text:
    Meldon M. MESHELL, Plaintiff & Appellee-Appellant, v. MOTORS INSURANCE COMPANY, Defendant & Appellee.
    No. 82-5.
    Court of Appeal of Louisiana, Third Circuit.
    July 2, 1982.
    Smith, Ford & Clark, Chris Smith, III, Leesville, for Meshell.
    Provosty, Sadler & deLaunay, F. Rae Swent, Alexandria, for Motors Ins. Co.
    Skeels, Baker, Coleman & Strickland, Donald L. Baker, Shreveport, for interve-nor-appellee.
    Trimble and Associates, Lon P. Wilson, Alexandria, for defendants-appellees.
    Before CULPEPPER, SWIFT and LA-BORDE, JJ.
   CULPEPPER, Judge.

For the reasons assigned in our opinion in the companion case entitled “Meldon M. Meshell v. Insurance Company of North America, et al.,” 416 So.2d 1383, our Docket No. 82-3, in which a separate judgment is rendered by us this date, the judgment appealed in the present case is affirmed. All costs of this appeal are assessed against the plaintiff, Meldon M. Meshell.

AFFIRMED.


source: Caselaw Access Project

author: AUGUSTINE, Judge.

license: Public Domain

text:
    Charles MC DONALD v. Ruth Ann MENUTIS.
    No. 12753.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 11, 1982.
    Rehearing Denied July 16, 1982.
    Paula Perrone, The Law Offices of Paula Perrone, New Orleans, for plaintiff-appellant.
    August J. Lanasa, New Orleans, for defendant-appellee.
    Before SCHOTT, AUGUSTINE and LO-BRANO, JJ.
   AUGUSTINE, Judge.

This is an action for breach of contract, brought by Charles Me Donald against Ruth Ann Menutis. The case is presented for our review to determine whether it is barred by the doctrine of res judicata.

Previous litigation between the parties concerned the following facts:

Charles Me Donald had leased certain property at 235 Bourbon Street from Leon Touzet, the owner. As lessee, McDonald then entered a managerial contract with Ruth Ann Menutis, whereby it was agreed that Menutis would assume full managerial and operational responsibilities of a retail clothing store operating on the premises under the name “Molly Dee”.

By the terms of the contract, McDonald agreed to pay the rent on the premises and the wages of those employed by Molly Dee. In return, Menutis promised to pay McDonald $4,200 per month from the revenues of the store.

In the months that followed, Me Donald was unable to comply with the financial obligations of his lease. The lessor, Leon Touzet, sued for eviction, and Me Donald filed a reconventional demand against Touzet, also naming Menutis as a third-party defendant.

McDonald’s pleadings contained the following allegations:

“XVI
That Menutis and Playgirl Shops of America, Inc., did breach their managerial contract with McDonald in order to force McDonald to lose his lease with Touzet.
That Touzet, Menutis and Playgirl Shops of America, Inc., did conspire together in order to force McDonald to lose his lease. That as a result of this conspiracy, McDonald was unable to comply with the lease with Touzet and was evicted from the premises at 235 Bourbon Street.
That McDonald suffered damages as a result of the aforesaid conspiracy, as follows:
Loss of lease of 235 Bourbon
Street. $20,000.00
Loss of business located at 235
Bourbon Street. 830.000.00
Total. $50,000.00”

The defendants filed an exception of no cause of action, which was sustained by the trial court. The Fourth Circuit Court of Appeals was asked to decide the following issue stipulated by the parties:

Was the pleading by the defendant (McDonald) of the reconventional demand and the third-party demand, as amended, sufficient to plead fraud and conspiracy on the part of plaintiff and third-party defendant?

It was held that McDonald’s allegations lacked sufficient particularity to define a cause of action for fraud, as required by La.Code of Civil Proc. Art. 856. Me Donald’s petition erred in that it did not allege fact, but rather a legal conclusion, i.e., that Menutis had breached her contract.

McDonald then filed the present action against Menutis for breach of the managerial contract, alleging that Menutis breached the agreement by her failure to make any of the monthly payments of $4,200.00.

Defendant Menutis urged the exception of res judicata under CCP Art. 927, which was sustained by the trial court. We reverse.

The authority of the thing adjudged takes place only with respect to what was the object of the judgment. The thing demanded must be the same; the demand must be founded on the same cause of action; the demand must be between the same parties, and formed by them against each other in the same quality. La.Civil Code, Art. 2286.

We find that two critical identities required for res judicata are absent.

The causes of action are not identical. In the previous suit, McDonald’s action was for damages resulting from defendant’s fraud and conspiracy, and thus sounded in tort. McDonald’s allegation of breach of contract was not the focus of his claim but rather was intended to inform the court and the defendant of the manner in which the fraud was perpetrated and to explain how the damages came about. The appellate court rightly decided that McDonald’s allegations of a legal conclusion, “breach of contract”, cannot satisfy the requirement that fraud be pleaded with factual particularity. The court clearly did not decide any rights arising directly out of the contract, nor was it able to do so, because the cause of action was not on the contract, but in tort.

In the present suit, McDonald’s cause of action is the alleged breach of contract by Menutis. Whereas McDonald had previously alleged breach as merely explanatory of the principal allegations of fraud and conspiracy, it is clear that in the present suit, the allegation of breach composed the heart and the entirety of McDonald’s claim. There the obligation sought to be enforced was the defendant’s legal duty to refrain from causing financial injury through fraud; here the plaintiff seeks to enforce a contractual obligation to pay $4,200.00 per month.

Nor is there identity of the thing demanded. In the first suit, Me Donald’s demand was for damages resulting from Menutis’ fraud, i.e., loss of the lease and loss of the business. In the present suit, McDonald demands of Menutis $25,200.00, which represents six monthly payments of $4,200.00 which petitioner alleges to have never been paid by the defendant, as required by the contract.

Appellant has failed to demonstrate to this court two critical identities required by the doctrine of judicata, Art. 2286.

Accordingly, we reverse the judgment of the trial court and remand for proceedings consistent with our determination.

REVERSED AND REMANDED.


author: COVINGTON, Judge.

text:
    Philip A. PETERSEN v. TOWN OF ABITA SPRINGS.
    No. 14817.
    Court of Appeal of Louisiana, First Circuit.
    May 25, 1982.
    Donald Klein, New Orleans, for plaintiff, appellant.
    Richard Muller, Mandeville, for defendant, appellant.
    Before COVINGTON, COLE and WATKINS, JJ.
   COVINGTON, Judge.

This is a devolutive appeal by Philip A. Petersen, plaintiff, from a judgment of the trial court signed on September 14,1981, in which plaintiff’s petition for a writ of mandamus against the Town of Abita Springs, through its Mayor and Board of Aldermen, was denied. The mandamus sought a permit to complete the construction of a certain building located at Lot 2, Square 38 in the Town of Abita Springs, Parish of St. Tammany, Louisiana, together with any necessary licenses in connection therewith. The town has answered the appeal, seeking recovery of attorney’s fees incurred in the defense of this matter.

The chronology of events giving rise to this matter are, for the most part, undisputed. This chronology is as follows:

DATE
EVENT
February 18,1976
Summer, 1979
September 4,1979
October 12,1979
October 31,1979
January 22,1980
February 27,1980.
The plaintiff obtains a building permit required under the Flood Hazard Insurance Ordinance.
Extensive advertising and personal appearances by the Abita Springs zoning commissioners advocating adoption of a zoning ordinance establishing zoning districts. Before one of the largest assemblies of Abita Springs citizens ever gathered in the Abita Springs Town Hall, a public hearing is held regarding adoption of the zoning ordinance. The Mayor and Board of Aldermen meet in regular session and adopt the zoning ordinance, thereby imposing restrictions on use of property within the corporate limits of Abita Springs (which has the effect of zoning the Petersen property residential).
Petitioner requests a liquor license and permission to open a lounge in a structure consisting of a perimeter of concrete blocks without interior walls, roof, or utilities. The Town Clerk advises that such use is prohibited under the zoning ordinance and further advises plaintiff that he must take the matter up with the zoning commission. Plaintiff appears at the zoning commission meeting and requests permission to put in an amusement center serving liquor on the premises. Mr. Petersen was advised that the commission was not in favor of such a development but he could file for a variance.
Plaintiff files written request acknowledging that his building is not complete but requesting that he be allowed to use it for the stated purpose.
A public hearing is held by the zoning committee relative to plaintiff’s application to conduct a business selling liquor. At the hearing, the Chairman, Mr. Biitch, advised Mr. Petersen that a commercial operation such as a feedstore or other such facility as was originally contemplated could be a service to the people of the area. Mr. Petersen insisted on using the premises to sell liquor. The residents of Brooks Forest Road and adjoining residential properties protest the use of the premises for the purpose expressed by Mr. Petersen. The Chief of Police, Mr. Treadway, speaks against the use of the premises for the sale of liquor because of the narrow road and
DATE
March 4,1980
March, 1980 March 26,1980
April 30,1980 May 6,1980
May 28,1980
June 25,1980
August 5,1980
September 5,1980 February 4,1981
EVENT
dangerous curves. (The minutes contain numerous other expressed reasons against a lounge-type commercial operation.) Mr. Petersen insists on the use requested. The zoning commission then votes to deny the variance.
Mr. Petersen appears at the Town Council meeting and verbally requests a zoning change. He is advised to proceed in accordance with the procedure established in the zoning ordinance.
Mr. Petersen files petition requesting zoning change.
Mr. Petersen attends planning and zoning meeting and withdraws petition to amend zoning ordinance.
Petitioner again requests an amendment to the zoning ordinance.
The Mayor and Board of Aldermen receive the petition for amendment of the zoning ordinance filed by Mr. Petersen and forward it to the zoning commission.
The petition is reviewed by the zoning commission and a public hearing scheduled for June 25,1980.
The zoning commission holds a public hearing at which the Town Attorney explains in advance of any discussion what points must be made in order to avoid prohibited spot zoning. Following the Town Attorney’s presentation, Mr. Petersen speaks in favor of his refused requested change but refuses to state his intended commercial use. The zoning commission finding, among other things, that there has been no showing that the proposed change would benefit the public as a whole, votes to recommend against the change.
The Town Council has a special hearing and public meeting to consider Mr. Petersen’s requested zoning change. After the public hearing, the Council votes to uphold the decision of the zoning commission and denies the change.
Mr. Petersen’s building remains structurally uncompleted.
Petitioner files Writ of Mandamus in 22nd Judicial District Court requesting the issuance of a permit to complete the building and for all other appropriate licenses.

