text:
    In re the Minor Tonja Rene WILDEBOER.
    No. 14693.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 2, 1981.

      Kelly & Salim by Robert L. Salim, Natch-itoches, for respondent-appellant, Richard L. Cotton.
    Thomas & Dunahoe by Edwin Dunahoe, Natchitoches, for petitioner-appellee, Marion Wildeboer.
    Horton & Jones by Donald G. Horton, Coushatta, curator ad hoc for Sheryl Faye Perry Cotton.
    Before HALL, MARVIN and FRED W. JONES, Jr., JJ.
   MARVIN, Judge.

The adoptive father of his former wife’s illegitimate child appeals a judgment that annulled the adoption and awarded custody to the child’s father who had informally acknowledged her.

Appellant contends that the trial court erred in finding that the father acknowledged the child, that the father did not have notice of the pending adoption, and that the father’s consent to the adoption was not dispensed with under LRS 9:422.1. We affirm.

The child was born in 1971. The adoptive parents were married in 1973 and adopted the child in 1975. These parents were divorced in 1979 and the adoptive father was awarded custody of the child along with the custody of two other children of that marriage.

The blood parents cohabited until about four or five months before the child was born. When the child was a few weeks old, she was presented by the father, who was accompanied by the mother and paternal relatives, before the congregation and to an ordained minister of a church in a christening-type ceremony in the name of the father. The father was present in the hospital when the child was born and paid the expense of childbirth and furnished information for the registration of birth. The child bore the name of the father and he is shown as the father on the unofficial birth record of the hospital and on the official birth record of the state.

For about two years the child and her mother lived with the father’s mother, near Campti, and the father’s grandmother, near Coushatta, and was supported in most part by the father, who lived and worked elsewhere. After the appellant married the mother of the child in 1973, the contributions from the father and his family continued, but diminished to occasional gifts of clothing, toys, and small amounts of money. These gifts were usually channelled through the paternal great-grandmother, who remained in good stead with the maternal relations of the child who lived in the same community. The child periodically visited the paternal grandmother and great-grandmother and on many of these occasions was visited by her father. The child’s visits were brief (two-three days) and occurred about 25 times over a period of about six years.

The child lived with her mother, appellant, and the two other children born of that marriage from 1973 until the appellant went overseas in military service in 1977. In late 1978, the mother, then residing in Oklahoma and apparently involved in an affair there, brought these three children to the home of appellant’s mother near Cous-hatta, where they resided until the appellant returned home in 1979 to live nearby. On April 26, 1979, appellant was granted a divorce from his wife on grounds of adultery and was awarded custody of the three children.

When the adoption proceedings were filed in 1975, the child’s father was living in Foxworth, Mississippi, and was working in Columbia, Mississippi. The report of the state agency to the court in the adoption proceedings contains these statements, which we have edited to replace private names with the designations used in this opinion:

“Information concerning the father of [the child] was obtained from [appellant’s mother]. [The father], age 30, was born in Natchitoches . . . and graduated from . . . High School. He attended Northwestern State University for three years and is employed in Columbia, Mississippi.... His mother is a ... who lives in Campti and maintains contact with [the child]. [The parents] separated five months prior to the birth of [the child]. He is said to be in opposition to the adoption plans.
* * * # * *
“[The adoptive parents] were married on 4-13-73 in Red River Parish, (verified). [The blood parents] are said to have married on 5-22-69, in Juarez, Mexico. This marriage could not be verified.”

Notwithstanding the knowledge of appellant’s mother and of the father’s relatives in the community, neither appellant nor his wife, who were the joint petitioners for adoption, furnished any information about the name of the father or his whereabouts to the attorney appointed to represent the father. This attorney’s letter and the answer in the adoption record clearly states the absence of such information and that he was unable to determine who the absentee father was or to contact him.

When the father learned of the divorce and investigated, he learned of the adoption. He then brought this action to annul the adoption on the grounds of lack of service (notice) and that the judgment of adoption was obtained by fraud and ill practices. CCP 2002, 2004, 1201. The mother was made a defendant. She did not testify or appeal the judgment. The child did not testify. Appellant’s mother and paternal relatives of the child offered testimony. The father denied any knowledge of the adoption and there is no evidence to contradict his testimony. The trial court’s conclusion in this respect is correct.

Unlike other sections of the adoption statute, LRS 9:425 makes no distinction between legitimate and nonlegiti-mate parents or between a parent who has acknowledged his child and one who has not. This section requires that a copy of the petition for adoption shall be served as in civil proceedings on each living parent of the child. Service on an absentee may be accomplished through an attorney at law appointed for that purpose who is expressly charged with the duty of exercising reasonable diligence to communicate with the absentee about the pendency and the nature of the proceeding. The appointed attorney’s failure to perform the duty may give rise to damages but does not affect the validity of a judgment against the absentee. LRS 9:426, CCP 5094, 5098. See Milner v. Milner, 244 So.2d 716 (La.App.2d Cir. 1971). If information that would lead to the name and whereabouts of the absentee is deliberately withheld by a petitioner in an action, the judgment rendered in favor of the petitioner may be annulled on the grounds of fraud or ill practice. CCP 2004. Brasher v. Brasher, 372 So.2d 752 (La.App. 4th Cir. 1979).

Appellant and his wife, joint petitioners for adoption, in 1975, failed to inform the absentee father’s appointed attorney in the proceeding of any information about the name or whereabouts of the absentee father. Appellant’s mother, appellant’s wife, and obviously the appellant himself, all of whom knew the name of the absentee and his relatives in the same rural community, could have easily furnished information to the appointed attorney from which could be ascertained the exact whereabouts of the absentee. The absentee father was maintaining contact with his relatives and, through them, with his child, during this time. The withholding of this information from the appointed attorney does not excuse the appointed attorney’s failure to exercise diligence in attempting to locate and inform the absentee, but we must conclude that the withholding was deliberate and constitutes grounds for annulling the judgment. CCP 2004.

Once the nullity of the adoption judgment is determined, this contest resolves itself into a custody dispute between the appellant, former step-father of the child, who was granted custody as an incident of his divorce, and the father of the child, born illegitimate. Under these circumstances, we shall consider then the appellant’s contentions that the father’s actions are not sufficient to constitute a legal acknowledgment of the child under CC Art. 203. See also CC Art. 209.

The fact that others place the name of the father in the birth records of a child is not sufficient to constitute an acknowledgment under CC Art. 203. In Re Martin, 357 So.2d 893 (La.App. 1st Cir. 1978). Here, however, the father himself caused his name to be entered on the birth records, he was present at the time of birth and paid the expenses, he declared the child to be his in a church ceremony, and he provided some support and places of residence for the child and her mother for about two years following birth. These actions, when considered together, are sufficient in our opinion to constitute a legal acknowledgment of the child by the father. See CC Art. 209; Goins v. Gates, 93 So.2d 307 (La.App. 1st Cir. 1957); Ford v. Calhoun, 6 La.App. 350 (1927). Legal rights and obligations arise from the acknowledgment of an illegitimate child by a parent. We see no reason why the law should not recognize the parental rights of a parent who has acknowledged his illegitimate child when the law has recognized that parent’s obligations. See Succession of Brown, 388 So.2d 1151 (La.1980); Creppel v. Thornton, 230 So.2d 644 (La.App. 4th Cir. 1970).

In a custody contest between a parent and a non-parent (here the former step-father of the child), the parent must prevail unless the record affirmatively shows the parent’s unfitness or forfeiture of parental rights. In such circumstances, it is not proper merely to compare the parent’s situation with that of the non-parent and award custody on the basis of the best interest of the child. Unfitness of or forfeiture by the parent must be expressly determined and well supported. Burt v. McKee, 384 So.2d 489, 491 (La.App.2d Cir. 1980). The lower court’s judgment and reasons for judgment impliedly negate this father’s unfitness or forfeiture of parental rights.

For reasons assigned here, and by the court below, and at appellant’s cost, judgment is AFFIRMED.

      .“A copy of the petitioner together with all exhibits shall be served by registered mail on the department and on the agency having legal custody of the child. Two copies of the same petition need not be served on the department. Notice of the filing of said petition shall be served in the manner for service of process in civil proceedings, on each living parent of the child, unless the child has been legally surrendered or declared abandoned by a court of competent jurisdiction, in which event, the parents shall not be served.”

      . Appellee did not raise the issue of constitutional due process here or below and we do not reach that issue.

      . We emphasize that it was the appellant’s mother who informed the state investigating agency of the name and location of the absentee. This information was apparently known in the community and could have been obtained by the appointed attorney for the absentee.


source: Caselaw Access Project

author: HALL, Judge.

license: Public Domain

text:
    Jessie D. RAMPHREY and Adelaide Ramphrey, Plaintiffs-Appellants, v. HIGHLANDS INSURANCE COMPANY, Defendant-Appellee.
    No. 14694.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 2, 1981.

      Blackwell, Chambliss, Hobbs & Henry by James A. Hobbs, West Monroe, for plaintiff s-appellants.
    Davenport, Files, Kelly & Marsh by William G. Kelly, Jr., Monroe, for defendant-appellee.
    Before HALL, MARVIN and FRED W. JONES, Jr., JJ.
   HALL, Judge.

The sole issue on appeal in this case is quantum. Plaintiffs-appellants argue that the $31,000 general damage award made by the trial court is inadequate and should be increased to $50,000. Defendant-appellee, who answered the appeal, argues that the award is excessive and should be reduced to $20,000. The parties agree that the $3,640.15 award for special damages was an inadvertent error and should be increased to $8,421.13. We amend the judgment to correct this error and otherwise affirm.

