the defendant’s naked ownership of the half acre, we will remand for the taking of additional evidence on this point. After the additional evidence has been adduced, the trial court is directed to render an interlocutory decree establishing the fair market value of the property at the time of sale and ordering the defendant to exercise his option either to rescind the sale or to have it confirmed on paying the full value within the period allowed by the decree. See La.Civ.Code arts. 1877 and 2591. After the defendant declares his choice, the district court shall then render a final decree. La.Civ.Code art. 1880.

For the reasons assigned the judgment of the district court is reversed and the case is hereby remanded for further proceedings consistent with this decision. All costs to be borne by the appellee.

REVERSED AND REMANDED.

      . The act of sale also contains a conveyance of all of Mrs. Goulas’ right, title and interest in about 120 acres of land in St. Martin Parish. However, there was testimony that she had no record interest in that acreage, and apparently that is correct, since neither the court nor counsel paid any attention to that property at trial, and it is not mentioned on appeal. Therefore, we are concerned only with the 5.2 acres.

      . The entire answer consists of the following:
      “NOW INTO COURT, through undersigned counsel, comes DALE JOSEPH GOULAS, sought to be made defendant herein, to respond to the plaintiff’s petition herein, by denying each and every allegation thereof either in fact or for lack of information to justify belief or in order to require specific proof.”

      . It could not be seriously contended that because plaintiffs petition alleged lesion and lesion beyond moiety necessarily involves a sale, defendant’s general denial would put at issue whether there was a sale, thus opening the door to proof of a donation. To permit what ought to be an affirmative defense to be hidden away like that and sprung on an unsuspecting plaintiff on the day of trial, seems patently unfair. In the context of the pleadings, the gravamen of which is lesion, a one-paragraph general denial would no more put a plaintiff on notice that a sale was disputed than it would that a conveyance was disputed, and certainly defendant does not dispute a conveyance.


author: GUIDRY, Judge.

text:
    STATE of Louisiana v. Irma Mae SMITH.
    No. CR82-490.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 3, 1983.
    Charles L. Scott and Edward Larvadain, Larvadain & Scott, Alexandria, for appellant.
    Robert Levy and Cammille Giordano, Asst. Dist. Attys., Alexandria, for appellee.
    Before GUIDRY, CUTRER and LA-BORDE, JJ.
   GUIDRY, Judge.

The appellant, Irma Mae Smith, was convicted on one count of theft of property having a value in excess of five hundred dollars and one count of theft of property having a value in excess of one hundred dollars but less than five hundred dollars, both in violation of LSA-R.S. 14:67. The trial judge sentenced her to serve concurrent prison terms of five years and two years at hard labor. The appellant asserts that (1) the sentences imposed are excessive and violative of the Louisiana Constitution; and, (2) the trial judge failed to adequately state the reasons for imposing the sentences as required by LSA-C.Cr.P. Art. 894.1.

Defendant, the unmarried mother of six children born out of wedlock, was convicted of wrongfully receiving $4,682.00 in welfare benefits and $161.00 in food stamps over a two year period. The state’s evidence showed that defendant made wilful misrepresentations to her social workers concerning her eligibility for aid to families with dependent children (AFDC) and food stamps. On three occasions, in applying for AFDC benefits, she reported that the natural father of her children, Frank Warren, Jr., took no interest in the children and did not contribute in any manner to their support. Eligibility for AFDC benefits is dependent upon the deprivation of parental support through the continuous absence or incapacity of at least one parent. The continuous absence must be of a nature as to “either interrupt or terminate the parent’s functioning as a provider of maintenance, physical care or guidance for the child”. Each time the defendant applied for AFDC benefits, she was informed of her duty to give accurate information and to immediately report changes in her personal or financial condition.

Evidence produced at trial showed that Frank Warren, Jr. did in fact take an active role in the raising of the children. He was present in the defendant’s home on most weekends, and occasionally during the week. He provided money for rent, utilities, and clothing for the children. It was clearly shown that there was no “parental deprivation” present so as to make the defendant eligible for AFDC benefits, and that the defendant was aware of this when she made these misrepresentations to the Office of Family Security.

Eligibility for food stamps is based for the most part on household income. In applying for food stamps, the defendant failed to report that she periodically received money from her boyfriend as well as from Frank Warren, Jr. She also failed to report that a member of her household was earning a paycheck. She also reported that she owned no automobiles, although she in fact owned a 1972 Cadillac. The defendant would have been entitled to food stamps had she been truthful in her application, but the amount would have been less. Testimony showed that the amount she would have been entitled to had she been truthful was $161.00 less than the amount she actually received.

The defendant contends that the sentences imposed by the trial court are excessive and violative of Art. 1, § 20 of the Louisiana Constitution of 1974. She also contends that the trial judge failed to comply with LSA-C.Cr.P. Art. 894.1, which provides guidelines to be followed by the trial judge in imposing sentence. Our careful review of the record convinces us that it is necessary to remand this case to the trial court for resentencing in compliance with LSA-C.Cr.P. Art. 894.1. Because resen-tencing is necessary, we do not reach the issue of excessiveness of the sentence imposed.

LSA-C.Cr.P. Art. 894.1 lists aggravating and mitigating factors to be considered by the trial judge in imposing sentence. Subsection (C) of the article provides: “The court shall state for the record the considerations taken into account and the factual basis therefor in imposing sentence.” While the judge need not articulate every aggravating and mitigating circumstance, the record must adequately reflect that he considered these guidelines in particularizing the sentence to the defendant. State v. Ray, 423 So.2d 1116 (La.1982); State v. Duncan, 420 So.2d 1105 (La.1982). The judge should indicate that he considered not only the factors militating for incarceration, but also any factor mitigating against it. State v. Franks, 373 So.2d 1307 (La.1979); State v. Ray, supra.

In imposing sentence upon the defendant, the trial judge took note of her extensive criminal record and the fact that her offenses were an affront not only to those persons truly in need but also to the taxpayers of the state and the nation who finance the programs defrauded by the defendant. He also observed the defendant’s apparent lack of remorse for her crimes, evidenced by her displaying a “Welfare Cadillac” license plate on her 1972 Cadillac. While these factors may bear on the appropriateness of a sentence, they are not the considerations which are required to be stated in the record by LSA-C.Cr.P. Art. 894.1.

Although the reasons stated by the trial judge may provide factual support for a finding of one or more of the aggravating circumstances, the trial judge failed to state what those aggravating circumstances were, as required by the statute. In addition, the trial judge’s reasons for imposing sentence give no indication that he considered any circumstances which would mitigate against the imposition of a prison sentence. The record must reflect that mitigating as well as aggravating circumstances have been considered, even if the mitigating circumstances are minimal. State v. Duncan, supra; State v. Ray, supra.

For the above and foregoing reasons, the sentence imposed by the trial court is vacated, and the case is remanded for resentenc-ing in accordance with the views expressed herein.