The record thus reflects that on February 18, 1976, Philip A. Petersen applied for a building permit to construct a new building on Lot 2, Square 38 of the Town of Abita Springs. The application generally described the building to be built and stated its intended use: “bottom as store facilities— top for apartments” (emphasis added). The permit, signed by the then Mayor, Edwin S. Peters, Jr., was issued that same date. At the time of the issuance of the building permit, the town had no zoning ordinance governing land use.

On September 4, 1979, the town adopted a zoning ordinance, which had the effect of zoning the Petersen property “residential.”

On October 12,1979, Petersen applied for a liquor license and permission to open a lounge (a different use from the original permit) in the subject building, which was still incomplete and not being used, although some three and one-half years had elapsed since the issuance of the building permit. The Town Clerk advised Petersen of the zoning ordinance and informed him that the procedure set forth in the ordinance would have to be followed. On October 31, 1979, Petersen’s request to the zoning commission for permission to use the building for commercial uses was denied. The plaintiff then applied to the zoning commission, pursuant to the zoning ordinance, for a variance to use the property for commercial purposes, which was denied on February 27,1980. Thereafter, plaintiff requested a zoning change in the zoning ordinance in order to classify his property as commercial, which request was denied by the zoning commission on June 25, 1980. Subsequently, on August 5, 1980, Petersen appeared before the Town Council (Board of Aldermen) after the zoning commission meeting, seeking a zoning change from that body. The council upheld the decision of the commission and denied the requested zoning change.

First, the appellant contends that the provisions of the Abita Springs Zoning Ordinance are not applicable to him or to his property, because of the prior issuance of a building permit to him. In support of this assertion, Petersen cites the case of State ex rel. Fitzmaurice v. Clay, 208 La. 443, 23 So.2d 177 (1945). The facts of the Clay case are distinguishable from the instant case before the Court. In Clay there was no zoning ordinance in force at the time of the application for the requested permit; while in the present case, the Abita Springs Zoning Ordinance had been adopted and was in effect at the time Petersen requested the issuance of a liquor license and permit for a lounge. Magness v. Caddo Parish Police Jury, 318 So.2d 117 (La.App. 2 Cir. 1975), is another case where the nonconforming use was commenced prior to the effectiveness of the particular zoning ordinance. Such is not the situation in the case before the Court.

Petersen obtained his building permit on February 18, 1976. The structure contemplated under this permit was described as a two-story building for the stated use of a store facility and apartments. After receiving the permit, Petersen proceeded to construct a single-story cinderblock building. Three and one-half years later, when the Zoning Ordinance was enacted, this single-story building had not yet been completed. Five years after the issuance of the permit, at the time Petersen sought the writ of mandamus, no further construction progress had been made. At the hearing of this matter on February 23, 1981, Petersen conceded that the building had not been completed, and admitted that for many years during this period of time no work was done toward its completion. It, of course, had not been used for any purpose.

As shown by the stated facts, the instant case is also distinguishable from City of Crowley v. Prejean, 173 So.2d 832 (La.App. 3 Cir. 1965). In that case the landowner established a nonconforming use before the effective date of the zoning ordinance. No additional construction was required beyond the crucial date, and the full extent of the trailer park (a nonconforming use in a residential area) was well defined at that time.

Section 9-210 of the Abita Springs Zoning Ordinance reads:

“The lawful use of any building, structure, or land existing at the time of the enactment of this chapter may be continued, although the use does not conform with the provisions of this chapter... . ”

The wording of this section of the Abita Springs Zoning Ordinance requires actual lawful use of a building, structure or land in order to establish a nonconforming use. A building under construction for the intended purpose of a commercial store does not satisfy such a requirement.

It is settled that the mere intention to use a parcel of land for commercial activity does not constitute a non-conforming use. Deshotel v. Calcasieu Parish Police Jury, 323 So.2d 155 (La.App. 3 Cir. 1975), writ denied, 326 So.2d 371 (La.1976). In that case, the Court found that the landowner had established a nonconforming use where a building permit had been obtained prior to the enactment of a zoning ordinance. However, the Court pointed out that its decision was based on the fact that the building had been completed prior to the enactment of the zoning regulations.

The record establishes that the plaintiff has never used the land or building in question for any purpose inconsistent with a residential zoning classification. We thus hold that Petersen has not established a nonconforming use, and is not entitled to operate a commercial facility, i.e., a barroom or lounge at that location. The writ of mandamus was property denied.

The appellee argues that the trial court erred in denying it attorney’s fees pursuant to LSA-R.S. 42:261 E, which provides:

“Any party who files suit against any duly elected or appointed public official of this state of [sic] any of its agencies or political subdivisions for any matter arising out of the performance of the duties of his office other than matters pertaining to the collection and payment of taxes and those cases where the plaintiff is seeking to compel the defendant to comply with and apply the laws of this state relative to the registration of voters, and who is unsuccessful in his demands, shall be liable to said public official for all attorneys fees incurred by said public official in the defense of said lawsuit or lawsuits, which attorneys fees shall be fixed by the court. ^
“The defendant public official shall have the right, by rule, to require the plaintiff to furnish bond as in the case of bond for cost, to cover such attorneys fees before proceeding with the trial of said cause.”

This action for mandamus was filed by Philip Petersen against the Town of Abita Springs. It was not instituted against the town officials for a matter arising out of the performance of duties of their offices. They were not named individually as parties defendant; at most they were merely nominal parties. The judgment rendered by Judge Crain in this matter properly rejected the claim of the public officials for attorney’s fees. See Brown v. Aetna Life & Casualty Ins. Co., 394 So.2d 290 (La.App. 3 Cir. 1980).

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

AFFIRMED.


author: LOTTINGER, Judge.

text:
    MILLETTE ENTERPRISES, INC. and Herman W. Bartels v. STATE of Louisiana Through the DIVISION OF ADMINISTRATION AND the BOARD OF TRUSTEES OF the STATE EMPLOYEES GROUP BENEFITS PROGRAM, and Continental National Assurance Co.
    No. 14876.
    Court of Appeal of Louisiana, First Circuit.
    May 25, 1982.
    Writ Denied July 2,1982.

      Michael S. Fawer, New Orleans, and Michael S. Baer, III, Douglas C. Ellis, Baton Rouge, for plaintiffs-appellants Millette Enterprises, Inc. and Herman W. Bartels.
    Thomas McFerrin, Stevens J. White, Baton Rouge, for defendant-appellee Div. of Admin.
    Tommy D. Teague, Baton Rouge, for defendant-appellee Bd. of Trustees, State Employees Group Benefits Program.
    Carlos G. Spaht, Paul H. Spaht, Baton Rouge, for defendant-appellee Continental Assur. Co.
    Ernest L. Johnson, Baton Rouge, for defendant-intervenor-appellee Will Belton and Associates, Inc.
    Before LOTTINGER, EDWARDS and SHORTESS, JJ.
   LOTTINGER, Judge.

This is a suit by Millette Enterprises, Inc., a prospective bidder on a contract to provide insurance claims processing services, and Herman W. Bartels, a citizen and taxpayer of Louisiana, against the State through the Division of Administration and the Board of Trustees of the State Employees Group Benefits Program (Board). Also made a party defendant is Continental Assurance Company (CNA), sued erroneously as Continental National Assurance Company. The suit originally sought a temporary restraining order, preliminary and permanent injunctions, mandamus and declaratory judgment. It was amended to seek monetary damages, penalties, and attorney’s fees. Prom a judgment sustaining peremptory exceptions of no cause of action, plaintiffs have appealed.

FACTS

This suit arose when the Board sent out invitations to bid on a contract for insurance claims processing services. Two companies responded, plaintiff Millette Enterprises and defendant CNA. CNA was the company who had previously provided the claims administration services. At the first bid opening, Millette was the low bidder. The Board decided to refuse all bids and issue a second invitation. The second invitation differed from the first as to qualifications of prospective bidders. The first invitation required that bidders have five years experience in claims administration and currently provide claims processing services to at least one employer-sponsored client with a group size of 10,000 covered employees. The second invitation differed in that it required that bidders be currently providing processing services to one self-insured or self-funded medical expense benefit plan of 10,000 employees (as opposed to an employer-sponsored plan).

The Board received bids on the second invitation from Millette, CNA, and two others. Millette was the lowest bidder and CNA the-highest. However, only CNA of the four bidders had experience with a self-insured benefits plan. The other three bidders, including Millette, had experience only in employer-sponsored programs. For this reason, the Board awarded the contract to

CNA on November 24, 1980. Millette sent a letter of protest December 3, 1980, because it was the low bidder. The Board responded two days later by telling Millette that it had not met bid specifications.

Before the contract could be signed, Mil-lette and Bartels brought suit seeking a temporary restraining order, preliminary and permanent injunctions, mandamus and declaratory judgment. Millette alleged that it was denied due process because its bid on the first invitation was refused without allowing it to defend its fiscal responsibility. The first bid invitation was issued November 6,1979, and the second invitation was issued on September 25, 1980. Plaintiffs contend that the new Procurement Code, La.R.S. 39:1551 et seq., came into effect on July 1, 1980, and therefore the second invitation to bid issued by the Board was illegal because the authority to issue bids under the Procurement Code is given to a “central purchasing agency.” Plaintiffs further contend that the requirement that bidders be currently providing processing services to a self-insured or self-funded expense benefit plan was arbitrary and capricious, and was imposed for the purpose of creating a “closed specification” that excluded all bidders except CNA. Plaintiffs finally contend that these bids had been discussed in a private meeting of the Board’s administrative committee, and that this meeting contravened La.R.S. 42:4.1 et seq., the “Open Meetings Law.”

The instant suit was filed on December 19,1980, and a temporary restraining order was issued the same day. Testimony relative to a preliminary injunction was received on December 29, 1980, and on December 30, the Board resolved to offer no opposition to the request for a preliminary injunction enjoining the signing of the contract between the Board and CNA. The Board further resolved to handle the claims administration duties itself, rather than give the job to CNA or Millette. The preliminary injunction issued on January 5, 1981.

Plaintiffs subsequently supplemented their petition to assert a claim for money damages, alleging bad faith in the actions taken by the Board in connection with the solicitation and selection of bids.