Mrs. Ramphrey was injured on August 12,1979 when the pickup truck in which she was a passenger was struck from the rear by another vehicle. She was taken to the hospital emergency room where a doctor diagnosed her injuries as an anterior sublu-xation (partial dislocation) of the fourth cervical vertebra upon the fifth, with a possible fracture of the fourth cervical vertebra. Her neck was immobilized and she was transferred to another hospital for neurological evaluation. The neurosurgeon concurred in the original diagnosis and advised fusion surgery. The alternative to surgery was conservative treatment with traction, casts, and braces. Mrs. Ramphrey refused to undergo surgery at first because of her anxiety concerning the possibility of damage to her spinal cord. Tongs were attached to her skull so that traction could be applied; Mrs. Ramphrey was completely immobilized for several days. She later consented to the surgery which was performed on August 21.

A sliver of bone from her hip was used to fuse the fourth and fifth cervical vertebrae. Alignment was good and she was allowed to go home nine days later, wearing a heavy plastic collar. About three months later a soft collar was substituted. During her convalescent period, Mrs. Ramphrey returned to the neurosurgeon on five occasions, reporting no pain. On February 19, 1980, six months after the accident, she was discharged as fully recovered to return to full activity without restriction, with no symptoms or complaints.

While finding that the testimony of Mrs. Ramphrey, her husband and daughter as to her fear, pain, and suffering was exaggerated and inconsistent with her reports to the doctor, the trial court recognized the severity of her injuries. The trial court in written reasons for judgment stated:

“On the other hand, the rather sterile, somewhat reserved and academic description of the cold and impersonal medical facts does not tell the whole story. Notwithstanding Mrs. Ramphrey’s obvious ‘over-reaction’ in many respects and her apparent tendency to exaggerate in retrospect, it is manifest that she suffered from natural terror (as well as severe pain) when told she had a broken neck, when she realized that she could easily become paralyzed, when having to decide between the risk of surgery and the lengthy disability and discomfort of non-surgical treatment, and in enduring the treatment and recovery. Fear, anxiety and pain are in and of themselves largely subjective in degree. Moreover, although medically sound, she has had her throat entered, a piece of bone removed from her hip and part of her upper spine immobilized. She is therefore less than 100% of what she was before the accident, injury and treatment.
“At least three or four weeks of extreme anguish, pain, discomfort and uncertainty clearly followed the accident. While that may seem a short time in retrospect, it must be an eternity to one lying virtually immobile for over two weeks without the sophisticated knowledge of the medical profession and suffering the mental and physical anguish of such circumstances. In addition, she was sharply restricted by her collar and her healing hip for some two months and only gradually released from these impairments over the next two or three months.”

The only witnesses who testified at trial were Mr. Ramphrey and the plaintiffs’ daughter. Mrs. Ramphrey had become disabled by a serious illness unrelated to the accident and was unable to testify at trial. Her testimony, as well as that of the medical witnesses, appears in the form of depositions filed into the record. Plaintiffs-appellants argue that since the trial judge did not have the opportunity to view three main witnesses while they were testifying, the “manifest error” rule does not apply and the standard of review by the appellate court is broader than in the usual case. Plaintiffs cite Walker v. Union Oil Mill, Inc., 369 So.2d 1043 (La.1979), in which it was noted that the manifest error rule was not applicable to findings of fact made from a review of the transcript by a trial judge who had succeeded the judge who tried the case.

Plaintiffs’ argument is misplaced. The “manifest error” or “clearly wrong” rule applies to review of the trial court’s findings of fact. In this case the trial court’s findings of fact as articulated in its written reasons for judgment are accurate and correct; plaintiffs do not seriously attack those findings as being manifestly erroneous. Plaintiffs’ complaint is directed more toward the amount of the award given the facts as established by the evidence and found by the trial court.

In reviewing the amount of an award of damages, the appellate court’s function is to determine whether the much discretion given to the trial court by LSA-C.C. Art. 1934(3) has been abused, not whether the amount of the award is manifestly erroneous or clearly wrong. In other words, based on the facts as found by the trial court, and determined by the appellate court not to be manifestly erroneous, is the award so high or so low as to be an abuse of the trial court’s discretion? That the testimony of some or most of the witnesses was taken by deposition does not take away from the much discretion accorded to the trial court in fixing the amount of damages. The standard of appellate review enunciated in Reck v. Stevens, 373 So.2d 498 (La.1979), and other recent Supreme Court cases remains the same.

In support of their argument that the award is so inadequate as to constitute an abuse of discretion, the plaintiffs rely on the awards made in Rue v. State, Dept. of Highways, 376 So.2d 525 (La.App.3d Cir. 1979) ($60,000) and Dickinson v. Maryland Casualty Company, 364 So.2d 179 (La.App. 1st Cir. 1978), writ denied 366 So.2d 561 (La.1979) ($50,000), involving somewhat similar injuries. In support of its argument that the award is excessive, defendant relies on Francis v. Government Employees Insurance Company, 376 So.2d 609 (La.App. 4th Cir. 1979), writ denied 378 So.2d 1391 (La.1980) ($15,000); Bondi v. Government Employees Insurance Company, 349 So.2d 1327 (La.App. 1st Cir. 1977), writ denied 350 So.2d 1215 (La.1977) ($40,000); Hebert v. Perkins, 260 So.2d 15 (La.App. 4th Cir. 1972) ($15,000); Redd v. Prevost, 288 So.2d 74 (La.App. 4th Cir. 1974) ($22,500); Farace v. Government Employees Insurance Company, 328 So.2d 400 (La.App.3d Cir. 1976) ($40,000); and Higgins v. Johnson, 349 So.2d 918 (La.App. 1st Cir. 1977) writs denied 351 So.2d 161 and 162 (La.1977) ($40,-000), involving somewhat similar or greater-injuries.

Looking to the individual circumstances of the present case, we do not find the award of $31,000 for the particular injury and its effect on this plaintiff to be either inadequate or excessive, nor do we find a clear abuse of discretion. The cases cited by each side are of little aid in making this determination because they do not involve facts and circumstances closely similar to the present case, because they do not represent the mass of past awards for similar injuries, and also because the award in the present case is not greatly disproportionate to the awards in those cases. See Reck v. Stevens, supra.

The judgment of the district court is amended to increase the award for special damages from $3,640.15 to $8,421.13 and, as amended, is affirmed. Costs of appeal are assessed equally to the appellants and the appellee.

Amended and, as amended, affirmed.


author: FRED W. JONES, Judge.

text:
    AMERICAN BANK & TRUST COMPANY OF SHREVEPORT, Plaintiff-Appellee, v. Bernard BODDIE, Defendant-Appellant.
    No. 14696.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 2, 1981.
    Bernard Boddie, in pro. per.
    Burnett, Sutton, Walker & Callaway by Glenn E. Walker, Shreveport, for plaintiff-appellee.
    Before HALL, MARVIN and FRED W. JONES, JJ.
   FRED W. JONES, Judge.

Plaintiff bank filed suit against the defendant via executory process, under which defendant’s encumbered automobile was seized and sold at public sale. Since the sale proceeds were insufficient to satisfy the indebtedness, plaintiff sought and received a deficiency judgment, from which defendant appeals. We affirm.

Defendant argues on appeal that discrepancies between the promissory note and chattel mortgage executed by him in favor of plaintiff rendered the executory proceedings null and that this fatal defect constituted a bar to the action for a deficiency judgment. Defendant concedes that this defense was not raised in the trial court prior to rendition of the deficiency judgment.

Plaintiff bank’s suit for executory process was filed on April 25, 1979. Defendant did not seek to enjoin the public sale of his car thereunder. The automobile was sold on May 23, 1979 for $2340. On July 11, 1979, plaintiff bank filed this suit for a deficiency judgment in the sum of $12,387.85, subject to a credit of $2047 representing the net amount realized by plaintiff from the public sale. The answer of defendant, a practicing attorney who represented himself, generally denied the allegations of the petition and affirmatively pled lack of consideration for the promissory note. At the trial on the merits, on March 9,1981, defendant filed an exception of no right of action and no cause of action, alleging simply that the sale under executory process was null and void. The minutes reflect that this exception was overruled.

At the conclusion of the trial, in oral argument defendant re-urged his exception, pointing out that “Dansy did represent the bank at the time the note was signed and the note showed he was a witness on the chattel mortgage ...” No mention was made of discrepancies between the provisions of the promissory note and the chattel mortgage.

In his oral reasons for judgment, obviously addressing what he considered to be the only defense posed by defendant, the trial judge observed that “plaintiff has sufficiently proven that disbursements were made totalling the amount of the note” and “there is sufficient consideration shown.” Consequently, judgment was rendered in favor of plaintiff as prayed for.

Louisiana appellate courts are authorized by La.C.C.P. Article 2164 to render any judgment “which is just, legal and proper upon the record.” However, our jurisprudence has qualified this codal provision with the general rule that a defense not raised and passed upon in the trial court may not be raised for the first time on appeal. Young v. Warner, 283 So.2d 547 (La.App. 1st Cir. 1973); X — L Finance Co. v. Fenske, 197 So.2d 182 (La.App. 1st Cir. 1967). Furthermore, Rule 9A of the Uniform Rules for the Courts of Appeal provides that we “ordinarily will review only issues which were submitted in the trial court . . . unless the interest of justice requires otherwise.”

This rule pretermitting appellate review of defenses presented for the first time on appeal has particular applicability to the defense posed by this defendant, involving alleged discrepancies between a promissory note and chattel mortgage.

The defendants in Baton Rouge Bank & Trust Co. v. Subco, Inc., 306 So.2d 312 (La. App. 4th Cir. 1974) sought to set aside a deficiency judgment, contending that a pri- or executory proceeding was null because the copy of a corporate resolution attached to the act of mortgage was in improper form. The case was remanded because of the appellate court’s determination that the trial court did not properly consider the nullity issue. The court of appeal pointed out, however, that the alleged discrepancy standing alone would not suffice to nullify the deficiency judgment. The stated purpose of the remand was to afford defendants an evidentiary hearing at which they would have an opportunity to prove that the discrepancy had a material effect upon the transaction because of their reliance upon the error.