REMANDED FOR RESENTENCING.


author: STOKER, Judge.

text:
    SUCCESSION OF Thomas M. SKINNER.
    No. 82-491.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 3, 1983.
    Charles F. Wagner, Pineville, for plaintiff-appellant.
    Davis & Saybe, Michael H. Davis, Alexandria, for defendant-appellee.
    Before STOKER, YELVERTON and KNOLL, JJ.
   STOKER, Judge.

Thomas M. Skinner died intestate on December 23, 1981, survived by his wife, Martha Singletary Skinner, and two children of a previous marriage, Sharon Skinner Fuller and Tom M. Skinner, Jr. On a Rule to Show Cause brought by Mrs. Skinner, the trial court rendered judgment granting her a legal usufruct over the decedent’s one-half of the community property acquired during the marriage. The children appeal.

At issue in this appeal are LSA-C.C. arts. 890 and 916 as enacted by Acts 1981, Nos. 919 and 911, respectively, and the repealing provisions contained in those acts. Article 890 as enacted by Act 919 provided:

“If the deceased spouse is survived by descendants, and shall not have disposed by testament of his share in the community property, the surviving spouse shall have a legal usufruct over so much of that share as may be inherited by the descendants. This usufruct terminates when the surviving spouse contracts another marriage, unless confirmed by testament for life or for a shorter period.
“The deceased may by testament grant a usufruct for life or for a shorter period to the surviving spouse over so much of the separate property as may be inherited by issue of the marriage with the surviv- or or as may be inherited by illegitimate children.
“A usufruct authorized by this article is to be treated as a legal usufruct and is not an impingement upon legitime.
“If the usufruct authorized by this article affects the rights of heirs other than children of the marriage between the deceased and the surviving spouse, or affects separate property, security may be requested by the naked owner.”

Article 916, as enacted by Act 911 of 1981, is identical except for the second paragraph which reads:

“The deceased may by testament grant a usufruct for life or for a shorter period to the surviving spouse over all or part of his separate property.”

The conflict in the provisions of these articles as amended in 1981 has no effect on the outcome of this case. The paragraph in question deals with granting a legal usu-fruct by testament over separate property. We are dealing here with an intestate succession and a legal usufruct over community property.

Counsel for appellants states in his brief, “The legal issue to be decided in this case is when is the effective date of Civil Code Article 890.” We disagree. As noted by the trial judge, the effective date of Article 890, as enacted by Act 919, was provided by the statute itself to be January 1, 1982. It is clearly not applicable to the heirs in this succession.

The law controlling this case is LSA-C.C. art. 916, as enacted by Act 911, which had an effective date of September 11, 1981. The first paragraph of that article expressly provides for a legal usufruct in favor of the surviving spouse over community property. The first paragraph of LSA-C.C. art. 890 is identical and therefore would have had the same effect except that it did not become effective until January 1, 1982.

Even if Article 916 was repealed by Act 919, that act was not effective until January 1,1982. Thus Article 916, as enacted by Act 911, was in effect at least from September 11, 1981, through December 31, 1981.

For the foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED.

      . Article 890 was brought into conformity with Article 916 by Acts 1982, No. 445 so as to be identical in all provisions.


text:
    Geraldine LASTRAPES, Plaintiff-Appellee, v. CNA INSURANCE COMPANY, Defendant-Appellant.
    No. 82-494.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 3, 1983.

      Guglielmo & Lopez, James Lopez, Opelou-sas, for defendant-appellant.
    Morrow & Morrow, J. Michael Morrow, Opelousas, for plaintiff-appellee.
    Before STOKER, YELYERTON and KNOLL, JJ.
   YELVERTON, Judge.

This worker’s compensation case is before us on appeal for the second time. The first appeal resulted in a remand, 401 So.2d 658.

In the present appeal we are concerned with only two issues: (1) whether on remand defendant has shown that some form of gainful employment is regularly and continuously available to plaintiff within reasonable proximity to her residence, and (2) penalties and attorney’s fees.

On the first appeal a different panel of this court affirmed the finding of the trial court that plaintiff suffered a job-related accident which rendered her totally and permanently disabled. Further, the majority of that panel concluded that plaintiff had proved that substantial pain placed her at a disadvantage in the competitive labor market, and that she had therefore made out a prima facie showing for classification in the odd lot category. The remand was for the purpose of giving defendant the opportunity to show that some form of gainful employment was regularly and continuously available to plaintiff within reasonable proximity to her residence, considered by the majority of that panel to be mandated by Dusang v. Henry C. Beck Builders, Inc., 389 So.2d 367 (La.1980). Because of its determination that a remand was necessary, this court on the first appeal did not consider the appeal from the award of penalties and attorney’s fees.

Although the facts regarding the already determined issue of permanent and total disability are fully reported at 401 So.2d 658, for the sake of convenience we will briefly reiterate the facts before considering the specific issues before us.

Plaintiff, Geraldine Lastrapes, was a registered nurse employed at St. Luke’s General Hospital, a small, rural hospital in Ar-naudville, Louisiana. Her husband was the administrator of the hospital and also the secretary of the Board of Directors. Ms. Lastrapes injured her back on April 26, 1979. An orthopedist diagnosed the injury as a bulging disc; a neurosurgeon, a ruptured disc. The pain factor was found and affirmed to be substantial. Although she lost some time from work, plaintiff never stopped working. Because of the peculiar relationship that she and her husband had with the hospital, plaintiff’s needs were accommodated; in the words of the trial court, she “works when she can and quits as she wishes”. Prolonged sitting, prolonged standing, extra walking, and bending aggravated the otherwise rather constant pain.

The above are established facts already examined on the first appeal and we will now consider the issues before us following remand.

Proof of Other Employment Opportunities

To show that some form of gainful employment was regularly and continuously available to plaintiff within reasonable proximity to her residence, defendant offered one witness. He was Curtis Charrier, a vocational consultant. He described his job as determining what residual functional capacity a handicapped person has, based on considerations of age, education, work history, and the medical evidence. His function also involved making job market surveys to determine job availability. It was his opinion, after having read the entire record at the first hearing, including the medical depositions, that there were nursing jobs plaintiff could still do. She could work in a hospital blood bank as a blood bank nurse, because these nurses stand and sit alternately, and walk around. Or, she could be a doctor’s office nurse, which again requires standing and sitting alternately, and some walking. She could do these things in Arnaudville. In nearby larger hospitals in Lafayette, she could be a clinical instructor of nurses, qualified by her eight or nine years experience as a Registered Nurse. Or, she could do private duty nursing of the “sitter” variety. She could do insurance physicals for private firms because this involves taking blood pressure and asking questions, and an occasional short drive out of the office, and it also involves alternate standing and sitting. He thought there were some of these jobs open in Lafayette.

Also, according to this witness, plaintiff could be a self-service gasoline station cashier, or a restaurant cashier, or a hotel desk clerk, or a cashier in a clothing store — all of which require sitting and standing alternately, and some walking around. Charrier testified that there were job openings in the Amaudville-Lafayette area for some of these described employment opportunities.