CNA and the State through the Board of Trustees filed the dilatory exception of prematurity and vagueness and the peremptory exception of no cause of action in response to plaintiff’s original petition for injunctive relief. CNA and the State then filed the peremptory exception of no cause of action in response to plaintiffs’ supplemental and amending petition seeking monetary damages, penalties and attorney’s fees. It is from the judgment sustaining the exceptions of no cause of action that plaintiffs have appealed.

SPECIFICATIONS OF ERROR

The plaintiffs-appellants allege that the trial court erred in maintaining the exceptions of no cause of action since the law provides for a cause of action in eases such as this under tort law (La.Giv.Code art. 2315), as well as specific statutory provisions for monetary damages under the Louisiana Procurement Code (La.R.S. 39:1551 et seq.) and the “Open Meetings Law” (La. R.S. 42:4.1 et seq.).

I

It must first be noted that this case is before the court on a peremptory exception of no cause of action. A no cause of action exception raises the issue of whether the law grants a remedy to anyone for the particular harm alleged by the petition. When the exception of no cause of action is raised, all the allegations of the petition are accepted as true and no evidence is admissible to support or defeat the exception. Gustin v. Shows, 377 So.2d 1325 (La.App. 1st Cir. 1979); Bamber Contractors, Inc. v. Henderson Brothers, Inc., 345 So.2d 1212 (La.App. 1st Cir. 1977).

II

The allegations of plaintiffs’ petitions can be summarized as follows: invitations for bids were issued and plaintiff was the low bidder, but both bids were rejected and plaintiff was not given an opportunity to defend its fiscal ability to perform; new bids were invited with different specifications than the original invitation, and again plaintiff was the low bidder; plaintiff protested the difference in the specifications as being a “closed specification” without a meaningful distinction; the bids of plaintiff and the other bidders, except for CNA, were rejected as not being responsive to the invitations; the decision to reject the second bids was made in a closed meeting; the second bid invitation was issued by the Board rather than the central purchasing agency in violation of the Louisiana Procurement Code and contained a closed specification in violation of La.R.S. 38:2294; the Board at a previous court hearing was unable to show any difference between the specification in the first and second invitations; the awarding of the contract to CNA was arbitrary and capricious; the action of the Board was taken solely for the purpose of avoiding having to award the contract for claims administration to Millette; and the action of the Board was taken in bad faith.

Plaintiffs-appellants contend that accepting these allegations as true, they have alleged a cause of action for injunction and/or damages under Louisiana tort law, the Louisiana Procurement Code, and under the Open Meetings Law.

In essence what plaintiffs allege is that the entire activity of the Board in inviting bids from the first instance onward demonstrates a bad faith design on the part of the Board to award the administration services contract to no other bidder than CNA, and in the absence of CNA being the successful bidder, to take upon itself the administration of the health insurance program. Further, plaintiffs contend that the Board has a duty to act fairly and not in an arbitrary, capricious and bad-faith manner, and to do otherwise was a breach of that duty under La.Civ.Code art. 2315. Because of the breach of this duty, Millette alleges it has suffered certain monetary damages.

The resolution of the issues of whether the Board was required to allow Millette to defend its fiscal responsibility after the rejection of the first bids, whether there was a “closed specification” in the second bid invitation, whether there was a closed meeting, and whether the second invitation should have been issued by the central purchasing agency rather than the Board is really of no moment. Such allegations are important at this stage of the proceedings only to that extent to which they may state a cause of action.

Ill

We are of the opinion that when the allegations of the original and supplemental and amending petitions are taken as true, as they must be, then the plaintiffs have stated a cause of action.

The statutory law requiring that all public work done by a public entity shall be advertised and let by contract to the lowest responsible bidder was enacted in the interest of the taxpaying citizens and has for its purpose their protection against contracts of public officials entered into because of favoritism and possibly involving exorbitant and extortionate prices. Haughton Elevator Division v. State, Division of Administration, 367 So.2d 1161 (La.1979). The general law can impose no less duty on the public entity or agency than that it conduct the public’s business in a fair, unar-bitrary and uncapricious manner. La.Civ. Code art. 2315 imposes the general rule that he whose fault causes damage to another is obliged to repair it. This principle has been recognized by the Legislature in adopting the Louisiana Procurement Code, and in particular La.R.S. 39:1553, which provides: “A. Supplementary general principles of law applicable.

“To the extent not inconsistent with the particular provisions of this Chapter, the principles of Louisiana law shall supplement its provisions.
“B. Obligation of good faith.
“Every contract or duty within this Chapter imposes an obligation of good faith in its performance or enforcement. ‘Good faith’ means honesty in fact in the conduct or transaction concerned and the observance of reasonable commercial standards of fair dealings.”

The public entity or agency can no more invite bids for the furnishing of services, or the purchase of materials and supplies, when its design and intent is to declare a predetermined bidder as successful or else reject all bids, than it can award a contract without fulfilling the requirements of the law.

Stated another way, plaintiffs allege that the Board was determined to award the services contract to CNA, that the first bids were rejected because CNA was not the low bidder, and the Board rewrote the specifications in an attempt to limit the probable bidders, and then, after having awarded the contract to CNA from the second bids, the Board acquiesced in the issuance of a preliminary injunction. If all the allegations of the petitions are proven, then by design and predetermination the Board has caused Millette to expend time, effort and money in preparing bids when there was never any chance of Millette being awarded the contract. If true and if proven, is this acting fairly and in the best interest of the public? We think not, and therefore hold that a cause of action has been stated.

IV

The Board filed the dilatory exception of prematurity arguing that plaintiffs failed to exhaust their administrative remedies. Specifically the Board refers to the administrative remedies for “pre-litigation resolution of controversies” found in La. R.S. 39:1671 et seq. However, La.R.S. 39:1671 A contains permissive rather than mandatory language because it provides that “any person . . . aggrieved . .. may protest to the chief procurement officer.” There is no indication in the statutory scheme that the legislature intended the administrative remedy as a prerequisite to a judicial resolution of the controversy. Therefore, the dilatory exception is without merit.

Y

CNA also filed the peremptory exception of no cause of action which was maintained by the trial court in its judgment. Plaintiffs have not complained of this ruling, therefore same is affirmed.

Therefore, for the above and foregoing reasons, the judgment of the trial court insofar as it maintained the peremptory exception of no cause of action for and on behalf of the State of Louisiana through the Board of Trustees of the State Employees Group Benefits Program is reversed, and in all other respects, the judgment of the trial court is affirmed and this matter is remanded for further proceedings consistent with the views expressed hereinabove. Costs of this appeal in the amount of $1,124.01 are assessed to the Board.

REVERSED IN PART, AFFIRMED IN PART, AND REMANDED.

      . The Division of Administration was dismissed on a peremptory exception of no cause of action and is not a party to this appeal.


author: KLIEBERT, Judge. BOUTALL, Judge,

text:
    Gregory J. CLAYTON v. M. G. HOLDER.
    No. 5-5.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 25, 1982.
    Paul L. Billingsley, Luling, for plaintiff-appellant.
    Leon C. Vial, III, Hahnville, for defendant-appellee.
    Before BOUTALL, CHEHARDY and KLIEBERT, JJ.
   KLIEBERT, Judge.

This is a devolutive appeal by the plaintiff from the trial judge’s refusal to make executory judgments of the Circuit Court in Hot Springs, Arkansas in amounts of $14,-786.64 and $578.75.

The defendant, M. G. Holder gave Harold and Vera Verser his unsecured note in the amount of $12,000.00 as the down payment on the purchase of a house and lot in Hot Springs, Arkansas. The balance of the purchase price was a note given to First Federal Savings and Loan, secured by mortgage on the house and lot. Holder then sold the house and lot to Gregory J. Clayton who assumed the mortgage note. Several months later, Clayton acquired from the then holder the $12,000.00 promissory note given by Holder for the down payment.

As the then holder of the note, Clayton sued Holder, then a Louisiana resident, in an Arkansas Court on the note and obtained a judgment against him for $14,786.64. Additionally, Clayton sued for and obtained a default judgment in the amount of $578.75 for delinquent ad valorem taxes assessed against the property while Holder was the record owner, which Clayton had paid. Clayton sought to have both judgments made executory in St. Charles Parish.

In the St. Charles Parish proceeding, Holder filed a general denial and reconven-tional demand. In essence, his pleading in the Louisiana trial court set up a defense grounded in the contention the Arkansas court did not have jurisdiction over him at the time it rendered the judgments against him.

The trial judge made the following fact findings: the debts resulted from transactions in Arkansas; pursuant to the requirements of the Uniform Service Act, Holder was given required notice by a deputy sheriff in St. Charles Parish and Holder was in fact represented by an attorney in the Arkansas proceedings. For those reasons, the trial judge concluded the Arkansas court did have jurisdiction over Holder at the time the judgments were rendered and hence concluded the judgments were valid Arkansas judgments. However, he refused to make the judgments executory in Louisiana for the reasons which follow:

During the course of the hearing, evidence was introduced to show the house had originally been purchased by Holder for Clayton as part of an overall settlement agreement. According to the written settlement agreement, Clayton had relieved Holder “of any and all obligations due me [Holder] from this date forward”. According to Holder the agreement with Clayton was to settle all of their affairs arising out of the development of a shopping center in Arkansas. Although purchased in his name, Holder contended the house was purchased for Clayton as part of the settlement agreement. The settlement agreement was dated February 14, 1978. Clayton paid the delinquent taxes on November 2, 1978 and was assigned the unsecured note on September 28, 1979. Since the note and taxes were not indebtednesses owed to him at the time the release was executed, Clayton, in the trial court, contended the indebtedness for the note and unpaid taxes were not covered by the settlement release he executed for Clayton.

Following the hearing the trial judge concluded the release granted by Clayton to Holder barred further action on the Arkansas judgment. Therefore, he refused to make the judgments executory and ordered their inscription in the mortgage records cancelled.

In his brief in this appeal, counsel for Clayton states “the release which was introduced in the Louisiana Court would have constituted an affirmative defense in the Arkansas Court”. However, he argues the burden was on Clayton to raise the defense and having failed to do so, Clayton cannot now use the release to collaterally attack the Arkansas judgments. Correctly, he argues a Louisiana Court must, under Article 4, Section 1 of the United States Constitution, give full faith and credit to the valid judgment of another state. However, Courts of this State have consistently and repeatedly recognized and permitted collateral attacks on foreign judgments where the rendering state would have permitted such an attack. In West v. Lawrence, 297 So.2d 448 (3rd Cir. 1974), at page 445, the principal is explicitly set forth as follows:

“... Louisiana courts have recognized that extrinsic fraud (such fraud as would prevent prosecution of an effective defense or would prevent an adversary trial of the issues) may be asserted as a bar to recognition of the foreign judgment, while intrinsic fraud (such fraud as would simply amount to an affirmative defense to the original cause of action) would not serve as a defense to the recognition of a foreign judgment.. . . ”

In the past, the courts of Arkansas have granted equitable relief from a judgment for extrinsic fraud and allow a collateral attack on the judgment to prove it. See Liebendorfer v. Gayle, 217 So.2d 37 (3rd Cir. 1968).