The defendant in this case cites the following three alleged discrepancies between the promissory note and the chattel mortgage: (1) the note shows a principal amount of $17,903.16 while the chattel mortgage refers to a note for $17,902.16; (2) both the note and the chattel mortgage provide for a late charge of 5% of the installment due or $5.00, whichever is less, but the note also gives the holder an option to charge more; and (3) the note stipulates interest at 8% after maturity while the chattel mortgage provides for an annual percentage rate of 14.1% for one year after maturity, with 8% thereafter.

Since this nullity issue was not raised in the trial court (unlike Baton Rouge Bank & Trust Co. v. Subco, Inc., supra) the trial judge did not have an opportunity to hear relevant evidence and pass upon the merits of the defense. Needless to say, because of defendant’s dereliction we are similarly handicapped. There is simply nothing in the record as constituted to show that the alleged discrepancies had a material effect upon the transaction in question because of defendant’s reliance upon them. Further, under the circumstances a remand is not justified, since this would in effect reward with a new trial one whose laches caused the result of which he complains.

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


author: MARVIN, Judge. HALL, Judge,

text:
    Willie FRANKLIN, Plaintiff-Appellant, v. Kennon HARVILL, et al., Defendants-Appellees. M. Kennon HARVILL, et al., Plaintiffs-Appellees, v. Willie FRANKLIN, Defendant-Appellant.
    Nos. 14698, 14699.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 2, 1981.
    En Banc. Rehearing Denied Dec. 10,1981.

      Louis Berry, Vanue B. Lacour, Baton Rouge, for Willie Franklin.
    Norman R. Gordon, Jack M. Bailey, Jr., Shreveport, M. F. Rick Fayard, Jr., Bossier City, R. Perry Pringle, Shreveport, for M. Kennon Harvill, Rick Fayard and Norman Gordon.
    Before HALL, MARVIN and FRED W. JONES, Jr., JJ.
   MARVIN, Judge.

Three defendants in rule, a lawyer, his client, and a potential witness for that client, appeal a judgment that cast them in solido for expenses, including attorney fees incurred by the adverse parties in two interrelated lawsuits because of the failure of these three to attend depositions to which they had been notified and subpoenaed to attend. CCP 1473.

We noticed Speeg v. Stewart Title Guaranty Co., 381 So.2d 582 (La.App. 4th Cir. 1980), writ refused, and Delk v. Bel Builders, Inc., 404 So.2d 527 (La.App. 4th Cir. 1981) which held that a judgment against a litigant for expenses caused by the failure of that litigant to respond to the discovery process is not an appealable judgment. We follow Berard v. American Employers Insurance Company, 246 So.2d 687 (La.App. 1st Cir. 1971), which was distinguished in Speeg and Delk, and hold that a judgment against an attorney for the expenses caused by his failure to respond to discovery is an appealable judgment. Since the judgment is appealable by the attorney, we review the judgment also against the other defendants in the interest of judicial efficiency. CCP 2164.

The appellant-client of the attorney and the appellant-potential witness of that client failed to respond to discovery solely upon the advice of the appellant attorney and we amend to delete them from the judgment. Allen v. Smith, 390 So.2d 1300 (La.1980). We affirm the judgment against the appellant-attorney.

At the time the appellants were notified and subpoenaed in mid-December 1980 to attend the depositions scheduled February 2, 4, and 6, 1981, there were three lawsuits pending. Various motions and exceptions were pending in these unconsolidated but related actions. After February 2, 1981, and before the hearing on the rule against appellants for expenses, the second-filed action was dismissed. In that particular action, the appellant attorney [belatedly?] filed a motion for a protective order, or more properly, a suspensive order, on February 2, 1981, on the grounds that motions and exceptions were pending in the first and third suits, that the adverse counsel had not made effort to “agree upon and fix a convenient time for the taking of said depositions,” and that the appellant attorney would be required to travel from Baton Rouge to Bossier Parish and remain there for five days to attend the taking of the depositions, and would be caused “annoyance ... and undue burden and expense.”

The appellant attorney did not file with the motion above mentioned any order or rule to show cause, but simply prayed for a protective order to suspend the “. . . depositions until such time as the pending motions can be decided and to require the rescheduling of the depositions ... to eliminate the annoyance . . . undue burden and expense.”

In appellant-attorney’s letter dated January 29, 1981, received on February 2, 1981, by the addressee-attorney who scheduled the depositions, the appellant attorney stated:

“I regret that you have rejected my request to reschedule the . . . depositions ... so as to eliminate the difficulties as set forth in the enclosed copy of the Motion for a protective order which I am filing. Please understand that it is [our] position that the taking of the depositions on February 2, 4, and 6 are suspended by the pendency of the already existing Motions and by the filing of this Motion . . . and accordingly will not appear ... as scheduled ... on February 2, 4, and 6.”

Appellants contend on appeal that the combining of the notice of the depositions in the three suits was erroneous and was prejudicial to them, that the pendency of motions suspended the taking of depositions, and that adverse counsel was in “bad faith” in scheduling depositions on successive alternate days and in attempting to burden and harass appellant.

The broad issue is whether the trial court has abused its discretion in applying the discovery articles of the Code of Civil Procedure. In the absence of a showing of manifest error constituting a clear abuse of discretion, the judgment of the trial court, in discovery matters, will be upheld. See Vallery v. Olin Corp., 337 So.2d 631 (La.App.3d Cir. 1976); Dawson v. Lindsey, 143 So.2d 150 (La.App. 1st Cir. 1962).

We do not find that appellants were prejudiced in any way by the captioning of the discovery pleadings with the respective titles and the docket numbers of the three pending actions. The appellant attorney understood, as we now understand, that the three cases were not consolidated and that adverse counsel was scheduling discovery in each of the three cases with the appellant witness scheduled on February 2, the appellant lawyer on February 4, and the appellant client of that lawyer, on February 6. The appellant attorney did not object to the form of the discovery pleadings or to the fact that the three cases had not been consolidated and his motion for a protective order was filed only in one case. Appellant attorney cites no authority in support of his contention of prejudice and we find none..

The trial court correctly ruled that either or both the good faith of one counsel and the bad faith of the other were not an issue under the circumstances of this case, but that the issue was failure to comply with the discovery and whether that failure was substantially justified or that an award of expenses, because of that failure, would be unjust under circumstances. CCP 1473, 1471.

The trial court correctly labeled erroneous, the appellant attorney’s contention that the taking of depositions was suspended by the pendency of the already existing motions and exceptions and by the filing of the motion for a protective order. Appellant attorney’s reliance on Viator v. Sonnier, 355 So.2d 1091 (La.App.3d Cir. 1978), is misplaced because that case involved an order under the discovery process which, among other things, ordered a postponement in surgery scheduled by a plaintiff, ordered that the defendant would be allowed to have observers present and to photograph the eventual surgery, and stated the sanction to be imposed in the event plaintiff did not obey the discovery order.

Under the original CCP 1452, a party or person subject to discovery, under some circumstances for good cause, could limit the discovery, upon a motion “reasonably made”. Arnold v. United States Rubber Company, 203 So.2d 764 (La.App.3d Cir. 1967). We note that that requirement was not included in Act 574 of 1976 which in part reenacted Chapter 3 of Title III of Book II, CCP, and renumbered some sections of the discovery statutes. Compare CCP 1426.

While CCP 1444 provides that a party or deponent may object during the taking of a deposition to the manner in which the examination is being conducted and cause the examination to be suspended for the time necessary to make a motion for an order limiting in whole or in part the examination, that article does not excuse or relate to sanctions for the failure to appear. CCP 1444 presupposes that the party or deponent has appeared and that the examination is being conducted in bad faith or in [an unreasonable] manner. Compare Brasseaux v. Girouard, 214 So.2d 401 (La.App.3d Cir. 1968). A party or prospective deponent who has been notified and scheduled to appear to be deposed on a given date will not be justified in failing to appear solely by the filing of a motion for a protective order on such grounds as are here asserted. Whether or not the failure to appear is substantially justified, or whether the award is unjust, under CCP 1473, will depend on the circumstances of the individual case.

Under the circumstances shown, the appellant attorney was not substantially justified in failing to appear at the appointed time or in advising other appellants not to appear. These circumstances make the award against the other appellants unjust but do not render the award against the appellant attorney unjust. In assessing the award, the trial court expressed that appellant’s failure to appear was somewhat mitigated by the complicated nature of the interrelated lawsuits and that appellees should recover only for the expenses arising out of the February 2 failure and not out of the later failures. Appellants do not argue quantum.

The judgment appealed is amended to delete all names of the defendants cast in judgment except the name of the appellant attorney, and as amended, at appellant’s cost, judgment is AFFIRMED.

HALL, Judge,

concurring,

I concur in the affirmance of the judgment for expenses against the appellant-attorney for the reasons expressed in the majority opinion. I also concur in the reversal of the judgment against the appellants— party and witness for the reasons expressed in the majority opinion, but I believe the appealability of the judgment against them and this court’s jurisdiction to grant them relief needs to be addressed more fully.

The majority opinion, citing Berard v. American Employers Insurance Company, 246 So.2d 686 (La.App. 1st Cir. 1970), holds that the judgment against the attorney is appealable, distinguishing cases which hold that a judgment against a party for expenses for failure to appear at a deposition is not appealable. The implication of the majority opinion, citing Speeg v. Stewart Title Guaranty Co., 381 So.2d 582 (La.App. 4th Cir. 1980), writ refused, and Delk v. Bel Builders, Inc., 404 So.2d 527 (La.App. 4th Cir. 1981), is that the judgment against the party to the suit is an unappealable interlocutory judgment. If that is so, then this court has no jurisdiction of the party’s appeal and is powerless to grant him the relief he seeks under his appeal. Perhaps it is the intent of the majority opinion to treat his appeal as an application for supervisory writs and to grant him relief under the supervisory jurisdiction of this court, but the majority opinion does not so state. Although the majority opinion seems to treat the judgment against the party and the witness as falling within the Speeg rule, it seems to me the witness is in the same position as the attorney as a nonparty to the suit, and the appeal of the witness would fall within the Berard rule. Additionally, I point out that it is not entirely clear that a witness can be assessed with expenses under Article 1473.