Plaintiff testified again on remand and repeated substantially what she had said at the first trial. She has continued to work at St. Luke’s with fair regularity. However, she works pretty well on her own schedule. If she hurts too much to go to work, she does not go. If she needs to rest at work, she does. If she needs to go home, she goes home.

Based on the testimony on remand, the trial court concluded that defendant had failed to prove that plaintiff could perform any of the described job opportunities without suffering substantial pain. We agree.

What primarily distinguishes Mrs. Lastrapes’ present employment situation is that she is virtually free to subordinate her job responsibilities and her working hours to the exigencies of her physical problem. In none of the other job opportunities described by the expert was this degree of independence from job responsibilities or schedule taken into account. The employer failed to prove that any job was available to Ms. Lastrapes that would enable her to delegate responsibilities at will, call for assistance when needed, elect not to report to work, take an impromptu rest, or spontaneously leave the job and go home — all of which are privileges she enjoys without restriction in her present employment.

We therefore conclude, as did the trial court, that defendant has failed to rebut the prima facie showing of odd lot categorization.

We turn now to the remaining issue, penalties and attorney’s fees.

Penalties and Attorney’s Fees

At the initial trial the district court found that the failure of the defendant to pay compensation benefits and medical expenses was arbitrary and awarded penalties and attorney’s fees in the amount of $5,000. After remand the trial court increased attorney’s fees to $6,000. Appellee has answered the appeal seeking an increase in this award. Appellant urges that penalties and attorney’s fees should be disallowed entirely, adopting as its reasons the concurring opinion of one judge of the appellate panel which originally heard this case, 401 So.2d, at 662.

A number of medical bills were paid by the insurer following the injury through June 18, 1979. After that date a new claims representative, Mitzi Melancon, took over for the defendant insurer and no further medical expenses were paid. No compensation benefits have ever been paid.

The employer’s first report of injury was dated May 15, 1979, and received by the insurer on May 17. At the trial Ms. Melan-con testified as to her reasons for discontinuing the payment of medical and refusing to commence compensation. One was that a witness whose name appeared on the employer’s first report of the accident did not in fact witness the accident. This can hardly be relied on as proof that the accident did not happen. All it means is that the named witness was not in fact a witness. We find abundant evidence in the record available to Ms. Melancon at that time which supports a finding that an accident did happen.

Another factor Ms. Melancon testified that she relied on was a number of discrepancies concerning the date of the onset of pain and pre-existing disability as reported by Dr. Olivier. The report to which Ms. Melancon referred was a report styled “Disability Claim Report” submitted by plaintiff and in part filled out by Dr. Olivier as attending physician, and signed by him. This report, dated September 15, 1979, and received by the insurer on September 17, 1979, indicated that plaintiff was totally disabled for one month and that even then she could only return to light duty. The only reference that the doctor’s portion of this report makes as to the date of the injury is the notation that it was “unknown”.

A careful reading of the record shows that while Ms. Melancon was purportedly testifying from this report, what she was actually referring to were some statements taken out of context from Dr. Olivier’s deposition taken almost a year later and after suit was filed. She was reading into the report of September 1979 information that could not have been known to her until after June 20,1980, the date of Dr. Olivier’s deposition. By that time the fact of an accident was no longer an issue; the focus of attention was then on the extent of disability.

Finally, Ms. Melancon testified that she had no proof of disability and was awaiting lost-time records from plaintiff’s employer. However, there was testimony that the time records were supplied to her first over the telephone, which she admitted receiving, and later in writing. Moreover, the report of Dr. Olivier in September, 1979, on which Ms. Melancon relies, establishes that plaintiff would be unable to return to the full duties of her employment for an uncertain period of time.

A trial court’s determination that a refusal to pay benefits is arbitrary, capricious and without probable cause is partially a factual determination which will not be disturbed in the absence of manifest error. Lofton v. Louisiana Pacific Corporation, 410 So.2d 1171 (La.App. 3rd Cir.1982). Moreau v. Houston General Ins. Co., 386 So.2d 151 (La.App. 3rd Cir.1980). We find no manifest error in the trial court’s conclusions that the insurer was arbitrary and capricious in terminating medical benefits and in failing to commence the payment of compensation benefits, and we affirm the award of penalties and attorney’s fees.

The award of attorney’s fees was originally $5,000 following the initial trial. After the hearing on remand, the trial court increased the award to $6,000. This was proper and reasonable.

In addition, we will award $1,500 for attorney’s fees occasioned by the two appeals required herein.

Summarizing, we find that the defendant on remand failed to show that some form of gainful employment is regularly and continuously available to plaintiff within reasonable proximity to her residence, and therefore her odd lot status remains unchanged from our findings on the initial appeal. We affirm the trial court’s determination that the defendant insurer was arbitrary and capricious in its termination of medical benefits and failure to pay compensation benefits, and affirm the award of $6,000 in attorney’s fees, and we amend the award of attorney’s fees by increasing that award by an additional $1,500 to cover attorney’s fees for the two appeals.

AMENDED, AND AS AMENDED, AFFIRMED.


text:
    Carolyn Martin ARCENEAUX, Plaintiff-Appellee, v. John Wayne ARCENEAUX, Defendant-Appellant.
    No. 82-505.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 3, 1983.

      Perrin, Landry & deLaunay, Donald D. Landry, Lafayette, for defendant-appellant.
    Darrell D. Desormeaux, Lafayette, for plaintiff-appellee.
    Before STOKER, YELYERTON and KNOLL, JJ.
   KNOLL, Judge.

This appeal was brought by the husband against his wife from a judgment of alimony pendente lite and child support. We affirm.

The issues on appeal are:

(1) Did the trial court err in awarding child support at the rate of $350.00 per month; and
(2) Did the trial court err in awarding alimony pendente lite.

Of the marriage and union between John Wayne Arceneaux-appellant and Carolyn Martin Arceneaux-appellee one child was born, namely, Jamie Renee Arceneaux, who is five years of age. Mr. Arceneaux is gainfully employed by Scientific Drilling International as a directional surveyor. Five months immediately prior to the rule, he grossed $13,500.00. His W-2 for 1981 shows he grossed $36,000.00. In addition: he receives a gasoline expense; $400.00 per month car allowance; health insurance; participates in the profit sharing program of ESOP, and receives a 15% commission on job tickets that he writes. He has a guaranteed base pay of $1,650.00 per month.

Carolyn Arceneaux is gainfully employed by 4 — M Pipe Testers as a bookkeeper. She is paid $300.00 every other week. In addition she receives a Christmas bonus depending on how the corporation is doing, the largest amount she ever received being $2,500.00; and, a dividend in the sum of $1,000.00.

She has separate properties consisting of: a lk interest in a partnership; a savings account of $3,000.00; a certificate of deposit of $11,000.00; and, 25% of outstanding stock in 4-M Pipe Testers.

Both stipulated: that Carolyn Arceneaux would have custody of the minor child subject to visitation privileges in favor of John Arceneaux; that the injunction would remain in effect, and, that the marital residence would be the family home of Carolyn Arceneaux and the minor child.