In his reasons for judgment, the trial judge made the following statement: “The court will not comment on the failure of the defendant to present this defense [i.e., the release executed by Clayton] in the Arkansas Court”. We note, however, that the attorney who represented Holder in the Arkansas proceeding was not admitted to practice in Arkansas and according to Clayton’s attorney was unfamiliar with the Arkansas procedures. Although the attorney for Holder had filed an answer in the suit on the note, Clayton’s attorney was able to obtain the judgment by default. This was accomplished by use of an Arkansas procedural statute dealing with written obligations. Under the statutes, plaintiff’s attorney files a motion to strike the answer with a verified affidavit of no defense. If opposing counsel fails to file a counter acting affidavit setting out a defense, the motion to strike is granted and a default judgment may then be obtained. Whether Holder’s Arkansas attorney failed to respond to the motion to strike due to lack of familiarity or out of lack of diligence or out of design is not shown by the record, but clearly, his inaction effectively prevented Holder a valid defense against the claim, i.e., the release, from being presented to the Arkansas Court. Until the effort to enforce collection was made, Holder was unaware judgments had been rendered against him by the Arkansas court. Both Clayton and his attorney admitted in the Louisiana proceeding the house had been purchased for Clayton as part of a settlement agreement and for which he had executed a release.

Although the release was a valid defense to Clayton’s claims, the Arkansas judgments would be entitled to full faith and credit in the Louisiana Courts, unless under Arkansas law the judgments could be set aside for ill practice or as a nullity due to the failure of the person representing Holder in the Arkansas suit from presenting his valid defense. Although there is evidence indicating that the person representing Holder was aware of Holder’s valid defense there is evidence indicating he was not admitted to practice in Arkansas and was unfamiliar with Arkansas procedures. However, there is nothing to indicate why, unbeknown to Holder, he allowed the judgment to be rendered by default. Nor is there evidence in the record from which a determination can be made as to whether his unlawful representation of Holder, which resulted in a loss to Holder, would constitute an extrinsic fraud under Arkansas law. Were it not for the fact the person representing Holder was not admitted to the Arkansas bar, we would readily reverse the trial judge and make the Arkansas judgments executory. However, since making the judgments executory may compound a fraud or injustice previously committed on Holder, in the interest of justice, we set the judgments aside but remand the case to the trial judge for the purpose of taking evidence as to why the person representing Holder failed to present his valid defense and whether under Arkansas law that reason constituted extrinsic fraud. Unless such evidence satisfactory to the trial judge is presented, the Arkansas judgments are to be made executory by him.

Each party to bear his own cost of the appeal.

SET ASIDE AND REMANDED.

BOUTALL, J., dissenting with written reasons.

BOUTALL, Judge,

dissenting.

I respectfully dissent being of the opinion that the special defense of release between the parties is not a permissible defense in these proceedings but constitutes a special defense which could have been raised on the trial in Arkansas. In fact Holder filed an answer in the Arkansas court alleging among other things an affirmative plea that the claim was released by the February 14, 1978, release. The plea was not considered in the Arkansas case because of procedural difficulty.

In the Arkansas case, the plaintiff had filed a motion to strike the answer based upon his having previously filed an affidavit of no defense to which Holder had filed no counter affidavit as required by law. The judge mailed a notice of hearing to Holder’s attorney who did not appear thus permitting the answer to be struck by default and a default judgment to be entered against Holder. The trial judge in the District Court for the Parish of St. Charles found that the judgment of the Arkansas court is a good and valid judgment, and I agree. The majority opinion gives Holder a second chance to defend on the merits after he failed to do so in Arkansas.


author: SCHOTT, Judge. PER CURIAM.

text:
    Eddie WILLIAMS and Judy Williams v. Dr. R. Royce SISTRUNK.
    No. 12976.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 8, 1982.
    Rehearing Denied Aug. 3, 1982.
    John S. Keller, New Orleans, for plaintiffs-appellants.

      Truman Woodward, Jr., James K. Irvin, George B. Jurgens, III, Milling, Benson, Woodward, Hillyer, Pierson & Miller, New Orleans, for defendant-appellee.
    Before REDMANN, SCHOTT and KLEES, JJ.
   SCHOTT, Judge.

Mr. and Mrs. Williams brought this action against Dr. Sistrunk for damages for an alleged violation of the patient-physician privilege of communication. The trial court maintained defendant’s exception of no cause of action, based upon LSA-R.S. 13:3734, and dismissed the petition. Plaintiffs appealed. The issue is whether plaintiffs have stated a cause of action.

Only the petition and attached documents may be considered on an exception of no cause of action, and all well-pleaded facts are taken as true. No evidence may be admitted to support or controvert the exception. The exception must be overruled unless the allegations affirmatively establish that the plaintiff does not have a cause of action under any facts admissible under the allegations of the petition. LSA C.C.P. Art. 927(4); Wheelahan v. State, 376 So.2d 576 (La.App. 4th Cir. 1979).

In their petition plaintiffs allege as follows: They filed a complaint with the Commissioner of Insurance of the State of Louisiana against Southern Baptist Hospital and a medical malpractice panel was convened; in connection with that matter plaintiffs scheduled the deposition of Dr. Sistrunk, Mrs. Williams’ doctor; counsel for Southern Baptist Hospital then obtained Mrs. Williams’ entire medical records from Dr. Sis-trunk, without her consent; and their privacy had been invaded, in direct conflict with R.S. 13:3734(B), by the release of the medical records. Defendant contends that the statute excepts his actions from the privilege.

R.S. 13:3734(B) provides that a patient has a privilege to prevent a doctor from disclosing medical information relating to his treatment. The statute then provides exceptions to the privilege of which subsections (C)(3) and (5) are relevant:

“(3) If any person brings an action to recover damages, in tort or for workmen’s compensation under federal or state laws, for personal injuries, such action shall be deemed to constitute a consent by the person bringing such action that any health care provider who has attended such person at any time may disclose any communication which was necessary to enable him to diagnose, treat, prescribe or act for said patient.” “(5) If any health care provider reasonably believes in good faith that any legal proceeding enumerated in Paragraphs (3) or (4) under this Subsection, has or may be instituted for or on behalf of said patient, such health care provider may disclose any communication acquired by him which was necessary to enable him to diagnose, treat, prescribe or act for said patient.”

These two exceptions apply to the facts as alleged in the plaintiffs’ petition. Plaintiffs have not stated a cause of action because the release of the medical records was excepted from the privilege. Plaintiffs have not alleged that any of the disclosed communications were unnecessary to the treatment of the patient, nor have they alleged that the records included any irrelevant or damaging information. The legislature, in enacting R.S. 13:3734, could not have intended to exempt unrelated information from the privilege. In an analogous situation, the court stated in Acosta v. Cary, 365 So.2d 4 (La.App. 4th Cir. 1978). “However, the employee’s waiver of privacy is necessarily implied only to the extent pertinent to the employer’s defense; an employee claiming for a broken leg does not waive privacy as to his gastro-intestinal upsets.” That principle is applicable to R.S. 13:3734.

Even though plaintiffs have not stated a cause of action they are entitled to amend their petition, because by amendment the plaintiffs may be able to remove the grounds of the objection pleaded by the exception of no cause of action. C.C.P. Art. 934.

Accordingly, that portion of the judgment sustaining the exception of no cause of action is affirmed but that portion dismissing plaintiffs’ suit is reversed and set aside. The case is remanded to the trial court to allow plaintiffs to amend their petition in accordance with C.C.P. Art. 984. The costs of this appeal are taxed against defendant. The taxing of other costs is to be made at the conclusion of the case.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

ON REHEARING

Before REDMANN, SCHOTT and KLEES, JJ.

PER CURIAM.

In their application for rehearing plaintiffs for the first time argue that R.S. 13:3734 has no application to the facts as alleged in plaintiffs’ petition because the exceptions provided by § 3734(C)(3) and (5) to § 3734 B’s privilege extend only to testimony at trial or deposition under § 3734(D).

If the disclosed information obtained at the deposition proves to be relevant defendant may testify to it at his deposition, and, as a practical matter, no damage will have been suffered by plaintiff for the premature disclosure of such information to the hospital’s attorney prior to the deposition.

On the other hand, if the disclosed information is irrelevant plaintiffs have a cause of action for violation of the privilege without regard to the taking of any deposition or testimony at trial.

The application for rehearing is denied.

APPLICATION DENIED.


author: KLEES, Judge.

text:
    Patricia PURCELL v. STATE FARM INSURANCE COMPANY, Harold Rentrop and Joseph Rentrop.
    No. 12799.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 9, 1982.

      Gerard G. Metzger, DeBlieux & Hurder, Baton Rouge, for plaintiff-appellant.
    Burt K. Carnahan, Lobman & Carnahan, Metairie, for defendants-appellees.
    Before SCHOTT, KLEES and WARD, JJ.
   KLEES, Judge.

On December 29, 1978, the plaintiff-appellant was driving her vehicle on Canal Street when she entered the intersection of Canal and Claiborne Avenue. Upon entering the intersection her vehicle was struck on the left side by an automobile being driven by the defendant, Joseph Rentrop, who had entered the intersection on a red traffic signal. The plaintiff filed suit for damages and was awarded $10,000 after a trial on the merits. Since the trial court ordered both parties to pay their own costs the amount of the award reflecting general damages for pain and suffering amounted to $7,375.00.

The appellant argues that the award for pain and suffering was so low that it amounts to an abuse of discretion. She also argues that the trial court erred by refusing to provide an award for lost wages and by ordering both parties to bear their own costs.

Before a trial court award may be questioned as inadequate or excessive, the reviewing court must look first, not to prior awards, but to the individual circumstances of the present case. Only after analysis of the facts and circumstances peculiar to this case and this individual, may a reviewing court determine that an award is inadequate. Reck v. Stevens, 373 So.2d 498 (La. 1977).