My approach, however, to the jurisdictional issue would be to reexamine the holding of Speeg, Delk, and earlier cases that a judgment against a litigant for expenses caused by the failure of the litigant to respond to the discovery process is not an appealable judgment. The First and Third Circuits reached the same result in the earlier cases of Winslow v. Goodyear Tire & Rubber Co., 359 So.2d 699 (La.App. 1st Cir. 1978); Berard v. American Employers Insurance Company, supra; Roy v. Moity, 225 So.2d 315 (La.App.3d Cir. 1969); Advertiser, Division of Independent, Inc. v. Tubbs, 199 So.2d 426 (La.App.3d Cir. 1967); Anderson v. Southern Consumers Education Found., 196 So.2d 686 (La.App.3d Cir. 1967). In spite of this consistent line of persuasive authority from the First, Third, and Fourth Circuits, I would hold that a money judgment under LSA-C.C.P. Art. 1473 for expenses including attorney fees against a party to the litigation for failure to comply with discovery procedures is a final appeal-able judgment.

The rationale of most of the cited cases is that such a judgment is an interlocutory order in the course of the litigation and that to allow an appeal from such a judgment would tend to encourage a multiplicity of appeals and retard the progress of the litigation. My view is that a demand for a money judgment for failure to comply with discovery procedures is an entirely separate and distinct demand from the demand on the merits (as is recognized in several of the cited cases) and that a judgment on such a demand is a final, appealable judgment.

The original opinion of Judge Lemmon in the Speeg case, 377 So.2d 589, and the dissenting opinion of Judge Redmann from the decision on reconsideration in the same case, 381 So.2d 582, make good sense. These opinions point out that the claim for and judgment for expenses are entirely separate from the principal demand and an appeal from such a judgment would not retard the progress of the principal demand under LSA-C.C.P. Art. 2088 which provides that the trial court retains jurisdiction to proceed with those matters not reviewable under the appeal.

Presumably such a judgment would become definitive and would be subject to execution without reference to the progress of the main demand or the merits of the lawsuit. Surely then it must be a final, appealable judgment insofar as the claim for expenses is concerned. Surely the party against whom such a judgment is rendered should have the right to suspensively appeal to prevent execution of the judgment prior to review on appeal.

Other judgments for damages, expenses, and attorney fees rendered during the course of ongoing litigation have been considered as final, appealable judgments. It is established in the jurisprudence that a judgment dissolving a writ of attachment or sequestration and awarding damages is a final judgment and is appealable, at least as to that portion of the judgment awarding damages. See Kinchen v. Kinchen, 256 La. 28, 235 So.2d 81 (1970); Louisiana Power & Light Company v. Crescent Properties Company, Inc., 267 So.2d 740 (La.App. 4th Cir. 1972); Talley v. Bradley, 177 So.2d 624 (La.App.3d Cir. 1965).

The demand for expenses for failure to comply with discovery procedures is in the nature of an incidental demand under LSA-C.C.P. Art. 1915. Under that article a final judgment may be rendered on the incidental demand separate from the principal demand even though it may not adjudicate all the issues in the case. Such a judgment is appealable and the trial court retains jurisdiction to adjudicate the remaining issues of the case.

My research has not revealed any cases, other than the cases cited above dealing with money judgments for expenses under the discovery articles, where a money judgment under any circumstances is treated other than as a final, appealable judgment.

This court having raised the jurisdictional issue, I would hold that the judgment against all of the appellants, attorney, party and witness, is appealable.

I respectfully concur in the result reached in the majority opinion.


author: JASPER E. JONES, Judge.

text:
    Percy SCOTT, Plaintiff-Appellee, v. SEARS, ROEBUCK & COMPANY, Defendant-Appellant.
    No. 14700.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 2, 1981.
    En Banc. Rehearing Denied Dec. 10,1981.

      C. William Gerhardt, Shreveport, for plaintiff-appellee.
    Wilkinson & Carmody by Lawrence W. Pettiette, Jr., Shreveport, for defendant-appellant.
    Before PRICE, MARVIN and JASPER E. JONES, JJ.
   JASPER E. JONES, Judge.

This is a workers’ compensation case. The defendant, Sears Roebuck & Company, appeals from a judgment in favor of the plaintiff, Percy Scott, for permanent partial disability, interest, penalties, attorney’s fees and costs. Plaintiff did not appeal nor answer defendant’s appeal. We amend and affirm.

Defendant sets forth five assignments of error. First, that the trial judge erred in finding that Scott was permanently partially disabled. Second, that is was error to allow the testimony of a medical expert whose opinion and intended use at trial were unknown to Sears until the morning of the trial. Third, that it was error to refuse a motion for continuance based on incomplete discovery and oral representation that a material witness would be absent. Fourth, that the trial judge erred in finding the termination of benefits arbitrary and capricious. Fifth, that the trial judge erred by awarding excessive attorney’s fees. In his brief plaintiff requests an increase in the award of attorney’s fees.

It is not contested that Scott injured his back while working as a porter in defendant’s Mall St. Vincent store in Shreveport. The injury occurred on September 7, 1978.

The treatment of Scott’s back injury required two separate operations. Scott was initially treated conservatively and attempted to return to work a few weeks after he was hurt. On that occasion Scott had to quit working because of pain after only about two hours. He has not worked since.

The first operation was performed by Dr. A. E. Dean, Jr. on April 3, 1979. It was a hemilaminectomy and removal of a damaged disc at the L4 level. On February 26, 1980 Dr. Dean performed the second operation. That time he again did a hemilami-nectomy and removed a damaged disc at the L5 level. Dr. Dean also performed a decompression and posteriolateral fusion in the second operation.

Sears paid Scott full workers’ compensation benefits through October 18,1980. Reduced benefits were paid for the remainder of October when all payments were terminated. Scott then brought this suit.

We initially address plaintiff’s request, made in brief, for an increase in attorney’s fees. As Scott has not answered defendant’s appeal, nor taken his own, this request for an increase in the attorney’s fee award may not be considered by this court. LSA-C.C.P. art. 2133.

We now consider Sears’ assignment as error the trial judge’s denial of its motion for continuance based on incomplete discovery and an oral representation that a material witness would be absent. Sears argues that this motion was based on a peremptory ground under LSA-C.C.P. art. 1602 which provides in part:

“A continuance shall be granted if .. . a material witness has absented himself without the contrivance of the party applying for the continuance ...”

The allegedly material witness whose absence forms the basis of the motion is Mr. Stanley Morris, an attorney in the Sears legal department. Morris was the Sears employee who made the decisions as to plaintiff’s request for workers’ compensation. It was apparently Morris who ordered the reduction in and then termination of Scott’s workers’ compensation benefits.

Sears requested ten days notice of when the case was set for trial. Sears did not suggest, and the record does not indicate, that it did not receive that notice. Thus, we have Sears claiming a peremptory continuance because with ten days notice it could not get its own employee, Stanley Morris, to Shreveport for the trial.

The reason Sears gives for its inability to have Morris at the trial is that he had been transferred from Dallas to Atlanta and could not be reached since he was in the process of moving. That excuse is unimpressive. It is inconceivable to this court that with ten days notice Sears could not have its own employee in Shreveport for the trial if it had exercised diligence.

It is not error to refuse a continuance to a party who has made no genuine diligent attempt to secure the attendance of the alleged material witness. Thompson v. Warmack, 231 So.2d 636 (La.App. 3d Cir. 1970). Under the facts here presented we find Sears has not made a diligent attempt to secure the attendance of Morris. This amounts to contrivance on the part of Sears within the contemplation of LSA-C.C.P. art. 1602. We also doubt that Morris was a material witness within the purview of LSA-C.C.P. art. 1602 because as will be reflected in the opinion on the merits there was no testimony he could have given affecting the plaintiff’s entitlement to compensation or penalties and attorney’s fees.

The other ground for Sears’ pre-trial motion for continuance is that discovery was not complete. The decision to grant or deny this motion lay within the discretion of the trial judge. LSA-C.C.P. art. 1601. Stablier v. Partin, 278 So.2d 537 (La.App. 1st Cir. 1973); Patterson v. Leggio, 347 So.2d 1262 (La.App. 1st Cir. 1977); Harrell v. Delta Drilling Company, 251 So.2d 97 (La.App. 3d Cir.1971).

This suit was filed in November, 1980, and was not tried until February 19, 1981. While this may be an unusually short time between filing suit and trial of the case, we believe there was ample time for all needed discovery. That Sears failed to pursue discovery with greater vigor should not be allowed to deny Scott the opportunity for an early trial. We find no abuse of discretion by the trial judge. There was no error in denying defendant’s pre-trial motion for continuance.

Sears assigns as error that the trial judge allowed Dr. Phillip Osborne to testify. The testimony of Dr. Osborne, Director of the Pain and Rehabilitation Center, was that plaintiff displayed some objective symptoms which were consistent with his complaints of pain but that he could not quantify the amount of pain Scott felt. Thus, the general effect of Osborne’s testimony was to buttress plaintiff’s testimony and credibility.

Sears contends that it did not learn of Osborne’s opinion and that it would be used at trial until the morning of the trial. Therefore, Sears argues, it should have been given a continuance.

There was no pre-trial order listing the witnesses in this case. However, the plaintiff’s answers to defendant’s interrogatories indicated that plaintiff intended to call as witnesses the physicians he had seen. Both the deposition of Dr. Dean taken on February 3 and the plaintiff’s answers to interrogatories filed February 17 state that plaintiff had gone to the Pain and Rehabilitation Center for tests.

The record does not indicate that Sears actually requested a continuance because of surprise by Osborne’s testimony, but even if it did it was not error to deny it. The request would not have been based on a peremptory ground under LSA-C.C.P. art. 1602 and was, therefore, subject to the trial judge’s wide discretion which will not be disturbed in the absence of abuse. LSA-C.C.P. art. 1601; Stablier; Patterson; and Harrell, supra. There was no abuse of discretion in this case. Following Dean’s deposition which occurred 16 days before trial Sears could have learned of Osborne and then used discovery to protect itself, but did not.