At the conclusion of the hearing, the trial court fixed child support at the rate of $350.00 per month and alimony pendente lite at the rate of $150.00 per month.

CHILD SUPPORT

The parents of Jamie Arceneaux maintained their child with the necessities of life and comfortableness. It is well established that children of separated or divorced parents are entitled to be maintained in the same manner prior to the separation or divorce. Ducote v. Ducote, 339 So.2d 835 (La.1976); Chaffee v. Chaffee, 398 So.2d 1169 (La.App. 2nd Cir.1981); Goux v. Goux, 408 So.2d 30 (La.App. 3rd Cir.1981). Her father, John Arceneaux, is a success with his employer, earning a handsome income with generous fringe benefits. He apparently holds himself to a high standard which he rightfully owes to his child.

Her mother likewise contributes substantially to the child support. The monthly budget for the child totals $518.00. The mother contributes in excess of $200.00 per month, plus the day-to-day care of the child. As pointed out in Chaffee, supra, the amount of child support will not necessarily be apportioned evenly between the parents where one has custody:

“A portion of the custodial parent’s obligation of support will be fulfilled by the day-to-day care and maintenance which he or she gives to the child. This day-to-day care would include washing clothes, preparing meals, providing transportation, and maintaining the home environment. See Cowen v. Cowen, 375 So.2d 118 (La.App. 3d Cir.1979). For this reason, it is not appropriate to calculate the entire amount needed for support of the child and divide it evenly between the two parents.”

The obligations of parents to their child or children is a moral obligation as well as one required by law.

LSA-C.C. Art. 227 Fathers and mothers, by the very act of marrying, contract together the obligation of supporting, maintaining, and educating their children.

The trial court is vested with wide discretion in determining the amount of child support to be contributed by each parent. Ducote, supra; Silas v. Silas, 399 So.2d 779 (La.App. 3rd Cir.1981) writ denied, 404 So.2d 278 (La.1981); Ducree v. Thomas, 415 So.2d 1009 (La.App. 4th Cir.1982). Such a determination will not be disturbed absent a showing the trial judge abused that discretion. We conclude that the record supports the trial court’s award of child support.

ALIMONY PENDENTE LITE

During the period of separation, the parties are still husband and wife. It is the divorce which dissolves the bonds of matrimony, rendering each a “single person”. Alimony pendente lite is a duty of support one spouse owes the other stemming from the contract of marriage. LSA-C.C. Art. 148 sets forth the requirements in an award of alimony pendente lite:

LSA-C.C. Art. 148. If the spouse has not a sufficient income for maintenance pending suit for separation from bed and board or for divorce, the judge may allow the claimant spouse, whether plaintiff or defendant, a sum for that spouse’s support, proportioned to the needs of the claimant spouse and the means of the other spouse.

See also Ward v. Ward, 339 So.2d 839 (La.1976); Arrendell v. Arrendell, 390 So.2d 927 (La.App. 2d Cir.1980); Harrington v. Campbell, 413 So.2d 297 (La.App. 3rd Cir.1982).

The spouse is entitled to be maintained in the manner accustomed during marriage if the other spouse has the means. Ward, supra; Harrington, supra. If the spouse does not have sufficient income for his or her maintenance, the means of the spouse do not preclude the award of alimony pendente lite. Thomas v. Thomas, 281 So.2d 471 (La.App. 4th Cir.1973); Hargrove v. Hargrove, 272 So.2d 394 (La.App. 2nd Cir.1973); Arrendell, supra; Wilhite v. Wilhite, 408 So.2d 973 (La.App. 2nd Cir.1982) writ denied, 412 So.2d 100 (La.1982).

Carolyn Arceneaux’s major assets in her separate property are the partnership interest and stock in 4-M Pipe Testers. Almost all of the money from these assets are used to retire the debts and pay taxes for these investments. It will be two or more years before she will derive the full income from these investments. She is not required to deplete her capital before she is entitled to alimony pendente lite.

The trial court is vested with much discretion in fixing alimony pendente lite. The determination granting alimony pen-dente lite will not be disturbed unless there is a clear abuse of this discretion. Vestal v. Vestal, 216 So.2d 386 (La.App. 3rd Cir.1968); Lewis v. Lewis, 329 So.2d 778 (La.App. 2nd Cir.1976); Cortinez v. Cortinez, 414 So.2d 830 (La.App. 4th Cir.1982). We find the record supports the trial court’s decision granting alimony pendente lite.

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

AFFIRMED.


text:
    Michael Craig BOUDREAUX, Plaintiff-Appellant, v. PIPE LINE TECHNOLOGISTS, INC., et al., Defendant-Appellee.
    No. 82-513.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 3, 1983.

      Shelton & Legendre, Thomas Robert Shelton, Lafayette, for plaintiff-appellant.
    Voorhires & Labbe, Patrick A. Juneau, Jr., Lafayette, Roy, Forrest & Lopresto, Alex Lopresto, New Iberia, Gachassin & Capretz, Nicholas Gachassin, Jeansonne, Gibbens, Blackwell & Briney, John A. Jean-sonne, Jr., Lafayette, Camp, Carmouche, Palmer, Barsh & Hunter, David R. Frohn, Lake Charles, Allen, Gooch & Bourgeois, St. Paul Bourgeois, IV, Onebane, Donohue, Bernard, Torian, Diaz, McNamara & Abell, Lafayette, Richard B. Nevils, Baton Rouge, for defendant-appellee.
    Before STOKER, YELVERTON and KNOLL, JJ.
   YELVERTON, Judge.

Plaintiff, Michael Boudreaux, filed this tort action against numerous defendants, including Oilco Construction Company (Oil-co), alleging that the negligence of the defendants caused him to fall approximately 50 feet from a scaffold and suffer severe injuries. From the granting of Oilco’s motion for summary judgment, the plaintiff has appealed.

The plaintiff was working for Par Industries, Inc., performing duties as a combination fitter in the construction of a “jacket”, the support structure of a drilling rig platform. On May 5, 1977, plaintiff was required to aid in the removal of certain scaffolding temporarily attached to the platform jacket. When plaintiff pried loose one of the boards the scaffolding or walkway gave way causing him to fall approximately 50 feet. At the time of the accident the structure was positioned on its side and the scaffolding or walkway was supposed to be temporarily welded to and saddled across the circular .legs of the platform jacket.

In his petition the plaintiff alleged numerous acts of negligence on the part of Oilco including:

“(g) Failure to provide adequate inspection and/or testing of the scaffolding brackets and/or scaffolding walkways, and/or the negligent manner of inspection and/or testing of the scaffolding brackets and/or scaffolding walkways so as to comply with recognized scaffolding standards; and
“(i) Failure of the defendants, collectively and/or individually, to warn petitioner of the failure to properly test and/or inspect said work to determine subject scaffolding walkway’s suitability, functionability and/or adaptability for the removal of said scaffold boards situated herein; and
“(j) Failure of the defendants to do what should have been done and failure to adequately warn the petitioner of the limitations and/or negligent performance of their services together with the inadequate testing and evaluation procedures to perform the work intended.”