This particular plaintiff, a twenty-seven year old registered nurse, was taken to Mercy Hospital from the scene of the accident where she remained overnight for general observation. Five days later she was examined by her family doctor, Dr. Santo Lococo, who stated that he could find no objective symptoms but based upon subjective complaints was able to diagnose the patient’s problems as an acute cervical strain. After this examination the plaintiff returned to work but after two days on the job she felt that she was incapable of working due to headaches and pain she experienced while lifting objects.

On January 9, 1979 the plaintiff referred herself to a neurologist, Dr. Maria Palmer, who could find no neurological disorder. However, Dr. Palmer did notice limitation in the motion of her neck and muscle spasms. Dr. Palmer saw the plaintiff on a number of occasions between January, 1979 and March, 1980 but not between March and September, 1979. The visit in March, 1980 was precipitated by an accident she had on her job. She continued to complain of weakness and numbness in her arms and hands. Dr. Palmer cited as the reason for her lengthy recovery the radical thyroid surgery she had undergone in 1969 which left a degree of scar tissue and weakened the muscles in her neck. Dr. Palmer’s final diagnosis for the plaintiff was chronic cervical sprain with soft tissue injury.

On May 1,1979, while she was seeing Dr. Palmer, the plaintiff referred herself to Dr. Richard Paddison. The plaintiff submitted to a number of tests but because of inconsistent results and her failure to return for a scheduled appointment he was unable to diagnose her problems.

Finally, Dr. Richard Levy examined the plaintiff on June 25, 1979 at the request of the defendant insurer. He observed no objective findings and felt that she was capable of returning to work.

Our review of the facts and circumstances peculiar to this plaintiff and this case lead us to believe that the plaintiff was suffering from an acute cervical strain with soft tissue injury. Given the nature of her injuries and additionally considering the effect that the prior thyroid surgery had on her recovery we are unable to conclude that $7,375 in general damages is so inadequate as to amount to an abuse of discretion.

The plaintiff argues that she should have been provided with an award for lost wages. Whether she was incapable of working is a question of fact to be decided by the trial judge. After hearing the testimony of the doctors and that of the plaintiff he concluded that the plaintiff was not entitled to an award for lost wages.

After a careful review of the record we can find nothing which would indicate that the trial judge’s decision to deny an award for lost wages is manifestly erroneous. Canter v. Koehring Co., 283 So.2d 716 (La.1973).

Finally, the plaintiff asserts that the trial judge erred when he ordered both parties to bear their own costs, C.C.P. Art. 1920:

Unless the judgment provides otherwise, costs shall be paid by the party cast, and may be taxed by a rule to show cause. Except as otherwise provided by law, the court may render judgment for costs, or any part thereof, against any party, as it may consider equitable.

Although the general rule is to tax the party cast in judgment the trial judge has wide discretion and may assess the costs of the suit in a manner in which he deems is equitable; and his assessment of the costs can only be reversed by an appellate court upon a showing of an abuse of discretion. We can find no such abuse.

Accordingly, the decision of the trial court is affirmed, and costs of the appeal are to be borne by the appellant.

AFFIRMED.


author: JASPER E. JONES, Judge.

text:
    Marie GRUNER, et al., Plaintiff-Appellant, v. CLAIBORNE PARISH POLICE JURY, et al., Defendant-Appellee.
    No. 14922.
    Court of Appeal of Louisiana, Second Circuit.
    June 15, 1982.
    Writ Denied Oct. 1,1982.

      Watson, Murchison, Crews, Arthur & Corkern by Ronald E. Cockren, Jr., Natchi-toches, for plaintiff-appellant.
    Leon H. Whitten, Dist. Atty., Jonesboro, for defendant-appellee.
    Before PRICE, HALL and JASPER E. JONES, JJ.
   JASPER E. JONES, Judge.

This is an action to have an ordinance prohibiting the sale of beverages of high alcoholic content in Ward Four of Claiborne Parish declared a nullity and to enjoin its enforcement.

The plaintiffs are Marie Gruner and Carmen Thornton, both operators of businesses engaged in retail liquor sales. The defendants are the Claiborne Parish Police Jury (hereinafter the “Jury”), the District Attorney for the Second Judicial District, and the Sheriff of Claiborne Parish.

Plaintiffs contend the ordinance should be annulled and its enforcement enjoined because it was adopted pursuant to an illegal local option election. Plaintiffs contend the election was illegal because of 6 alleged irregularities during the election process.

The petition requesting the local option election in Ward 4 of Claiborne Parish was received by the Registrar of Voters on July 13, 1981. The petition and the names of its valid signers were published in The Haynes-ville News on July 23, 1981.

The Registrar filed the petition and a letter stating that the petition had been published, that it contained 91 valid signatures, a sufficient number of the 300 registered voters of Ward 4, and that the earliest signature was dated June 14, 1981, with the Secretary of the Jury on July 28, 1981. The Secretary attached to the petition a statement that it had been received on July 28, 1981.

On August 12, 1981, the Jury adopted a resolution calling a special election in Ward 4 on October 17,1981, for the submission of the following propositions to the voters:

(1) SHALL THE SALE OF BEVERAGES OF LOW ALCOHOLIC CONTENT CONTAINING MORE THAN THREE AND TWO TENTHS PERCENT ALCOHOL BY WEIGHT, AND NOT MORE THAN SIX PERCENT ALCOHOL BY VOLUME BE PERMITTED?
(2) SHALL THE SALE OF BEVERAGES OF HIGH ALCOHOLIC CONTENT, CONTAINING MORE THAN SIX PERCENT ALCOHOL BY VOLUME FOR CONSUMPTION ON THE PREMISES BE PERMITTED?
(3) SHALL THE SALE OF BEVERAGES OF HIGH ALCOHOLIC CONTENT, CONTAINING MORE THAN SIX PERCENT ALCOHOL BY VOLUME BY THE PACKAGE ONLY AND NOT FOR CONSUMPTION ON THE PREMISES BE PERMITTED?

Notice was given “to the qualified voters of Ward 4, Claiborne Parish, Louisiana” that the election would be “held at the polling places now established in Road District Number Four.”

On October 17, 1981, the local option and a school tax election were held. The vote in the local option election was as follows:

Yes No
Proposition #1 86 84
Proposition #2 79 93
Proposition #3 67 95

The Jury promulgated the results of the election on November 11, 1981. On that day the Jury also adopted Ordinance No. 554 prohibiting the sale, possession for sale or consumption on retail business premises of any fluid or solid capable of conversion into a fluid, containing more than 6% alcohol by volume. The penalty clause of the ordinance provides as punishment for its violation of a $100 fine or not more than 30 days imprisonment or both.

The plaintiffs brought this action and obtained temporary restraining orders. On November 30, 1981, the rule for a preliminary injunction was tried and by consent of counsel the entire matter was decided on the evidence adduced on the trial of the rule.

The district judge rendered judgment dismissing plaintiffs’ demands and plaintiffs took this appeal. Plaintiffs set out only one assignment of error on appeal — that the district judge erred in finding the local option election had been conducted in substantial compliance with LSA-R.S. 26:581 et seq. In support of their assignment appellants point to 6 alleged irregularities in the election proceedings:

(1) the resolution calling the election was adopted less than 30 days after the petition was filed with the Jury;

(2) the ballot did not specify the area to which the propositions applied;

(3) the Registrar’s letter of July 28, 1981 contained erroneous information and was not verified;

(4) the ballot also contained a school tax proposition;

(5) the Jury failed to attach a certificate to the petition showing the day, month and year filed; and

(6) the notice of the election was confusing because it indicated that the election would be conducted at the polling places in Road District 4 rather than Ward 4.

Appellants contend that a local option election is invalid if not conducted in substantial compliance with the provisions of LSA-R.S. 26:581 et seq. They vigorously argue that the presence of the above enumerated irregularities, both individually and in combination, means that the election was not conducted in substantial compliance with LSA-R.S. 26:581 et seq.

In the past our courts have determined the validity of local option elections under the substantial compliance test of LSA-R.S. 26:590. See McCrary v. Police Jury of Caddo Parish, 66 So.2d 416 (La.App. 2d Cir. 1953), affirmed 225 La. 489, 73 So.2d 431 (1954); Boddie v. Morehouse Parish Police Jury, 91 So.2d 463 (La.App. 2d Cir. 1956). However, in our view, whether vel non there was substantial compliance must now be determined in light of the provisions of R.S. 18:1401 et seq. of the Election Code.

This court considered a challenge to a local option election in Kelly v. Village of Greenwood, 357 So.2d 1182 (La.App. 2d Cir. 1978). There the local option election had been called for and held on a date not permitted by R.S. 18:402. Recognizing that holding an election on an improper day is not among the causes for voiding an election listed in R.S. 18:1432, this court held that the list was not exclusive and that the election was invalid. Though it is not set out in the opinion we conclude the basis for the holding of the election invalid was that it was not held in substantial compliance with R.S. 26:589 by not being in substantial compliance with R.S. 18:402.

The supreme court granted writs and reversed in Kelly, 363 So.2d 887 (La.1978). The supreme court agreed with this court that the Greenwood governing authority had erred in fixing the election date in violation of R.S. 18:402(F). However, the supreme court then refused to declare the election void, quoting R.S. 18:1401(C):

“A person in interest may bring an action contesting any election in which any proposition is submitted to the voters if he alleges that except for irregularities or fraud in the conduct of an election the result would have been different.”

and then said:

“[I]n order to successfully contest an election, the challenger must not only allege that, except for irregularities or fraud in the conduct of the election, the result would have been different, but must prove that the alleged irregularity or fraud resulted in one or more causes for declaring an election void under La.R.S. 18:1432....”

Under the rule of Kelly one who would attack a local option election must show two things (1) substantial noncompliance in the form of an irregularity of such a nature that without it the result of the election would have been different and (2) that the irregularity resulted in one of the causes listed in R.S. 18:1432.

Here plaintiffs have failed to show even the first requirement for voiding the election. They have neither alleged nor proved that had any or all of the alleged irregularities not occurred the result of the election would have been different. The district judge properly rejected their demands in the absence of such allegations and supporting proof.

This conclusion is supported by the jurisprudence.