Sears relies on Harrell, supra. We do not think that our decision is at odds with that case. Harrell does not require a continuance when there is surprise medical evidence. It only holds that it is not error to grant a continuance under such circumstances. That does not mean that it is error to deny a continuance in such a circumstance because Harrell also recognizes that such a continuance is left to the discretion of the trial judge and will not be upset in the absence of clear abuse. This assignment is without merit.

Defendant contends the trial judge committed error when he found plaintiff had established permanent partial disability. A worker is partially disabled if he cannot perform the duties of his former employment but can still do other work. LSA-R.S. 23:1221(3). LeBlanc v. Commercial Union Assur. Co., 349 So.2d 1283 (La. App. 1st Cir. 1977); Conlay v. Houston General Ins. Co., 370 So.2d 196 (La.App. 3d Cir. 1979), writ granted 371 So.2d 618 (La.1979). Disability is a question of fact which should not be disturbed in the absence of manifest error. Crump v. Hartford Acc. & Indemn. Co., 367 So.2d 300 (La.1979); Anderson v. Tudor Construction Company, 281 So.2d 817 (La.App. 3d Cir. 1973); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

Sears argues that there is no evidence in the record that supports a finding of permanent partial disability. A review of the evidence does not support this conclusion.

Dr. Dean testified by deposition on February 3, 1981. In his deposition Dean stated that Scott was very near his maximum improvement at that time and that Scott was unable to perform heavy lifting, stooping, and bending, all of which activities were required by plaintiff’s job at Sears. Both plaintiff and Johnny O’Neal, a part-time porter at Sears, testified as to the duties and requirements of the job of porter. They testified the work required heavy lifting, stooping and bending. The plaintiff testified he would not be able to perform those duties in his present condition.

Plaintiff and his nephew, Tony Lee Scott, both testified that plaintiff experiences considerable pain in most types of physical activity. Scott testified he was unable to rake his yard or make his bed because of the pain he experiences in performing those tasks. Plaintiff testified that he suffered pain if he had to stand for more than short periods of time and that he had to spend much time recumbent in order to alleviate the pain in his back. Dr. Osborne testified that plaintiff had objective symptoms which were consistent with his complaints of back pain.

We think the record clearly shows that at the time of maximum recovery plaintiff was unable to perform the heavy labor and the stooping and bending required to be a porter. It is obvious that if Scott cannot work as a porter when he is as well as he is going to get he will never be able to work as a porter. The trial judge was correct in finding Scott partially disabled. We do note that the judgment incorrectly referred to plaintiff as permanently partially disabled but properly specified that the benefits awarded were under the provisions of LSA-R.S. 23:1221(3) and this provision refers to the disability as “partial disability” rather than “permanent partial disability.” (See Fn. 3.) The incorrect designation of the partial disability as permanent partial does not affect appellant’s right to have the judgment reviewed at any time six months after its rendition under the provisions of LSA — R.S. 23:1331 on the grounds that plaintiff’s disability had diminished or terminated. In order to eliminate the inaccuracy here noted we shall amend the first paragraph of the judgment and recast it at the conclusion of this opinion.

The defendant assigns as error the trial judge’s finding that its termination of benefits was arbitrary and capricious. Whether or not a termination of benefits is arbitrary, capricious or without probable cause depends primarily on the facts known to the employer at the time of its action. Lee v. Smith, 248 La. 16, 176 So.2d 413 (1965); DeJean v. B. F. Trappey’s Sons, Inc., 285 So.2d 297 (La.App. 3d Cir. 1973); Arthur v. McConnell, 286 So.2d 499 (La. App. 2d Cir. 1973); Basco v. State of La., Dept.of Corrections, 335 So.2d 457 (La.App. 1st Cir. 1976); Parker v. Louisiana Forestry Com’n., 359 So.2d 252 (La.App. 2d Cir. 1978). The determination of whether the employer’s conduct is arbitrary, capricious or without probable cause is a question of fact. Kilbourne v. Armstrong, 351 So.2d 802 (La.App. 1st Cir. 1977). Therefore, we may not disturb the trial court’s finding unless it is manifestly erroneous. Arceneaux, supra.

The facts surrounding the termination of benefits are clear. Scott was partially disabled but Dr. Dean felt he might be capable of performing light duty work. Sears attempted to have Scott return to work in some light duty position. Scott refused because he felt it would be too painful to do even light duty work. Sears then terminated Scott’s workers’ compensation benefits. The medical reports which Sears had received from Dr. Dean when it reduced plaintiff’s compensation in October of 1980 and when it terminated the compensation in November indicated only that Scott could return to light work. Sears had no medical evidence contrary to Dr. Dean’s reports.

Sears takes the position that an employer is not obligated to pay workers’ compensation benefits to an employee who is capable of gainful activity. Sears bases this contention on LSA — R.S. 23:1221(3) which awards benefits to a partially disabled employee in the amount of 66%% of the difference between his former wages and any lesser wages he “actually earns” during the period of disability.

Sears contends that “actually earns” should be read as “actually earns or is capable of earning.” Under that interpretation no benefits would be due as Scott was offered light duty work with Sears which paid the same as his old job as a porter.

The contention here made by Sears was made and rejected in Mayes v. Louisiana-Pacific Corp., 379 So.2d 46 (La.App. 3d Cir. 1979), writ refused La., 381 So.2d 1232. In light of the extensive discussion of this argument in Mayes we do not feel any useful purpose would be served by a lengthy discussion of the contention here. We conclude that when the legislature stated “actually earned” it meant actually earned. Mayes and LeBlanc, supra.

When Sears terminated benefits it knew Scott was partially disabled and was not earning any wages. Thus, under the language of LSA-R.S. 23:1221(3) Scott was entitled to benefits but Sears terminated them. The trial judge was correct in concluding the termination was arbitrary and capricious and awarding penalties and attorney’s fees. King v. Insurance Company of North America, 288 So.2d 878 (La.App. 3d Cir. 1974); Morgan v. Lumbermen’s Mutual Casualty Company, 317 So.2d 7 (La. App. 1st Cir. 1975); Lachney v. Cabot Corp., 368 So.2d 500 (La.App. 3d Cir. 1979); Brewton v. L. L. Brewton Lmbr. Co., Inc., 349 So.2d 1364 (La.App. 2d Cir. 1977); LSA-R.S. 23:1201.2.

Sears’ final assignment of error is that the attorney’s fees awarded by the trial judge were excessive. Sears bases this contention on the amount of time plaintiff’s attorney spent on this case. Sears argues that the award amounts to over $100 per hour and is therefore excessive.

There was testimony from Donald R. Miller, a Shreveport attorney, that in his view a fee of $5,000 would be appropriate in this case. The record shows that plaintiff’s attorney had spent between 20 and 24 hours on this case prior to trial. The trial took two days and was brought to a successful conclusion for plaintiff. Further, in recent eases awards of attorney’s fees as high as $5,000 have been allowed. Parker, supra; Wactor v. Gurtler Hebert Const. Co., 343 So.2d 383 (La.App. 4th Cir. 1977); Fazande v. Continental Grain Co., 363 So.2d 1253 (La.App. 4th Cir. 1978); DeVillier v. Highlands Ins. Co., 389 So.2d 1133 (La.App. 3d Cir. 1980).

The trial court has great discretion in fixing the amount of attorney’s fees. Wactor, supra; Carter v. Roy O. Martin Industries, Inc., 336 So.2d 1002 (La.App. 3d Cir. 1976). The award of $3,500 was within that discretion. This assignment of error is without merit.

For the reasons set forth in this opinion we amend the judgment to eliminate the reference to plaintiff’s disability as “permanent partial disability” and recast the first paragraph of said judgment to read as follows:

ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of plaintiff, PERCY SCOTT, and against the defendant, SEARS ROEBUCK & CO., for Worker’s Compensation benefits for partial disability under LSA-R.S. 23:1221(3) for a period not to exceed 450 weeks beginning the date of plaintiff’s injury September 7,1978, payable at the rate of $110.67 per week, or in the event he actually is employed for wages during a week the compensation for such week shall be 66%% of the difference between the wage being earned on September 7, 1978 and any wage he actually earns during said week, subject to credit for compensation payments previously paid through November 1, 1980, together with legal interest and a penalty of 12% on each past due payment from the date it became or becomes due until paid.

As AMENDED the judgment is AFFIRMED. All costs are assessed against the appellant.

      . LSA-C.C.P. art. 1601: A continuance may be granted in any case if there is good ground therefor.

      . C.C.P.Art.1602: A continuance shall be granted if at the time a case is to be tried, the party applying for the continuance shows that he has been unable, with the exercise of due diligence, to obtain evidence material to his case; or that a material witness has absented himself without the contrivance of the party applying for the continuance.

      . R.S. 23:1221(3): Compensation shall be paid under this Chapter in accordance with the following schedule of payments:
      (3) For injury producing partial disability of the employee to perform the duties in which he was customarily engaged when injured or duties of the same or similar character, nature, or description for which he was fitted by education, training, and experience, sixty-six and two-thirds per centum of the difference between the wages the employee was earning at the time of the injury and any lesser wages which the injured employee actually earns in any week thereafter in any gainful occupation for wages, whether or not the same or a similar occupation as that in which the employee was customarily engaged when injured and whether or not an occupation for which the employee, at the time of injury, was particularly fitted by reason of education, training, and experience, during the period of disability, but not beyond a maximum of four hundred weeks for such partial disability resulting from injury occurring on or after September 1, 1975, and on or before August 31, 1976; and not beyond a maximum of four hundred twenty-five weeks for such partial disability resulting from injury occurring on or after September 1, 1976, and on or before August 31, 1977, and not beyond a maximum of four hundred fifty weeks for such partial disability resulting from injury occurring on or after September 1, 1977; provided further that for any week during which the employee is paid any compensation under this subdivision (3) the employer shall be entitled to a reduction of one full week of compensation against the maximum number of weeks for which compensation is payable under this subdivision (3) and for any week during which the employee is paid no compensation, because of the employee’s actual earnings during that week, the employer shall not be entitled to a reduction for that week against the maximum number of weeks for which compensation is payable under this subdivision (3), and in no event shall the total number of weeks of compensation for such partial disability under this subdivision (3) be increased beyond the maximum number of weeks stated in this subdivision (3).