In response Oilco filed a motion for summary judgment. The trial court rendered judgment in favor of the defendant.

The only issue presented by this appeal is whether the trial court erred in granting the defendant’s motion for summary judgment.

The recent Supreme Court decision of Thompson v. South Central Bell Telephone Company, 411 So.2d 26 (La.1982), states:

Summary judgment under La.C.C.P. arts. 966-969 is based on Federal Rule 56. Although it is an extremely useful device for putting an end to unnecessary litigation, it must be used with caution. “Summary judgment procedure is not a catchpenny contrivance to take unwary litigants into its toils and deprive them of a trial.” Whitaker v. Coleman, 115 F.2d 305, 307 (5th Cir.1940). Rather, it is available only when “the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La.C.C.P. art. 966; Dixie Campers, Inc. v. Vesely Co., 398 So.2d 1087 (La.1981); Chaisson v. Domingue, 372 So.2d 1225 (La.1979). Whenever there remain factual issues in dispute, a court should not grant summary judgment but should set the case for trial....

Oilco filed an affidavit by Oían Fremin, the President of the company, in an effort to show that the material facts are undisputed that the work which Oilco contracted to perform for Par Industries was unconnected with the equipment on which plaintiff was injured. In the affidavit, Mr. Fre-min, based on a complete check of the files and business records of Oilco said that (1) the employees of Oilco worked at Par Industries from February 22, 1977, to March 2,1977; (2) during that time the employees worked on the Wheelis Drilling Rig No. 5 cleaning the kitchen and rig floor; (3) its employees did not resume working for Par until May 13, 1977; (4) during the time the plaintiff was injured Oilco did not have any work at Par Industries nor did it have any labor crews or other personnel on the premises; and (5) Oilco did not employ any welders, nor rent equipment, nor have anything to do with equipment mentioned in plaintiffs petition.

The depositions of the plaintiff and two others, Robert Milkint and Rodney Verret, were also on file in the record. The deposition of the plaintiff indicated that the reason he was required to remove the scaffolding was that the roustabouts who were supposed to do this had failed to do it. The roustabout crews had also performed tasks in installing the scaffolding and its railings and in removing the handrails. The roustabout crew working on the scaffolding at the time of the accident was employed by Ernest Hebert, Inc., but Oilco’s crew' had worked on the structure earlier. The roustabout crews performed many varied jobs on the structure.

Robert Milkint, the personnel manager for Par Industries, stated in his deposition that according to two invoices Oilco was assigned to do general cleanup of the area where the structure was being constructed. The work was performed on January 21, 1977, and February 21 and 22, 1977. Mr. Milkint had no personal knowledge of the tasks performed by the crew from Oilco on those dates but stated his company did utilize roustabout crews to perform different jobs in the yard.

The deposition of Rodney Verret, President of Par Industries, revealed that Oilco was a general oilfield contractor and that company could have been hired on the project to perform roustabout services.

Considering the above evidence there is clearly a genuine issue of material fact as to whether Oilco provided roustabouts on the project who aided in the installation of the scaffolding and its railings. Since plaintiff’s petition alleges negligence on the part of Oilco in the testing and in their performance of their duties, i.e., in constructing the scaffolding, we find that the trial court erred in granting the defendant’s motion for summary judgment.

For the reasons assigned the judgment of the district court is hereby reversed and the case remanded for trial on the merits. Costs of this appeal to be borne by the appellee.

      . At the time this judgment was rendered this record was already on appeal from a prior granting of a motion for summary judgment by another defendant. See Boudreaux v. Verret, 422 So.2d 1167 (La.App. 3rd Cir.1982). Appellant argues on appeal that the trial court had no authority to render the present judgment since the record had been lodged with the appellate court. We disagree.
      Under LSA-C.C.P. art. 2088 the trial court retained jurisdiction over matters not reviewable under the prior appeal, including the defendant’s motion for summary judgment. Therefore we find the trial court had jurisdiction to render judgment upon this matter.


author: KNOLL, Judge. STOKER, Judge,

text:
    Gerald Wayne WALDON and Alice Waldon, Plaintiffs-Appellants-Appellees, v. Richard M. BAKER and Champ Baker, d/b/a C & R Construction Company, Defendants-Appellees-Appellants.
    No. 82-515.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 3, 1983.
    Writ Denied April 5, 1983.
    Antoon, Dalrymple & Beck, Robert L. Beck, Jr., Alexandria, for plaintiffs-appellants-appellees.
    William E. Skye, Alexandria, for defendants-appellees-appellants.
    Before STOKER, YELVERTON and KNOLL, JJ.
   KNOLL, Judge.

This appeal was brought by the plaintiffs for a breach of contract to buy and sell and the damages awarded. The defendants answered the appeal denying that any damages were due.

FACTS

Gerald Wayne Waldon and his wife, Alice Waldon, entered into a contract to buy and sell with C & R Construction Company, a partnership comprised of Richard M. Baker and Champ Baker. The Waldons agreed to purchase from C & R lot # 65 of the Donahue East Subdivision. C & R Construction Company was to build the home for the price and sum of $47,500.00. The house plans agreed upon by the Waldons and C & R were approved by the Veterans Administration.

The Waldons submitted their loan application to Rapides Bank & Trust Co. of Alexandria for a VA loan under the Rap-ides Parish Housing & Mortgage Finance Authority program, which offered an interest rate of 8.125% per annum. Three inspections were required by the Veterans Administration, namely, the foundation inspection, the black out inspection, and the final inspection.

Work on the house commenced on February 3, 1980. The foundation inspection (first stage) was approved by the Veterans Administration inspector, Overton Miller, on February 13, 1980.

On February 29, 1980, inspector Miller found the builder had gone beyond the second inspection stage (the black out) because the bricks had already been laid, therefore, Mr. Miller did not approve the second inspection. He then ordered that the builder, C & R, cease work on the house until it was approved by the New Orleans Office of Veterans Administration.

Richard Baker immediately contacted Inspector Miller’s superior in New Orleans and received a verbal approval of the second stage. This verbal approval was subsequently confirmed by letter dated March 17, 1980.

After the second stage approval was concluded, Inspector Miller then required a sheet of paneling be removed from each exterior wall so he could check to see that the insulation was stapled. Richard Baker refused. On March 20,1980, Inspector Miller closed his files. Apparently there was a personality conflict between Champ Baker and Inspector Miller. On March 21, 1980, Champ Baker foresaw that Inspector Miller’s remaining inspections would not coincide with the construction, which in turn would result in exceeding C & R’s original price of $47,500.00. On March 21, 1980, Champ Baker delivered to the Waldons their deposit of $1,000.00, and notified them that the terms of the contract to buy and sell could not be met. The deposit refund check was never cashed. The loan was never consummated because the final VA inspection was never made.

The Waldons attempted to find a similar house. They applied for financing at other lending institutions but qualified for a maximum loan of $32,000.00 at a higher rate of interest.

The Waldons filed a suit for specific performance based on the contract, and alternatively, for damages occasioned by the breach of the contract.