In Johnston v. Morehouse Parish Police Jury, 401 So.2d 517 (La.App. 2d Cir. 1981), this court, citing Kelly, recognized that even the violation of a mandatory requirement of R.S. 26:586 is not grounds for voiding a local option election where the error did not affect the result of the election. In Brock v. St. James Parish Council, 400 So.2d 745 (La.App. 4th Cir. 1981), writs denied 400 So.2d 1391 (La.1981), an exception of no cause of action was sustained to a petition attacking a tax election which failed to allege the complained of irregularity caused a different result than would have occurred otherwise.

The judgment is AFFIRMED at appellants’ cost.

      . The record contains evidence that plaintiff Thornton’s business is located in Ward 4 of Claiborne Parish. It is unclear where Gruner’s business is located.

      . Apparently one of the reasons the Jury moved so rapidly in calling the election was to have it held on October 17, a state election day, enabling the Jury to avoid bearing the expense of conducting the local option election.

      . R.S. 26:590 — If the petition fails to substantially comply with the requirements provided in this Chapter or if the other requirements specified in this Chapter for the calling or conduct of the election are not substantially complied with, the election is illegal and ineffective and may be declared null and void by any court of competent jurisdiction at the suit of any elector who was qualified to vote in the election. This suit shall be brought within thirty (30) days of the promulgation of the results of the election.

      . R.S. 18:1432 — “A. If the trial judge in an action contesting an election determines that: (1) it is impossible to determine the result of election, or (2) the number of qualified voters who were denied the right to vote by the election officials was sufficient to change the result in the election, if they had been allowed to vote, or (3) the number of unqualified voters who were allowed to vote by the election officials was sufficient to change the result of the election if they had not been allowed to vote, or (4) a combination of the factors referred to in (2) and (3) herein would have been sufficient to change the result had they not occurred...”

      . R.S. 26:589 — “The elections shall be by secret ballot and shall be conducted as nearly as possible in accordance with the election laws of the state. Where not otherwise provided by this Chapter, or by any other law, the authority calling the election shall provide in the call for the manner in which the election shall be conducted and the result thereof promulgated.

      . It might be contended that the rationale of Kelly is not controlling here because some of the alleged irregularities in this case relate to the way the election was called rather than conducted. Though this argument has a surface appeal, it fails when closely scrutinized in the light of Kelly.

      In its opinion in Kelly this court said “[S]ince this local option election could have been called on Saturday, January 21, 1978, and the Village of Greenwood chose to call an election after January 1, 1978, Greenwood’s failure to call the election on a specified date which was available to it was fatal.” 357 So.2d 1185. The dissent in the supreme court’s opinion in Kelly carefully distinguishes between defects in calling and conducting elections and points out that this case involved the former. Nevertheless, the majority applied R.S. 18:1401(C) and R.S. 18:1432 to the case.
      Considering the dissent and this court’s opinion in Kelly we conclude that a majority of the supreme court intends for the election code to apply to defects in calling elections as well as defects in their conduct.


author: LEAR, Judge.

text:
    COMMUNITY ACCEPTANCE CORPORATION OF DENHAM SPRINGS, INC. v. Tommy Lee KINCHEN, Carolyn Cobb and Michael Cobb.
    No. 14719.
    Court of Appeal of Louisiana, First Circuit.
    June 29, 1982.
    Calvin C. Fayard, Jr., Denham Springs, for plaintiff.
    Michael Cobb, pro se.
    Before LEAR, CARTER and CHIAS-SON, JJ.
   LEAR, Judge.

Plaintiff-appellant, Community Acceptance Corp. of Denham Springs, Inc. (Community), a finance and loan company, filed suit against three individual defendants as co-makers of a promissory note. Only a few payments were made on the note, and after default, Community rebated unearned interest in the amount of $73.86 and sued the co-makers for the balance due on the account in the amount of $1,322.00, plus 28.5% interest from December 12, 1978 (the annual percentage rate of interest stated in the note from the date of its execution), and 25% additional attorneys fees. After a trial on the merits, the court found that plaintiff had violated certain provisions of LSA-R.S. 9:3510, et seq. (the Louisiana Consumer Credit Law) and that the transaction was an overreaching by plaintiff. The court further found, as a matter of law, that the agreement sued upon is unconscionable, and under the express provisions of R.S. 9:3551 refused to enforce it. For the reasons stated below, we affirm.

The note sued upon was executed in connection with a consumer credit transaction, and is therefore governed by the provisions of the Louisiana Consumer Credit Law. R.S. 9:3516(12).

Community’s manager, Herbert Harth-cock (Harthcock), was acquainted with defendant Michael Cobb (Michael) and was aware that Michael wished to acquire a second hand vehicle. Harthcock thereafter “found” a vehicle for Michael, at which time Community, through Harthcock, financed the purchase of this vehicle. The evidence indicates that Harthcock found this vehicle through a classified advertisement in a local paper. The cost of the vehicle was $500.00. Subsequently, Michael arranged to sell the vehicle to defendant Tommy Lee Kinchen (Kinchen) and Community again financed this purchase of the vehicle, this second financing being the transaction at issue. At the time of this transaction, Community paid off Michael’s previous debt in the amount of $844.00 and advanced $150.00 for repair of the then disabled vehicle. Community required the seller, Michael, the purchaser, Kinchen, and defendant Carolyn Cobb (Carolyn) who was living with Kinchen, to execute a note in the amount of $1,647.60, of which only the $150.00 for repairs was new money.

Initially, we note the court’s finding that plaintiff failed to rebate unearned interest in the pay-off of Michael’s loan, in violation of R.S. 9:3528. This failure, of course, taints the transaction at issue, because without unearned interest being rebated, the defendants were obligated to repay an amount in excess of that which was actually loaned.

The court found as a fact that “the defendants are all unsophisticated, uneducated people of extremely limited means, all of whom had an imperfect understanding of the transaction they entered into with plaintiff.” The court further found as a fact that plaintiff, through Harthcock, knew that the vehicle itself was disabled at the time of the transaction and worth only a few hundred dollars, far less than the amount of the note which the defendants were required to sign. In this regard, the court found that the discrepancy between the actual value of the vehicle and the size of the note was so great that it “amounts to overreaching by plaintiff, and exploitation of the unsophisticated, to such a degree that it borders on fraud.”

With regard to the court’s refusal to enforce this transaction, R.S. 9:3551 provides as follows:

“With respect to a consumer credit transaction, if the court as a matter of law finds the agreement or any clause of the agreement to have been unconscionable at any time it was made the court may refuse to enforce the agreement

The Louisiana Consumer Credit Law defines the term “unconscionable” as follows:

“A contract or clause is unconscionable when at the time the contract is entered into it is so onerous, oppressive or onesid-ed that a reasonable man would not have freely given his consent to the contract or clause thereof in question; . . . . ” R.S. 9:3516(30).

Considering plaintiff’s failure to rebate unearned interest in the prior transaction, together with its knowledge that the amount of defendants’ obligation far exceeded the actual value of the vehicle purchased by Kinchen and financed by plaintiff, the trial court concluded that the agreement sued upon was “so onerous, oppressive and onesided that no reasonable man would have freely consented to it.” After reviewing this entire record, and especially considering plaintiff’s manager’s personal knowledge and involvement in this transaction, we find the trial court to have been correct in both its factual findings and its conclusion of law as to the unconsciona-bility of this transaction. We further find that the trial court properly acted within its discretion in refusing to enforce the agreement sued upon.

For the foregoing reasons, the judgment of the trial court is affirmed. All costs, both at trial and on appeal, are to be paid by plaintiff-appellant, Community Acceptance Corp. of Denham Springs, Inc.

AFFIRMED.


author: SAVOIE, Judge.

text:
    Mrs. Claire Meagher, Wife of/and Oliver Jos. YOUNG v. Terry KOEHL, Sr., et al.
    No. 14774.
    Court of Appeal of Louisiana, First Circuit.
    June 29, 1982.
    Richard K. Simoneaux, New Orleans, for plaintiff, appellee.
    Stephen A Fritch, Metairie, for defendant, appellee Stan Weber & Assoc.
    Randolph C. Slone, Slidell, for defendant, appellant Terry Koehl, Sr., et al.
    Before ELLIS, PONDER and SAVOIE, JJ.
   SAVOIE, Judge.

On March 1, 1979, appellants, Terry Koehl, Sr. and Terry Koehl, Jr., entered into a contract with appellees, Mrs. Claire Meagher and Oliver Joseph Young, to purchase property in Lindberg Glen Subdivision in St. Tammany Parish. They agreed that the purchase price was the sum of $75,000.00 on terms of $18,750.00 cash and the balance to be obtained by a conventional loan. The said contract was conditioned upon the ability of the purchasers to borrow upon the property as security the sum of $56,250.00 by a mortgage loan or loans not to exceed twelve per cent (12%) plus two (2) discount points. The contract was prepared by sellers’ attorney, and further stipulated:

“It is distinctly understood that this agreement is entered into by the parties hereto individually, however, the purchaser shall have the privilege of applying for the requested loan in the name of Teck-Service, Inc., which loan shall be guaranteed, warranted and endorsed by the purchaser individually if requested by the lending institution.”

The contract was the result of an offer to sell made through the office of Stan Weber and Associates, Inc. Under this contract, the purchasers were obligated to make a good faith application for the required loan.

During the month of March, 1979, Terry Koehl, Sr. and Terry Koehl, Jr. met with Sharon Core, a loan officer with South Savings and Loan, for the purpose of obtaining the financing called for in the purchase agreement. The Koehls were advised that a loan would not be made on commercial property to individuals but that a loan was possible to a corporation. Sharon Core testified that the reason for this was that the usury statute in effect in Louisiana at that time forbade loans to individuals at more than ten per cent interest, but did not control the rate charged to corporate borrowers. A preliminary application was made with South Savings and Loan on March 7, 1979. The executive committee of South Savings and Loan met and voted.

“. .. to consider a commercial loan to Terry Koehl (Teck Service Inc.) at an interest rate of 12% plus 2 discount points provided that all of the underwriting requirements of the Association are met.”

On Friday, April 6,1979, Terry Koehl, Sr. lost his job of twenty-four years. Upon returning to Slidell the following Monday, he contacted his real estate agent and the attorney for the Youngs and advised them of that fact and requested that he be released from the contract. He allegedly, also called Sharon Core at South Savings and Loan and advised her of the situation.

Terry Koehl, Sr. made an additional attempt to secure monies to complete the purchase by contacting personal friends, but they were not able to assist him.

The sale was not consummated, and on October 11, 1979, Mrs. Claire Meagher and Oliver Joseph Young filed suit against the Koehls.