      . R.S. 23:1331: A judgment of compensation may be modified by subsequent agreement between the parties, with the approval of a judge of the court which rendered same.
      At any time six months after the rendition of a judgment of compensation, a judge of the trial court that rendered the judgment shall review the same upon the application of either party for a modification thereof, on the grounds that the incapacity of the employee has been subsequently diminished or increased, or that the judgment was obtained through error, fraud, or misrepresentation. In such cases the provisions of R.S. 23:1121 through R.S. 23:1124 with reference to medical examinations shall apply.

      . R.S. 23:1201.1: A. Any employer whose liability for claims arising under the provisions of this Chapter is not covered by insurance, shall pay the amount of any claim due under the provisions of this Chapter, within sixty days after receipt of written notice. Failure to make such payment within sixty days after receipt of notice, when such failure is found to be arbitrary, capricious, or without probable cause, shall subject the employer to a penalty, in addition to the amount of claim due, of 12% of the total amount of such claim, payable to the claimant, together with all reasonable attorney’s fees for the prosecution and collection of such claim, or in the event a partial payment or tender has been made, 12% of the difference between the amount paid or tendered and the amount found to be due, and all reasonable attorney’s fees for the prosecution and collection of such amount. Any such employer who at any time discontinues payment of claims due and arising under the provisions of this Chapter, when such discontinuance is found to be arbitrary, capricious, or without probable cause, shall be subject to the penalties set forth above, payable to the claimant, together with all reasonable attorney’s fees for the prosecution and collection of such claims. The provisions of R.S. 23:1141 limiting the amount of attorney’s fees shall not apply in cases wherein the employer is found liable for penalties and attorney’s fees under the provisions of this Section.
      B. The notice required by the provisions of this Section may be given or made by any person claiming to be entitled to compensation, or by any one on his behalf, and shall contain the information and signature required by R.S. 23:1293 and shall be given as required by R.S. 23:1294.


text:
    Myrtle R. MOORE and Argyle B. Moore, Plaintiffs-Appellees, v. MILLERS MUTUAL FIRE INSURANCE COMPANY OF TEXAS and Lake Providence Port Elevator, Inc., Defendants-Appellants.
    No. 14706.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 2, 1981.
    En Banc. Rehearing Denied Dec. 10, 1981.

      Davenport, Files, Kelly & Marsh by Thos. W. Davenport, Jr., Monroe, for defendants-appellants.
    McKinley & O’Neal by Hodge O’Neal, III, Monroe, for plaintiffs-appellees.
    Before HALL, JASPER E. JONES and FRED W. JONES, JJ.
   FRED W. JONES, Judge.

This suit for workmen’s compensation death benefits, penalties and attorney fees was filed by a deceased employee’s mother and stepfather against the decedent’s employer and its workmen’s compensation insurance carrier. The trial judge found that the plaintiff mother was partially dependent upon her deceased son and awarded her the minimum statutory death benefits, together with penalties and attorney fees.

Defendants appealed, contending that the trial judge erred in (1) finding that the plaintiff mother was actually dependent upon her deceased son’s earnings for her support at the time of his death and (2) holding that defendants were arbitrary, capricious or unreasonable in their refusal to pay death benefits and, consequently, assessing them with penalties and attorney fees.

Plaintiffs answered the appeal, asserting that the plaintiff mother should have been found totally dependent rather than partially dependent upon her deceased son’s earnings; that the attorney fee award should be increased to pay for legal services rendered in connection with this appeal; and, alternatively, and in the event this court should conclude that the plaintiff mother was not dependent at all upon the earnings of the decedent, the plaintiff stepfather should be found to have been dependent upon those earnings.

We amend the judgment of the trial court to assess penalties and attorney fees against the defendant insurer only and to increase the attorney fee award, and otherwise affirm.

Dependency

The Louisiana Workmen’s Compensation Act provides for the payment of death benefits to legal dependents of the deceased employee who were dependent upon his earnings for support at the time of his accident and death. La.R.S. 23:1231.

A surviving spouse who was living with the deceased employee at the time of his accident and death, and children in certain categories, are conclusively presumed to have been wholly and actually dependent upon the employee. LA.R.S. 23:1251.

In all other cases (including claims of parents) “the question of legal and actual dependency in whole or in part, shall be determined in accordance with the facts as they may be at the time of the accident and death....” LA.R.S. 23:1252.

Donald Whatley, the deceased employee, went to work for the defendant employer when he graduated from high school some 14 months prior to his fatal accident, which occurred on September 11, 1979. It appears from the record that Donald Whatley’s father died sometime pri- or to 1976, since in that year his mother married Argyle Moore. She moved with her family, including the minor Donald, to the farm residence of her new husband, located on 40 acres of land. Donald What-ley continued residing there until his death at the age of 20. He was never married and had no children.

At the time of Donald Whatley’s death, members of the household in addition to his mother and stepfather were his 17 year old sister and his invalid maternal grandmother. The sister received monthly social security benefits of $158 and his grandmother received social security benefits of $216 per month and worker’s compensation benefits of $120 per month. Argyle Moore was regularly employed by a butane company at an annual salary of approximately $10,000. Decedent’s mother was not employed outside the home.

Mrs. Moore testified that her son would routinely cash his weekly salary check and give her $40 to buy groceries or pay bills, except for one week each month when he had to make a car payment. Her testimony on this issue was corroborated by her husband and another son, Leonard Whatley. Defendants did not refute this.

The fact of dependency in worker’s compensation claims of this nature is proved by evidence that the deceased employee made actual contributions to the support of the claimant. The question then becomes whether the claimant was totally or partially dependent upon the contribution of the decedent. If that contribution was the only support of the claimant dependent, he would be classified as totally dependent. On the other hand, the partial dependent is one who at the time of the fatal accident received only a part of his support from the decedent’s earnings. In other words, in determining if the claimant was totally dependent upon the earnings of the deceased employee, the pivotal question is whether the claimant was forced to rely entirely upon contributions from the decedent. If this contribution was only one of several sources from which support was forthcoming, the dependency would be classified as partial rather than total. Malone & Johnson, Worker’s Compensation, § 310, pp. 57— 60.

As pointed out in Hurks v. Bossier, 367 Co.2d 309 (La.1979) proof of actual dependency does not require a showing that the claimant would have lacked the necessities of life without decedent’s contributions. The court added:

“Partial dependency may be found when, although the claimant may have other substantial sources of support from his own work, from property, or from other persons on whom claimant is also dependent, the contributions made by the decedent were looked to by the claimant for the maintenance of his accustomed standard of living.” (Emphasis added)

In this case there is no question but that the deceased employee made regular cash contributions to his mother and that she looked to these for the maintenance of her accustomed standard of living, even though she had a substantial source of support from her husband. We find, therefore, that the trial judge correctly held the plaintiff mother was partially dependent upon the earnings of her deceased son for her support at the time of his death.

It should further be noted that the determination of the extent of partial dependency is the gross amount contributed to the dependent and not the net sum which the claimant derived after allowances for expenses due to the decedent’s having resided with the claimant. See Chauvin v. American Mutual Liability Ins. Co., 17 La. App. 187, 134 So. 450 (Orl. Cir. 1931).

The formula for ascertaining the rate of worker’s compensation death benefits due partial dependents is set forth in La.R.S. 23:1231. Decedent’s weekly earnings in 1979 were $163.34. Considering that he skipped contributing to his mother one week each month, his average weekly contribution to her support in 1979 was $30. It is apparent that, calculating her weekly death benefits in accordance with the described formula, Mrs. Moore would receive less than the statutory minimum of $44. Therefore, the trial judge correctly awarded her that amount as a partial dependent of her deceased son.

Penalties and Attorney Fees

La.R.S. 22:658 provides for the assessment of penalties and attorney fees against an insurer for failure to pay policy benefits within 60 days after receipt of proof of loss and demand for payment, when such failure is found to be arbitrary, capricious, or without probable cause.

Since this statutory provision is penal in nature, it is to be strictly construed and the stipulated sanctions should be imposed only in those instances in which the facts negate probable cause for nonpayment. Crawford v. Smith Plumbing & Heating Service, Inc., 352 So.2d 669 (La.1977).

Whether failure to make compensation payments is arbitrary, capricious or without probable cause within the meaning of the cited statute depends primarily upon circumstances existing and known to the insurer at the time compensation payments are refused. Basco v. Dept. of Corrections, 335 So.2d 457 (La.App. 1st Cir. 1976).

The adjuster who investigated this fatal accident for the defendant insurance company testified he visited decedent’s place of employment on the day after the accident. He learned at that time the employee was single and lived with his mother and stepfather. Upon checking with the employer, the adjuster ascertained the decedent claimed no dependents on his tax withholding form. Asked if, upon the basis of this information, he envisioned the possibility the Moores might be dependent upon the decedent, the adjuster replied: “Well, that thought crossed my mind. However, we reported the facts to the insurance company and they advised us not to approach his mother and stepfather directly.” Instead, the adjuster was instructed to make “discreet” inquiries.

By letter dated March 31, 1980, counsel for the Moores made demand upon the defendant employer for worker’s compensation death benefits based upon the asserted dependency of the mother and stepfather. When there was no response to this demand, suit was filed on May 23,1980. Defendants then proceeded to verify the stepfather’s employment and the amount of his salary. In August 1980 defendants took the discovery depositions of plaintiffs. Both testified the decedent gave his mother $40 per week from his earnings.