The plaintiffs did not file a notice of lis pendens which would have put prospective third party purchasers on guard. The defendants sold the property on June 2, 1980. Thus the plaintiffs are left only with a claim for damages resulting from the breach of contract by the defendants. Southern Savings Association v. Langford Land Company, 372 So.2d 713 (La.App. 4th Cir.1979, writ denied 374 So.2d 659).

The defendants contend the contract to buy and sell was rescinded by virtue of the actions of Inspector Miller when he requested a sheet of paneling be removed from each exterior wall, after the Bakers received approval of the second inspection. At this point Inspector Miller closed his file.

The trial court held that the defendants breached the contract with the plaintiffs. Damages were awarded to plaintiffs in the amount of $3,878.48, plus the refund of plaintiffs’ $1,000.00 deposit. We affirm.

DAMAGES FOR BREACH

A binding contract existed between the Waldons and C & R. The contract was solely between the purchasers and the sellers. It did not include the Veterans Administration. We find C & R breached the contract. The defendants raise the action of the inspector for the Veterans Administration as a defense. This would give rise to an action by C & R against the Veterans Administration, which is not before us for determination.

We find the trial court’s findings are correct. The trial court is given much discretion in its award of damages. Canter v. Koehring Company, 283 So.2d 716 (La.1973); Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978); Roberts v. Rolene Corp., 415 So.2d 546 (La.App. 1st Cir.1982).

For the reasons assigned the judgment of the trial court is affirmed with costs assessed one-half to each party. AFFIRMED.

STOKER, J., concurs and assigns written reasons.

STOKER, Judge,

concurring.

I concur in the result reached by the majority in this case. I find I am in some disagreement with the trial court’s oral reasons for judgment in this case. Therefore, I file this concurring opinion to set forth why I feel that the defendants breached their contract with the plaintiffs.

Although there is no written contract for the construction of any improvements on the lot which plaintiffs agreed to buy and defendants agreed to sell, Mr. Richard M. Baker, one of the partners, admitted under oath in the course of the trial that there was such a contract. Mr. Richard M. Baker was the only member of the partnership to testify. He appears to have been the only member of the partnership actively engaged in the dealing with the plaintiffs, the inspector for the Veterans Administration (Mr. Overton Miller), the lending institution and the New Orleans office of the Veterans Administration.

The record discloses that Richard Baker saw the construction through the first two VA inspections although he had to appeal to the New Orleans office of the VA in order to get approval at the second inspection stage. Although Mr. Miller denied any knowledge of the fact that the New Orleans office of the VA had overriden his rejection of the construction at the second stage, two facts should be noted. First, the New Orleans office issued written instructions overriding Mr. Miller, a fact of which Mr. Miller should ordinarily have been advised by his own agency. Second, Mr. Waldon testified that he told Mr. Miller that Richard Baker had notified Waldon that the New Orleans office of the VA had overridden Miller and had given approval of the second inspection.

Despite the fact that the defendant received their second inspection approval, Mr. Miller for reasons he does not explain, at least to my satisfaction, went back to the construction site and demanded that Richard Baker order his workmen to remove certain paneling in order that he might check behind it for such matters and installation of insulation. Such an inspection related to the second inspection which the defendants had already received through the New Orleans office of the VA.

Richard Baker refused to have the paneling removed as requested by Miller. Baker claims that Miller threatened to refuse approval of the house unless Baker complied with the request. Miller did in fact issue a written request on a VA compliance inspection report form “that the file be closed as Builder will not comply with Compliance Inspection.” At about this time Richard Baker gave Waldon a check for $1,000.00 signed by his brother Champ L. Baker made payable to Waldon. Richard Baker explained that in view of the action of Miller, the defendant partnership could not hope to obtain final approval of the house for VA financing.

The trial court found that the defendants breached the contract to build the house through the refusal of Richard Baker to order the removal of the paneling. The record discloses that defendants were not obligated to do that. Miller’s action could only be based on an ignorance of the fact that his rejection of the second inspection had been overruled. Obviously, there was a lack of communication. If Mr. Miller was not informed by his own agency, the VA, of the fact that he had been overridden, that was a failure in interagency communication. It does not appear that Richard Baker reminded (or informed) Miller at the time he refused to remove the paneling that he already had second inspection approval. The parties appear to have squared off at that point, Miller determined not to approve defendant’s house and Baker not to comply with Miller’s request — even if it meant loosing VA approval. In my opinion the trial court was in error in holding that the defendants breached the contract to build through refusal to remove the paneling.

While I disagree with the trial court’s conclusions, I think that the defendants did breach the contract. The breach resulted in the failure of defendants to request the third and final inspection after the house was completed. The house was completed and was sold to another party. Richard Baker testified that the house met VA standards and was built to comply with the plans and specifications agreed upon by plaintiffs and defendants and approved by the VA.

In summary, it is clear that Richard Baker and his partner broke off the contract with the Waldons upon the assumption that they had reached an impasse with Miller which made it impossible for them to obtain the necessary final approval. Although Mr. Miller’s role in the breakdown in relations may be subject to question, the request for the third inspection should have been made. Had it been made, approval might have been forthcoming. On the other hand, had Miller persisted in his obstinancy upon request for a final inspection, it would then have been reasonable to conclude that the defendants were not at fault and had not breached the contract. For the reasons I have given above, I concur in the result reached by the majority opinion which affirms the trial court.


text:
    J.B. MAXIE, Plaintiff-Appellee, v. HARCO NATIONAL INSURANCE COMPANY, et al., Defendants-Appellants.
    No. 82-517.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 3, 1983.
    Hunt, Godwin, Painter & Roddy, David Painter, Lake Charles, for defendant-appellant.
    Kenneth N. Simmons, Many, for plaintiff-appellee.
    Before STOKER, YELVERTON and KNOLL, JJ.
   STOKER, Judge.

The two defendants in this case jointly appeal from a judgment declaring a note issued by the plaintiff to be paid in full and ordering cancellation of an accompanying chattel mortgage. We amend the judgment insofar as it casts defendant Harco National Insurance Company (Harco) for costs and dismiss the suit as to that defendant. In all other respects we affirm.

Plaintiff bought a skidder (a piece of equipment used in logging operations) from Byles Welding and Tractor Company, Inc., (Byles). Byles is not a party to this suit. The plaintiff, J.B. Maxie, signed an installment sale and chattel mortgage agreement which was endorsed by the vendor, Byles, and assigned to defendant International Harvester Credit Corporation (International). Plaintiff insured the skidder against loss with defendant Harco; and defendant International, as owner of the note and mortgage, was listed as the loss payee in the insurance contract. The skidder was subsequently destroyed by fire. Harco replaced the skidder with another skidder and the plaintiff entered into a “substitution agreement” with International. In this agreement International agreed with Maxie to substitute the second skidder for the first one in the chattel mortgage and note. Har-co also agreed to insure the second skidder. After the second skidder was also destroyed, Harco paid International what Harco considered it was obliged to pay under the insurance agreement. This amount was far below the outstanding balance on plaintiff’s obligation to International, and International demanded the balance from plaintiff.