The main demand before the trial court involved a breach of an agreement to purchase involving appellants as prospective purchasers and plaintiff-appellees as prospective sellers. Plaintiff-appellees further joined Stan Weber and Associates, Inc. as defendants, due to Weber’s holding of the deposit, one-half (%) of which was reserved specifically to the seller in the event of forfeiture. Stan Weber and Associates, Inc. answered and filed a Third Party Demand, seeking its full commission, reasonable attorney’s fees and costs from the breaching purchasers.

The trial court awarded judgment to Meagher and Young against the Koehls on March 17, 1981, for damages equal to the deposit ($7,500.00), reasonable attorney’s fees and costs, and also against the defendant, Stan Weber and Associates, Inc., for one-half (Vfe) of the actual cash deposit, which would presumably serve as an off-set to the damages already awarded. In addition, third party plaintiff, Stan Weber and Associates, Inc., was awarded its full ten (10%) per cent commission, reasonable attorney’s fees and costs.

Appellants appeal on the basis that they did not breach the agreement to purchase, and thus are not responsible for either ap-pellees’ liquidated damages or third party plaintiff’s commissions. Due to this shared interest in upholding the trial court’s decision in full, Stan Weber and Associates, Inc. as third party plaintiff-appellee, joined in this appeal brief with plaintiff-appellees, and both shall hereinafter be referred to as simply “appellees”.

The trial judge stated his reasons for judgment from the bench immediately on the close of evidence. He found that Koehl,

“. .. signed individually a purchase agreement agreeing to purchase a certain piece of property for so much cash and a balance by conventional loan at twelve per cent plus two discount points. Then, after it says, ‘See reverse’. Then it goes on giving him the right and the privilege of applying for the requested loan in the name of a corporation which loan shall be guaranteed, warranted and endorsed by the purchaser individually if requested by the lending institution. The evidence does not show that the purchaser proceeded with the loan application. The evidence further shows that the institution would have lent the money at twelve per cent to Mr. Koehl and his corporation which he had the right to do. If he had made application and they had rejected it then we might have had a null and void contract. We do not have that situation here. The Court will grant a judgment to plaintiff in the amount sued for and to the third party plaintiff.” Rec. at pp. 131-132.

The trial judge was clearly wrong in holding that Koehl was contractually obligated to apply for a loan through his corporation. The plain language of the contractual provision noted by the judge expressly limits its binding effect to Koehl, individually, and grants him the privilege of applying for a loan through his corporation. There is no such thing as a mandatory privilege. He was not bound to make his corporation a party to the loan. The use of the word privilege precludes any obligation.

What, then, were the obligations of Koehl under the contract which he signed? The answer is that he was bound to make a good faith effort to obtain a personal loan on the terms contractually stipulated.

Did he do so? We find that he did. Though he never completed a formal application to South Savings and Loan, Inc., the loan officer made it abundantly clear that the organization would not even consider a loan to him personally, because the application of the usury prohibition would make such a loan unprofitable. Considering the reasons given by South Savings and Loan, Inc. for rejecting his application for a loan, we cannot say that he had reasonable grounds to believe that he could obtain a personal loan from some other similar institution. Woods v. Austin, 347 So.2d 897 (La.App. 3rd Cir. 1977).

Additionally, we note that there is nothing in the record to indicate that plaintiffs ever made a formal tender of title to Mr. Koehl. The relevant provision of the contract states:

“In the event the purchaser fails to comply with this agreement within the time specified, the seller shall have the right to declare the deposit, ipso-facto, forfeited, without formality beyond tender of title to purchaser; or the seller may demand specific performance.”

Tender of title is necessary, under the above clause, even though the purchaser has verbally communicated his unwillingness or inability to go through with the contract. Salvant v. Fritchue, 379 So.2d 752 (La.App. 4th Cir. 1979) writ refused 381 So.2d 509 (La.1980).

In the Salvant case, the court found the failure to tender title was fatal to the plaintiff’s case. The same is true in this matter.

The judgment below is reversed.

Costs on appeal will be assessed to the appellees, one-half to the sellers, Meagher and Young, and one-half to the realtor, Stan Weber & Associates, Inc.

REVERSED.

      . Black’s Law Dictionary defines “privilege” as follows: “Privilege: A particular and peculiar benefit or advantage enjoyed by a person ... exemption from some burden .. . That which releases one from the performance of a duty or obligation.... ”


author: WATKINS, Judge.

text:
    Norman BREAZEALE and Margaret Breazeale v. CNA INSURANCE and O’Keefe Tire and Service, Inc.
    No. 14813.
    Court of Appeal of Louisiana, First Circuit.
    June 29, 1982.
    Bernard S. Smith, Covington, for plaintiff, appellant.
    John Farrell, Jr. & John H. Musser, New Orleans, for defendant, appellee.
    Before COVINGTON, COLE and WATKINS, JJ.
   WATKINS, Judge.

This is an action brought by the non-dependent surviving parents of a major son who was unmarried to recover death benefits under an amendment to the Louisiana Workmen’s Compensation statute enacted by Act 509 of the 1980 Regular Session of the state legislature. Under that amendment, which took effect sixty days after final adjournment of the legislature by effect of Article III, Section 19 of the Louisiana Constitution of 1974, or on September 12, 1980, no effective date having been prescribed by the legislature, each non-dependent surviving parent of a child may recover the sum of $20,000.00 as exclusive workmen’s compensation for that child’s death. The child died before Act 509 took effect. Before Act 509 took effect, no right to recover workmen’s compensation in such a situation existed. Both sides in the present case filed motions for summary judgment. Summary judgment was granted in favor of defendants, dismissing plaintiffs’ action with prejudice. We affirm.

Plaintiffs, Norman Breazeale and Margaret Breazeale, are the surviving non-dependent parents of Norman Breazeale III, a major at the time of his death. Mr. Breaz-eale III was critically injured on August 1, 1980, when a tire he was working on exploded in the course and scope of his employment by O’Keefe Tire and Service, Inc. Mr. Breazeale III died on August 21, 1980, without issue. His parents brought the present action against O’Keefe Tire and Service, Inc. and National Fire Insurance Company, O’Keefe’s workmen’s compensation carrier, erroneously designated as CNA Insurance in plaintiffs’ petition. The basis of plaintiffs’ suit is Act 509 of 1980, which took effect after the son’s death, and which amended LSA-R.S. 23:1231 to read as follows:

“For injury causing death within two years after the accident, there shall be paid to the legal dependent of the employee, actually and wholly dependent upon his earnings for support at the time of the accident and death, a weekly sum as hereinafter provided. 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.
“However, if the employee leaves no legal dependents, the sum of twenty thousand dollars shall be paid to each surviving parent of the deceased employee, in a lump sum, which shall constitute the sole and exclusive compensation in such cases.”

The sole question presented to us for consideration, aside from the effective date of Act 509 of 1980, which we have determined above, is whether or not Act 509 should be accorded retroactive effect.

LSA-C.C. art. 8 sets forth the general rule on the retroactivity of statutes in this civilian jurisdiction. That article reads as follows:

“A law can prescribe only for the future; it can have no retrospective operation, nor can it impair the obligation of contracts.”

There are a number of exceptions to the general rule. In certain limited cases, as was recognized by Ardoin v. Hartford Accident and Indemnity Co., 360 So.2d 1331 (La.1978), statutes are accorded retroactive effect in this state:

1. Laws that are merely interpretative of existing legislation;
2. Laws that suppress or lessen penalties;
3. Laws that the legislature has expressly or impliedly declared to be retroactive.

In support of this determination, Ardoin cites 1 M. Planiol, Civil Law Treatise, Nos. 249-252 (La.St.L.Inst.Trans1.1959), and A. Yiannopoulos, Civil Law System, 68 (1977).

It is apparent that exceptions 2 and 3 listed above have no application. With respect to exception 1., as is explained by Mr. Yiannopoulos, statutes are interpretative only if they interpret existing rights and duties, rather than establishing a new right or duty.

Before Act 509 of 1980 took effect, surviving non-dependent parents of a worker who died could not recover compensation benefits. Thus, Act 509 established a new right to compensation benefits in favor of parents, which had not existed earlier. Act 509 is not interpretative, as no right to workmen’s compensation under the present circumstances had existed before. Hence, the present case does not fall under any of Ardoin exceptions to the general rule of LSA-C.C. art. 8 forbidding retroactive application of statute, as the statute is not interpretative, nor does it lessen penalties, nor did the legislature expressly or impliedly give it retroactive effect.

A number of other exceptions to the rule of non-retroactive application of statutes have been recognized by the courts of this state:

1. Statutes that are curative in the sense they remove past disabilities in order to effect the true intent of the legislature. Fullilove v. U. S. Casualty Company of New York, 129 So.2d 816 (La.App. 2d Cir. 1961).

2. Statutes that are procedural. See Ardoin, supra.

3. Statutes that are remedial. See Paulsen v. Reinecke, 181 La. 917, 160 So. 629 (1935).

Act 509 is not curative, as it does not remove past disabilities. Before that act was passed, non-dependent parents had no right at all to workmen’s compensation. The ease was not simply one of a removal of a disability barring the exercise of a right, as in Fullilove, but of the creation of a new right where none existed before. Hence, the statute is not curative.

Act 509 is obviously not procedural, as it confers a substantive right, viz., the right to compensation benefits.

Act 509 is not remedial, as, under the express holding of Paulsen v. Reinecke, supra, a statute is not remedial if it creates a right where none existed before. Here, as we have emphasized, no right existed before.

Counsel for appellants has made quite an able and scholarly effort to establish his position that Act 509 should be applied retroactively. However, as we have stated, LSA-C.C. art. 8 establishes a general rule or principle forbidding retroactive application of legislative enactments, and Act 509 of 1980 falls within none of the recognized exceptions to this rule or principle. Hence, although we feel great sympathy for the parents of Norman Breazeale III for the tragic loss of their son, we cannot find a right to have existed at the time of death where there was none. Hence, we hold summary judgment was properly granted in favor of defendants.

The judgment of the trial court is affirmed, at appellants’ cost.

AFFIRMED.


text:
    Richard A. BLOCK v. RELIANCE INSURANCE COMPANY.
    No. 14852.
    Court of Appeal of Louisiana, First Circuit.
    June 29, 1982.
    Charles Hanemann, Houma, for plaintiff and appellant.
    John Nickerson Chappuis, Lafayette, for defendant and appellee.
    Before LEAR, CARTER and LANIER, JJ.
   LEAR, Judge.