The March 1980 letter from plaintiffs’ counsel to the defendant employer satisfied the “demand” requirement of La.R.S. 22:658. Henley v. F. F. Sullivan, Jr., Contractor, Inc., 391 So.2d 838 (La.1980). The question then is whether the failure of defendants to pay death benefits to the plaintiff mother within 60 days thereafter was arbitrary, capricious or without probable cause.

Defendants argue they were justified in refusing payment of death benefits because their investigation revealed decedent claimed no dependents for income tax purposes; neither the mother nor the stepfather was conclusively presumed under the law to be dependent upon decedent’s earnings; and the stepfather was regularly employed at a substantial salary.

In written reasons for judgment the trial judge recognized that plaintiffs had the burden of proving dependency, but assessed penalties and attorney fees because “once demand was made, the Defendants should have considered the evidence.”

In Dowden v. Liberty Mutual Insurance Co., 346 So.2d 1311 (La.App. 3rd Cir. 1977) penalties and attorney fees were awarded because the insurer “failed to fully investigate the claim” before refusing to pay benefits.

In this case the defendant insurance company appeared to rely primarily upon the decedent’s failure to claim dependents for income tax purposes to conclude that he had no actual dependents at the time of his death. Therefore, when demand for payment was made no further investigation was conducted, except to verify the employment of the stepfather.

The fact that the decedent was a young single man living with his mother at the time of his death should have alerted the defendant insurance company to the real possibility of actual dependency by his mother to some extent upon her deceased son’s earnings. Obviously, this dependency could exist under our Worker’s Compensation laws despite the fact that the mother was not listed by decedent as a dependent on his income tax returns, since the pertinent criteria are different. Furthermore, the fact of the stepfather’s employment did not rule out the possibility that decedent was contributing to the support of his mother and that she relied upon these contributions to maintain her accustomed standard of living.

To summarize, at the time demand was made for payment of death benefits, we find that the defendant insurance company did not possess facts which constituted probable cause for nonpayment. The defendant made no reasonable effort to conduct a further investigation to ascertain whether those facts existed. It appeared satisfied simply to verify the stepfather’s employment. As explained, that alone would certainly not negate the possibility of dependency by the mother upon earnings of the deceased. Consequently, we agree with the trial judge in the assessment of penalties and attorney fees since the defendant insurer acted without probable cause in declining to pay death benefits. However, under La.R.S. 22:658 that assessment should be levied against the insurer only rather than against both it and the defendant employer. Wainwright v. Files Timber Co., 404 So.2d 1287 (La.App. 2d Cir. 1981).

The award of $5,000 as an attorney fee was within the broad discretion of the trial judge. Plaintiff requested in her answer to the appeal and is entitled to an additional attorney fee award to cover the cost of legal services rendered in connection with this appeal, which increase we fix at $500.

For the reasons set forth, we amend the judgment of the trial court to assess penalties and attorney fees against the defendant insurer only and increase the attorney fee award to $5,500. As amended, the judgment is affirmed, with the cost of appeal assessed to appellants.

      . The parties stipulated that Donald Whatley was killed in an accident which occurred during the course of and arose out of his employment with the defendant employer.

      . Plaintiffs concede that this determination excludes a finding of dependency on the part of the stepfather also, since the mother is a “preferred” dependent under La.R.S. 23:1232(7).

      . This provides in pertinent part that “if the employee leaves legal dependents only partially actually dependent upon his earnings for support at the time of the accident and death, the weekly compensation to be paid shall be equal to the same proportion of the weekly payments for the benefit of persons wholly dependent as the amount contributed by the employee to such partial dependents in the year prior to his death bears to the earnings of the deceased at the time of the accident.”


author: MARVIN, Judge.

text:
    Mary Zeagler BARTLEY, Plaintiff-Appellant, v. INSURANCE COMPANY OF NORTH AMERICA, et al., Defendants-Appellees.
    No. 14707.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 2, 1981.
    En Banc. Rehearing Denied Dec. 10,1981.

      Sanders & Castete, Ltd. by Martin S. Sanders, Jr., Winnfield, for plaintiff-appellant.
    Provosty, Sadler & deLaunay by Albin A. Provosty, Alexandria, for defendants-appel-lees.
    Before PRICE, MARVIN and JASPER E. JONES, JJ.
   MARVIN, Judge.

The recipient of worker’s compensation benefits under a 1979 judgment appeals a 1981 judgment ordering her to submit to a medical examination to determine whether her disability still exists.

We noticed the question of whether this judgment is appealable and requested that the litigants brief this issue along with the merits. CCP 1841, 2083.

We disagree with appellant’s contention that she cannot be compelled to submit to a medical examination after a judgment has awarded her compensation benefits unless the employer first formally files a petition to have the trial court review her present disability. The words and the scheme of the statute are contrary to this contention. See LRS 23:1121-1124, 1331, and Malone-Johnson §§ 283, 284, 382, and cases discussed therein.

This appellant was awarded w.c. benefits in a judgment dated August 14, 1979, which, after a devolutive appeal, was affirmed by this court in 1980. After this appellant declined in writing to submit to a medical examination unless ordered to do so, the trial court, after a rule to show cause, ordered her to submit to the examination on April 15,1981, under the threat of suspension of further w.c. benefits under § 1224.

Section 1331 provides in part that, at any time six months after a judgment adjudicating disability has been rendered, and upon the application of either party on the grounds that the disability has been diminished or increased, the trial court shall “review” that judgment. This means, of course, that the trial court may modify the continuing obligation of the employer to pay weekly compensation benefits as the circumstances of disability may have changed. See Malone-Johnson § 284. The last sentence of § 1331 states that in such cases,

“. . . the provisions of [§] 1221 through ... [§] 1124 with reference to medical examinations shall apply.”

Section 1121 requires the injured employee to submit to a medical examination, arranged and paid for by the employer, “. . . during the pendency of [her] claim for compensation or during the receipt by [her] of payments under this chapter.” Emphasis ours. These sections of the statute, which must be read together, make no distinction between compensation payments voluntarily made before suit and those that are made after a judgment, other than the § 1331 requirement that six months elapse before a trial court can re-examine the circumstances of disability. Neither do we.

The statute is clear that, subject to the six-month requirement, an employee shall submit to a medical examination as often as may be reasonably necessary. § 1221. See Landreneau v. Liberty Mutual Insurance Company, 309 So.2d 283 (La.1975); Malone-Johnson § 284; Long v. Alabama Petroleum Co., et al, 3 La.App. 109 (2d Cir. 1925). An employee may curtail or limit the employer’s demands for medical examinations which become unreasonable in any respect. Malone-Johnson § 382.

Any change in disability six months or more after the adjudication of disability will have to be shown in most part by medical opinion evidence. In such circumstances it would be illogical to require that an employer must first file a petition alleging a change in disability before an employee can be ordered to submit to a medical examination. A holding to this effect would produce needless judicial inefficiency and expense and would result in the filing of petitions solely for the purpose of compelling an employee to submit to an examination. See Employers Mutual Liability Ins. Co. of Wis. v. Harry, 238 So.2d 209 (La.App. 1st Cir. 1970), writ refused.

Under these circumstances then, is an order that requires an employee to submit to a medical examination an appealable judgment? We hold that it is not. CCP 1841, 2083.

A judgment that does not determine the merits but only preliminary matters in the course of the action is an interlocutory judgment which is not appealable absent a showing that it may cause irreparable injury. CCP 1841, 2083, in part. See also Herlitz Construction Company, Inc. v. Hotel Investors of New Iberia, Inc., 396 So.2d 878 (La.1981). No such showing is made or alleged here, apparently because the merits of the question of continued disability of this employee have not been determined and the continuing obligation of the employer to pay compensation benefits remains unaffected. Once the employee is examined by a medical doctor arranged for by the employer, then and, most likely, only then, will the merits of the continued disability of the employee under the compensation law be at issue. Particularly in Her-litz Construction Company, Inc., cited supra, were we reminded that our supervisory jurisdiction extends to those interlocutory judgments which do not cause irreparable injury, the alleged error in which, as a practical matter, may not be corrected on appeal of a judgment on the merits. We are aware that the 3d Circuit apparently held to the contrary in Sepulvado v. Martinez Brothers Pole Company, Docket No. 7899, in denying a writ application on June 5, 1980, before Herlitz, supra.

In Abshire v. Hartford Accident and Indemnity Co., 179 So.2d 508, 509 (La.App. 3d Cir. 1965), Judge Tate discussed the protective measures available to the employee and the applicability of CCP 1493 to § 1331 of the compensation statute. Abshire concluded:

“The provisions of the workmen’s compensation act authorize continuous medical examination of the employee as reasonably necessary. Under them, while an employer might be clearly entitled in general to a medical examination, he is nevertheless not clearly entitled to the particular medical examination at the time and place and by the physician specified in his ex parte motion for same, nor for such an examination without prepaying the reasonable travelling expenses of the employee to report for same (see Weaver v. Mansfield Hardware Lumber Co., above cited, at 1 So.2d [103] 107 [La.App.]). Therefore, the order to obtain the particular examination requested may be granted only upon contradictory motion where the reasonableness of these specifics may be determined in the light of the employee’s interests also.” 179 So.2d 512. Our emphasis.

Compensation for disability benefits is determined by a formula applying a weekly wage and is periodically payable at the times and places as wages were payable to the injured employee. § 1201, § 1221(1), (2), and (3). The employer is obligated to pay compensation during the period of disability. § 1221(1), (2), and (3). The employer may fulfill its payment obligation voluntarily under § 1204, § 1271, or may be subject to suit under §§ 1291-1351. An employee’s claims for compensation may be compromised and settled or commuted to lump sums either before suit or after judgment. §§ 1271-1274.

We re-emphasize that the employee’s responsibility to submit to a medical examination is not limited to the time when the claim for compensation is pending, but extends

“. . . during the receipt by [her] of payments under this [worker’s compensation] chapter.” § 1121, in part.

The rights and the obligations conferred respectively upon the employee and the employer continue during the period of disability. See Abshire, supra, and §§ 1121, 1221(1), (2), and (3).