Plaintiff filed this suit asking that the note be declared paid in full and the mortgage be cancelled. In the alternative, plaintiff asked that judgment be granted against defendant Harco under the insurance policy for the amount of the outstanding balance on the note plus the amount of penalties that International had assessed against the plaintiff for late payment. The trial court granted judgment for the plaintiff on his primary demand.

The written reasons of the trial court deal with defendant Harco’s liability as insurer. Defendants raise several issues on appeal with regard to the correctness of the trial court’s findings. However, the judgment is not against Harco on any policy obligation. Therefore, we need not consider those issues.

This leaves for consideration the issue of International’s appeal. The judgment appealed from decreed that Maxie’s note held by International be declared paid in full and ordered the chattel mortgage and other documents of record be cancelled. As the following discussion will show, International admitted payment of the balance due on the note by the endorser, Byles. Therefore, we hardly see how International can complain of the judgment against it.

The allegations of paragraph 17 of plaintiff’s petition are as follows:

“17.
“Petitioner further shows that after applying the sum of $12,750.00 to the balance of the promissory note, International computed an unpaid balance of $4,969.00 due and still owing on the note, that International further added a late charge of $1,075.76, and International further made a demand for payment of $6,044.76.” * * *

The answer to plaintiff’s paragraph 17 contained in the answer filed jointly by Harco and International is as follows:

“17.
“Article 17 of plaintiff’s petition is admitted and that subsequently, the endorser on the note, Byles Welding and Tractor Company, Inc., as endorser, paid the balance on the note to International Harvester Credit Corporation.”

In view of International’s admission that the balance on the note made by plaintiff has been paid by Byles as the endorser, the obligation represented by the note has been discharged. Plaintiff prayed that the trial court grant a declaratory judgment declaring “the outstanding balance on the promissory note, together with the late charges and interest to be paid in full and ordering the note and chattel mortgage cancelled in full.” This is precisely what the trial court did in its judgment although, as set forth in its reasons for judgment, the trial court based its holding on other grounds, namely the issues relating to the insurance claim.

Inasmuch as International has admitted that Maxie’s note has been discharged, it can hardly complain of a judgment ordering that the note and mortgage be cancelled.

In the alternative, Maxie prayed for a judgment against Harco, the insurer, for $6,044.76 with interest, penalties, attorney fees and costs. Inasmuch as the primary demand was granted, no judgment was rendered against Harco except that it was cast for costs along with International. Under the judgment Harco has no complaint except for being cast for costs. Because no judgment was rendered against Harco, we shall amend the judgment to cast International for all of the costs.

In summary, this case was tried entirely on the insurance claim issues between plaintiff, Maxie, and Harco. These issues did not concern International. In fact, as to these issues, International’s interests would have been the same as Maxie’s since it was the loss-payee in Harco’s policy. International’s interest would actually have been adverse to Harco’s interest except that it admitted that it had been paid. As a result, it no longer had an interest as loss payee with respect to any funds that might be due under Harco’s policy. Because the demand against Harco was never reached, we deem it proper to further amend the judgment to dismiss the suit as against Harco without prejudice.

For the foregoing reasons we amend the judgment of the trial court to relieve Harco National Insurance Company from the payment of any costs and to cast International Harvester Credit Corporation for all costs of the proceedings in the trial court. In further amendment we do hereby order, adjudge and decree that the action of plaintiff J.B. Maxie herein against Harco National Insurance Company be and it is hereby dismissed without prejudice. In all other respects, the judgment of the trial court is affirmed.

AMENDED AND AFFIRMED AS AMENDED.


author: DOMENGEAUX, Judge.

text:
    Bartley D. SELLERS, Plaintiff-Appellant, v. CITIES SERVICE COMPANY, Defendant-Appellee.
    No. 82-520.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 3, 1983.
    Baggett, McCall, Singleton & Ranier, Homer C. Singleton, Lake Charles, for plaintiff-appellant.
    Jones, Tete, Nolen, Hanchey & Swift, Gregory P. Massey, Lake Charles, for defendant-appellee.
    Before DOMENGEAUX, FORET and DOUCET, JJ.
   DOMENGEAUX, Judge.

Bartley D. Sellers, plaintiff-appellant, brought this suit in worker’s compensation to recover benefits allegedly due to him as a result of an accident that occurred on or about November 17, 1977. The defendant-appellee, Cities Service Company, argued that the plaintiff had not sustained injuries while acting within the course and scope of his employment, and thereby, that the company could not be held liable.

The trial court rendered judgment in favor of Cities Service Company, dismissing plaintiff’s demands, and assessing him with costs, including expert witness fees for six doctors. The plaintiff devolutively appealed from this adverse judgment.

In November, 1977, plaintiff was employed by Cities Service Company on a temporary basis working a “turn-around”. He had previously worked as a truck driver, rigger, operator of heavy equipment, and various and sundry jobs. On November 17, 1977, Sellers was a member of a crew engaged in rigging a slide valve weighing several tons so that it could be lifted by a crane from the back of a flatbed truck.

There is some dispute in the record as to what happened thereafter. Sellers claimed that at about 3:30 or 4 o’clock in the morning, he was standing on the bed of the truck assisting in fastening the rigging to the valve. He stated that when the crane operator attempted to raise the valve, it was lifted several feet off the truck and then dropped back on one side of the flatbed. Sellers maintained that when the valve was dropped, its great weight caused the bed of the truck to pitch upward. According to the plaintiff, he was hurled some twenty feet in the air, causing him to turn a complete flip before landing on his feet, and then falling over onto the ground. Sellers averred that within minutes after his fall, he felt pain in his feet, ankles, knees, back and neck, with most of the pain centered in his lower back.

Other eye witnesses testified that the accident occurred between 8 o’clock and 9 o’clock in the evening. They stated that the valve merely shifted on the truck, causing the bed of the truck to tilt. When this occurred, they claim that Sellers simply jumped off the truck onto the pavement. He was not thrown up into the air, according to these witnesses.

One of those eye witnesses, Joseph E. Quinn, a maintenance foreman for Cities Service Company, testified that after the valve shifted, he ran over and asked if anyone had been hurt, and that no one indicated that they were injured. He stated that they all laughed about what had happened, and that the incident was really “no big deal”.

Another witness, Cleveland Navarre, testified that he too asked if anybody had been hurt after the accident, whereby he also received a negative reply. He averred that Sellers gave him no indication that he was in pain and walked without a limp. He otherwise corroborated the testimony provided by Joseph Quinn.

After the accident, the plaintiff went to sit down in the coffee shack at the facility. He apparently didn’t tell his foreman or anyone else that he was injured. After his shift ended, he went home and later returned to the plant at about 9 o’clock in the morning in order to see a doctor. The doctor was not in, but a nurse examined him and told him that he appeared to be alright.