THE APPEALABILITY OF THE ORDER

Under Abshire, supra, the right of the employer to compel the employee to submit to a medical examination is likened unto Art. 1493 of the discovery section of the Code of Civil Procedure. We endorse this analogical approach particularly because of the continuing nature of the compensation principle. We also observe that while many orders compelling discovery may impose some burden upon a litigant, appellate courts generally have found such orders not to be appealable and have reviewed infrequently those orders only in the exercise of their supervisory jurisdiction.

Even though it might be said that where the issue of reasonableness is contested, the order compelling an examination is a judgment determining the merits of that issue, as a practical matter it seems incongruous to hold that the order in that case is appeal-able, while in other circumstances, such as here, the order is not appealable. As a practical matter, the delay in perfecting appeals and briefing would extend for several months past the time the court ordered the examination to occur and would make the matter somewhat moot. Again, judicial and practical inefficiency would result and the employer would be deprived of his rights under the compensation statute.

Here the attack on the order is based on the failure of the employer to comply with the alleged legal prerequisite of filing a petition to review disability before proceeding contradictorily to obtain the order.

We hold that in such circumstances the order compelling the medical examination is not an appealable judgment within the contemplation of the law and, at appellee’s cost, DISMISS the appeal.

      . Mary Zeagler Bartley v. Insurance Co. of North America, 388 So.2d 461 (La.App. 2d Cir. 1980).

      . See dissenting opinion in Harry, supra.


author: SCHOTT, Judge.

text:
    Linda CURTIS v. John DOE and New Orleans Public Service Inc.
    No. 12714.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 5, 1981.
    James Maher, III, New Orleans, for defendant-appellant (New Orleans Public Service, Inc.).
    Walter J. Wilkerson, New Orleans, for plaintiff-appellee.
    Before REDMANN, SCHOTT and KLEES, JJ.
   SCHOTT, Judge.

Defendant, New Orleans Public Service, Inc., has appealed from a judgment for damages sustained by plaintiff Linda Curtis in an accident while she was a passenger on a bus operated by defendant. The issue in the trial court was whether defendant carried its burden of proof to show that its driver was free from negligence, and in this court whether the trial judge’s determination adverse to defendant was manifestly erroneous.

Plaintiff boarded the St. Claude Avenue bus at the Franklin Avenue stop during the morning rush hour. The bus was already crowded and she was the last of a large number of passengers to board the bus at her stop. She could not go beyond the bottom step, people were standing all around her, perhaps but not certainly on the step with her but definitely on the step ahead of her and all over the platform between the steps and the driver. As the bus approached the very next stop it tilted toward the curb and the crowd of people pushed against her causing her to fall out of the door, which opened for passengers to board at that stop.

It was incumbent upon defendant to prove that its driver was free from negligence. Galland v. New Orleans, Public Service, Inc., 377 So.2d 84 (La.1979). The driver did not see plaintiff until after she fell out of the bus but he testified that hand railings were available to plaintiff on both sides of the door. Plaintiff, on the other hand, testified that she could not reach these railings because of the crowd of passengers around her. Implicit in the trial judge’s conclusion of no negligence on the part of plaintiff is his finding that her actions were not unreasonable and included no breach of duty on her part. Our review of the record establishes that this factual finding is not clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

Defendant argues that this case is in conflict with Schuh v. N.O. Public Service, Inc., 5 La.App. 57 (Orl.1926), but the case is distinguishable in that plaintiff had lost her case in the trial court and the Court of Appeal in affirming found that there was a hand rail available to plaintiff and “she could easily have grabbed it if she had so desired.” In the instant case, all defendant showed was that there were places which should have been available to plaintiff on which to hold but her testimony was uncon-tradicted that she could not reach those hand rails because of the great crowd of passengers around her.

Accordingly, the judgment appealed from is affirmed.

AFFIRMED.


text:
    Alcee BELL v. Ernestine MAGEE.
    No. 12644.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 6, 1981.
    William Noland, New Orleans, for plaintiff-appellant.
    Peter J. Compagno, New Orleans, for defendant-plaintiff-in-reconvention-appellee.
    Before REDMANN, SCHOTT and KLEES, JJ.
   SCHOTT, Judge.

This is an appeal by the husband from a judgment in favor of his wife for a separation from bed and board. He initiated the proceedings with a petition for separation on the ground that she pointed a gun at him and threatened to kill him, forcing him to leave his home. She reconvened for a separation on the ground that after they borrowed $3,000 for the purpose of investing in a snowball stand, he refused to turn it over to her but instead used the money to buy a used car and thereafter left the matrimonial domicile.

At trial the husband testified: On June 25 he was dressing for work when his wife grabbed him and yanked his shirt back and forth. They fought in the house and then in the yard; the three children jumped on him; she returned to the house and got his revolver, pointed it at him and threatened to kill him. She then called the police and wanted them to make him give her the $3,000 which they could not do, and after they left he got into his automobile and left never to return.

The wife testified: She and her husband agreed borrow the $3,000 for the purpose of investing in a snowball stand. After the loan was made he stated that he didn’t want the snowball stand, whereupon an argument ensued and he left. She never held a gun in her hand at anytime during this argument. Twenty-five minutes after her husband left he returned with a newly purchased used car and a change of clothes, and he remained home until June 28 when he left. She has never asked him to return.

A 17-year old daughter testified that she heard the argument between the parties on June 25, but her mother at no time held a gun on the husband. However, this witness also testified that he never spent any nights at the house after he left on June 25.

Finally, the next door neighbor testified that she heard the argument and saw the husband leave but never saw a weapon in the wife’s hand.

Although the trial judge gave no reason for judgment he necessarily concluded that the husband failed to prove his claim that the wife threatened him with a gun. We have no difficulty with this aspect of the case since the husband’s testimony on the point was flatly contradicted by the wife and two witnesses. The trial judge was apparently not persuaded by some vague evidence of a “citation” for threatening her husband with a gun and neither are we. Thus, we affirm that part of the judgment dismissing the husband’s suit.

However, with respect to that portion of the judgment awarding the wife a separation on her reconventional demand, we reverse. The only possible grounds which would support the judgment of separation are cruel treatment and abandonment under LSA C.C. Arts. 138(3) and (6) respectively. By the wife’s own admission, after the husband used the borrowed money to buy the car, he returned home for three days and she apparently acquiesced. We must conclude that she condoned his conduct, doubtfully “cruel treatment” in any case.

As to the abandonment, she was specifically asked how many times she asked him to return and she stated that she never did. One of the elements of proof of abandonment under C.C. Art. 143 is that the spouse “has constantly refused to return to live with the other.” This connotes that the allegedly abandoned spouse must want the other to return and that the separation was not mutually voluntary. Here, the wife’s own testimony provides a clear inference that she was satisfied with his departure.

Accordingly, that portion of the judgment awarding defendant Ernestine Magee a separation from bed and board on her reconventional demand is reversed and set aside, and her reconventional demand is dismissed. That portion of the judgment dismissing the main demand of plaintiff is affirmed. Costs in both courts are divided equally between the parties.

REVERSED IN PART, AFFIRMED IN PART AND RENDERED.


text:
    CITY OF NEW ORLEANS v. David HOWARD.
    No. 12471.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 9, 1981.

      Evelyn F. Pugh, New Orleans, Salvador Anzelmo, City Atty., for plaintiff-appellee.
    Wayne H. Scheuermann, Hammett, Leake & Hammett, New Orleans, for defendant-appellant.
    Before REDMANN, SCHOTT and KLEES, JJ.
   SCHOTT, Judge.

Defendant, David Howard, has appealed from a judgment in favor of plaintiff, The City of New Orleans, enjoining him from operating a welding business in his home which is in an area zoned for residential use. The issues are whether defendant’s use of the property was a legal non-conforming use and thus exempt from residential use restrictions and whether the City’s action to enjoin defendant’s use was barred by the prescription of two years provided by LSA-R.S. 9:5625.

It was incumbent upon defendant to prove that his property was used for welding or similar commercial purposes prior to the adoption of the zoning ordinance in 1970 in order for the premises to qualify as a non-conforming use. The record establishes that defendant began his welding business when he rented the premises in 1972 but there is no evidence to support the existence of similar commercial activity on the premises prior to that date. The testimony of the then owner of the property who rented it to defendant in 1972 and subsequently sold it to him was vague with respect to his use of the property in connection with a trucking or house-moving business. We conclude that defendant did not carry his burden of proving that the nonconforming use predated the adoption of the zoning ordinance.

The more important issue involves prescription. R.S. 9:5625 provides as follows:

“All actions civil or criminal, created by statute, ordinance or otherwise, . . . must be brought within two years from the first act constituting the commission of the violation; .. . provided further that with reference to violations of use regulations all such actions, civil or criminal, . . . must be brought within two years from the date the parish, municipality and their properly authorized instrumentality or agency, if such agency has been designated, first had been actually notified in writing of such violation . . . . ”

In 1975 a complaint was made to the City regarding defendant’s welding activities on the premises and criminal proceedings were instituted against him in the municipal court. When the matter was ready to go to trial in July, 1975, the case was dismissed, apparently in exchange for defendant’s agreement to discontinue his operations. There is a conflict in the testimony of a number of witnesses who testified on both sides as to how long the activities were discontinued, but defendant admitted that he stopped for two or three days and insisted that he operated continuously after that until the day of the trial.

A number of the City’s witnesses testified that no welding activities took place on the premises from 1975 until 1977, when they again complained to the City. City files show that inspection was made in 1977 but no welding activities were found. Finally, a complaint was made to the City in 1978 which precipitated the present suit. We do not have the benefit of the trial judge’s determination as to whether he believed the City’s witnesses or the defendant’s who testified that he never did cease his welding activities from the time he began in 1972. However, in view of defendant’s own admission that he ceased operations for two or three days after he was brought to court in 1975, we are satisfied that the statute of limitations was interrupted and a new prescriptive period could not begin to run without another written notice being given to the City.

Accordingly, the judgment appealed from is affirmed.

AFFIRMED.