Mr. William S. Andrus, general craft foreman at the Cities Service Company plant, stated in his deposition that he called Sellers on the telephone the morning after the incident to inform him that due to a reduction in force, the plaintiff was being terminated from his job. Andrus claimed that at this point, Sellers advised him that he had been in an accident, whereby Andrus told him to come in and report the incident to the medical department. Later, the nurse notified Andrus that Sellers had come in and was leaving, so Andrus met with Sellers in one of the offices at the clock-house. Sellers described what had happened, mentioning that his knee was swollen. Andrus examined the knee and detected no swelling. Andrus stated that as he watched Sellers exit the office, he could not see any signs of a limp.

Sellers testified that he never received a phone call from Andrus in regard to his termination. He claimed that he did not know he had been terminated until he was advised of it at the clockhouse. Apparently, he thereafter went to see his attorney about the accident.

The plaintiff was subsequently examined by several different doctors. The first physician to treat Sellers was Doctor Ben Guil-beau, but he did not testify at the trial. In March of 1978, Sellers was examined by Doctor Norman Morin, who was unable to find any evidence of injury and determined that the plaintiff could return to work.

Later in March of 1978, Sellers was again examined by Doctor William Foster, who found no objective signs of injury, but felt that there was some limitation of motion. Almost a year later, Doctor Foster saw the plaintiff once again. He admitted Sellers to the hospital on March 5, 1979, and performed a myelogram on him. He subsequently performed a lumbar laminectomy on the plaintiff on March 7, 1979. Doctor Foster discharged Sellers in January of 1980, and felt that he was physically capable of performing all the duties of his previous employment as a rigger.

Cities Service Company paid 113 weeks of worker’s compensation benefits to Sellers at a rate of $130.00 per week for a total of $14,690.00, as well as medical benefits in the amount of $7,028.20, plus $1,467.20 to Lake Charles Memorial Hospital for confinement of the plaintiff from November 20, 1979, to December 11, 1979. Benefits were terminated by the defendant in January of 1980 on the basis of doctors’ reports which indicated that the plaintiff was no longer physically disabled.

In the trial judge’s reasons for judgment, he remarked that it was most difficult to sift exaggeration from prevarication in the evidence which was presented. Counsel for the plaintiff in his brief actually agreed that Sellers had exaggerated in stating that he had been catapulted 20 feet in the air, causing him to turn a flip and land on his feet. Furthermore, plaintiff’s counsel commented in his brief that Sellers “... in addition to his exaggeration had been belligerent, irritable, petulant, and one of the most difficult clients this counsel has ever represented.”

This Court will not disturb the trial court’s finding of fact unless it is clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). The trial judge clearly was unable to attach a great deal of credibility to the plaintiff’s version of the facts. Apparently, he determined that the damage to Sellers’ back which resulted in his undergoing surgery in March, 1979, was not proven in a satisfactory manner to have been causally related to the plaintiff’s accident on November 17, 1977, such that he would be entitled to recovery of compensation from Cities Service Company. We cannot say that the judge’s findings were manifestly erroneous, and we thereby adhere to them.

For the above and foregoing reasons, the judgment of the trial court is affirmed.

All costs at trial and on appeal are assessed against Bartley D. Sellers.

AFFIRMED.


text:
    Fred L. JAMISON, Plaintiff-Appellant, v. METROPLEX INVESTMENTS, INC., Defendant-Appellee.
    No. 82-523.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 3, 1983.
    Writ Denied March 25, 1983.

      Keith A. Rodriquez, Charles N. Wooten, Ltd., Lafayette, for plaintiff-appellant.
    Andrus, Preis & Kraft, Vance R. Andrus, Lafayette, for defendant-appellee.
    Before STOKER, YELVERTON and KNOLL, JJ.
   STOKER, Judge.

The sole issue on this appeal is whether the maker of a note secured by a mortgage must pay stipulated attorney’s fees incurred in collection of the note. The trial judge held that the plaintiff in this case was not entitled to the stipulated attorney’s fees on the ground that, he was an accommodation party. We reverse.

On April 14, 1978, Oston Landry and Whitney Simon sold a piece of property to Metroplex Investments, Inc. which executed a promissory note in favor of Landry and Simon for $600,000 payable in annual installments of $120,000 and paraphed for identification with an act of sale and mortgage. Fred Jamison, plaintiff in this suit, was one of six accommodation parties who endorsed the note. Upon the failure of Metroplex to make the payment due on April 14,1982, Jamison paid the balance due on the note, and it was assigned to him by an act in authentic form dated April 25, 1982.

Jamison brought this executory proceeding seeking seizure and sale of the mortgaged property to satisfy the unpaid balance of the note amounting to $240,000 plus interest and 10% attorney’s fees. Defendant, Metroplex, deposited with the sheriff an amount sufficient to pay the principal, interest, and attorney’s fees sued for, obtained a temporary restraining order to halt the sale of the property by the sheriff, and then sought a hearing only on the issue of attorney’s fees. Following the hearing the trial court held that plaintiff, as an accommodation party, was not entitled to the attorney’s fees. Plaintiff filed this devolu-tive appeal.

The trial court’s judgment was based primarily on a recent case holding that an accommodation party is not entitled to collect attorney’s fees such as would have been due if the action had been on the note. Smith v. White, 398 So.2d 178 (La.App. 3rd Cir.1981). Although counsel for plaintiff argues that the holding in Smith is incorrect and should be reversed, we do not deem it necessary to reach this result.

The primary basis of the holding in Smith, supra, and McCardle v. Nagim, 61 So.2d 267 (Orl.La.App.1952), a case on which Smith is based, is that the action to collect by the accommodation maker is not an action on the note. Rather it is an action on the implied contract for reimbursement. Thus, the contractual provision for attorney’s fees in the note is not applicable.

In the case at bar, it is clear that Jamison is suing not for reimbursement in his capacity as accommodation maker, but as assignee. His suit for executory process is clearly an action on the note, and as assignee, he is entitled to the same rights as the assignor. Ford Motor Credit Company v. Soileau, 357 So.2d 563 (La.App. 3rd Cir.1978).

In regard to attorney’s fees, the note provides as follows:

In case this note should be placed in the hands of an attorney, after its maturity, to institute legal proceedings to recover the amount thereof, or any part hereof, in principal or interest, or to protect the interest of the holder hereof, or in case the same should be placed in the hands of an attorney for collection, compromise or other action, the makers(s) and endorsers^) bind(s) itself to pay the fees of the attorney who may be employed for the purpose, which fees are hereby fixed at ten (10)% on the amount due or sued for, or claimed or sought to be protected, preserved or enforced, or $50.00 whichever shall be greater.”

Through this provision the maker obligated himself to pay stipulated attorney’s fees to any holder of the note in the event legal proceedings became necessary.

For the foregoing reasons the judgment of the trial court denying attorney’s fees is reversed and judgment is rendered in favor of plaintiff, Fred L. Jamison, and against defendant, Metroplex Investments, Inc., for attorney’s fees of 10% based on the principal and interest due on the note. The costs of this appeal are assessed to defendant-ap-pellee.

REVERSED AND RENDERED.