Plaintiff-appellant, Richard A. Block, was involved in an automobile accident and was severely injured on November 19,1977. At the time of this accident, plaintiff was driving a vehicle, which was owned by his employer and which was one of at least thirty-four vehicles insured under a fleet policy by defendant, Reliance Insurance Company. Each of these thirty-four separate vehicles was provided with uninsured motorist coverage in the amount of $5,000.00 per person. Plaintiff alleged that the driver of the other vehicle was uninsured or underinsured and sought to “stack” the UM coverages provided by defendant. Plaintiff prayed for judgment against defendant in the amount of $170,000.00.

After a trial on the merits, the court found that the tortfeasor was uninsured at the time of the accident and assessed plaintiff’s damages in the amount of $66,000.00. The trial court then determined, however, that plaintiff was not entitled to “stack” the multiple UM coverages provided by defendant, and limited plaintiff’s recovery against defendant to the coverage provided for one vehicle, in the amount of $5,000.00. Plaintiff then took this appeal.

The only issue on appeal is whether the trial court was correct in finding that plaintiff was not entitled to “stack” the multiple UM coverages provided under the fleet policy-

The insurance policies at issue contain provisions prohibiting the stacking of multiple UM coverage. Plaintiff is correct in stating that, at the time these insurance policies were issued and prior to September 9, 1977, staking of multiple UM coverages was permitted and thus the policy provisions prohibiting stacking could not be enforced at the time the policies were written. However, Act 623 of 1977 amended LSA-R.S. 22:1406(D). This amendment, popularly known as the “anti-stacking” statute, became effective on September 9, 1977, and prohibited this stacking procedure. While the “anti-stacking” provisions of the policies could not be enforced prior to the effective date of the “anti-stacking” amendment, we do not agree with plaintiff that they were not in fact contained in the agreement between the parties. Thus, when plaintiff’s cause of action arose on November 19,1977, there existed no prohibition in the law which would prevent the “anti-stacking” language in the policies from being enforced. We therefore find no merit in plaintiff’s argument that to apply the “anti-stacking” amendment to these insurance policies would result in the impairment of any party’s obligation or rights under the contract of insurance.

Prior to the effective date of the “anti-stacking” amendment, the right to stack multiple UM coverages was a statutory right. On September 9, 1977, a change in this statutory right became effective. At the time of this accident, plaintiff had no statutory right to “stack” multiple UM coverages.

On two occasions the third circuit has recently addressed itself to this legal issue. These cases, Hebert v. Breaux, 398 So.2d 1299 (La.App. 3rd Cir.), writ denied, 401 So.2d 986 (La.1981), and Thibodeaux v. Olivier, 394 So.2d 684 (La.App. 3rd Cir.), writ denied, 397 So.2d 1360 (La.1981), involved factual situations identical to this instant case. In both cases, the third circuit found that the insured was not entitled to stack UM coverages, because the policies contained provisions prohibiting stacking and the accidents at issue in each case occurred after the effective date of the “anti-stacking” amendment. In both cases the insured, who was prohibited from stacking the multiple UM coverages, applied for writs to our Supreme Court. As noted above, however, the Supreme Court, in both cases, denied the application for writs.

Because stacking was a statutory right, which was not available to plaintiff at the time his cause of action arose, and the policies contained provisions which prohibited stacking multiple UM coverages, we find that the trial court was correct in holding that plaintiff was entitled to only the policy limit of one of the UM coverages, in the amount of $5,000.00. We are further persuaded of the correctness of this decision by the Supreme Court’s refusal to grant writs in the Hebert and Thibodeaux cases.

For the foregoing reasons, the judgment of the trial court is affirmed. All costs on appeal are to be paid by plaintiff-appellant, Richard A. Block.

AFFIRMED.


text:
    Eugene HECK v. Catherine Ann HECK.
    No. 14889.
    Court of Appeal of Louisiana, First Circuit.
    June 29, 1982.
    William C. Dupont of Dupont, Dupont & Dupont, Plaquemine, for plaintiff-appellant Eugene Heck.
    Donna W. Lee, Luse & Lee, Baton Rouge, for defendant-appellee Catherine Ann Heck.
    Before ELLIS, PONDER and SAVOIE, JJ.
   SAVOIE, Judge.

This case is on appeal from a judgment awarding permanent alimony under Civil Code Article 160, to a divorced wife. The former wife, Catherine Heck, was found to be without fault in the divorce. The marriage between her and the appellant, Eugene Heck, lasted approximately six years and produced no children. Both parties are employed full-time. Eugene Heck has two teen-age children of a prior marriage residing with him. Catherine Heck has no dependents.

The key finding necessary for an award of alimony under Louisiana Civil Code Article 160 is that the spouse claiming it “has not sufficient means for support”. The trial judge based his finding on necessitous circumstances in this case on evidence that Mrs. Heck had monthly take-home pay of $852.50 and monthly expenses of at least $1,100.00.

Her expense list included no unusual or extraordinary items with the exception of an unsupported weekly expense of $50.00 for chiropractic treatment for a back ailment.

Eugene Heck showed that he had take-home pay of $1,414.12 per month. An income tax refund of $1,300.00 last year would raise this amount by a little more than $100.00 per month. He also submitted an expense list showing a monthly deficit. Nevertheless, he was ordered to pay $189.00 per month in permanent alimony.

In Silas v. Silas, 399 So.2d 779 (La.App. 3rd Cir. 1981) Judge Cutrer wrote:

“Alimony after divorce is awarded to a spouse only if that spouse proves that he or she has insufficient means of support. Expenses which should be considered in determining the needs of the claimant spouse are primarily those of food, clothing and shelter. Also, included are other necessary items such as reasonable transportation expenses, utilities and household expenses. Volker v. Volker, 398 So.2d 134 (La.App. 3rd Cir. 1981); Moss v. Moss, 379 So.2d 1206 (La.App. 3rd Cir. 1980); Bernardt v. Bernardt, 283 So.2d 226 (La.1973).
“The plaintiff is employed by the Rapides Parish School Board at a gross salary of $12,000.00 per year.
“The record establishes that the plaintiff is a well-educated self-sufficient person. She has no unusual or major financial obligations. In the months prior to trial she has even consistently maintained a $50.00 per month savings plan. We find that the plaintiff has sufficient means to provide herself with the basic necessities of life. The trial court erroneously awarded the plaintiff $250.00 per month permanent alimony and the judgment must be reversed in this regard.”

The gross salary of Catherine Heck is over $14,000.00. We agree with the Silas court that a person with no unusual or major financial obligations, working full-time for a respectable salary, is not in necessitous circumstances so as to justify an award of permanent alimony.

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

All costs are to be taxed to appellee.

REVERSED.

      . We find the expenses listed by the appellee to be inflated.

      . We find the expenses listed by the appellant reasonable.


text:
    Lou Anna BOUFFANIE, et al. v. Jacqueline G. CHERAMIE, et al.
    No. 14890.
    Court of Appeal of Louisiana, First Circuit.
    June 29, 1982.

      Jack Harang, New Orleans, for plaintiff-appellants Lou Anna Bouffanie, et al.
    H. Harwell Herrin, Golden Meadow, for defendants-appellees Jacqueline and Daniel Cheramie.
    Carlos E. Lazarus, Jr., Houma, for defendants-appellees Aetna Life & Cas. Co. and Department of Transp. & Development.
    Before COVINGTON, COLE and WATKINS, JJ.
   COVINGTON, Judge.

This appeal was taken by the plaintiff, Lou Anna Bouffanie, from a judgment in favor of the defendants, Jacqueline G. Cheramie, Daniel T. Cheramie, Aetna Life and Casualty Company and the State of Louisiana, Department of Transportation and Development, granting the defendants’ motion for summary judgment and dismissing the plaintiff’s claim. We affirm.

The petition alleged that Mr. Bouffanie was killed in an accident on June 23, 1979, at about 10:30 p. m., caused by the joint negligence of Jacqueline G. Cheramie and the State of Louisiana. By supplemental petition, George E. Fitch was added as a defendant.

In response, the defendants, Mr. and Mrs. Daniel Cheramie, Aetna Life and Casualty Company and the State, filed the present motion for summary judgment on the basis that the pleadings, the depositions of Jacqueline Cheramie and George Stolpa, and the affidavits on file establish that the accident was caused solely by negligence on the part of Mr. Bouffanie in carelessly crossing over into the lane of traffic in which Mrs. Cheramie was driving, and in losing control of his vehicle, and was not caused by any negligence on the part of the defendants who have moved for a summary judgment. The plaintiff failed to file any counter-affidavits, depositions, or other evidence in opposition to the motion for summary judgment.

In granting the motion for summary judgment, the trial judge made the following findings:

“The testimony of the defendants’ witnesses establishes the following: that it was the motorcycle operated by the plaintiffs’ decedent that crossed left of the center line of the highway into the opposing lane of traffic which was already occupied by the oncoming Cheramie vehicle; that this occurred as a result of the plaintiffs’ decedent losing control of his motorcycle after his motorcycle rear-ended the preceding Fitch motorcycle; that at this time it was too late for the Chera-mie vehicle to take evasive action to avoid the accident; that the accident occurred in the proper lane of traffic for the Cheramie vehicle; that at no time either before or after the accident did the Cheramie vehicle cross left of the center line of the highway into the proper lane of traffic for the motorcycle operated by the plaintiffs’ decedent, and; that there were no defects in the highway which could have caused the plaintiffs’ decedent to lose control of his motorcycle.
“Thus the Court finds that the depositions filed into the record by the defendants leave no genuine issues of material fact as to the cause of the accident or as to the liability of the defendant-movers. The Court further finds that on the basis of the pleadings and depositions on file the facts fail to support liability on the part of any of these defendants and therefore that they are entitled to judgment in their favor as a matter of law.”

We find that the supporting documents presented by the movers in the instant case are sufficient to resolve all genuine issues of material fact. Hence, the burden shifted to the opponent to present evidence showing that material facts are still at issue; the plaintiff may no longer rest on the pleadings filed. See LSA-C.C.P. art. 967; Sanders v. Hercules Sheet Metal, Inc., 385 So.2d 772 (La.1980).

The law is established that when the evidence submitted on the motion for summary judgment leaves no relevant, genuine issue of fact, and when reasonable minds must inevitably conclude that the mover is entitled to judgment on the facts before the court, the motion for summary judgment should be granted. LSA-C.C.P. art. 966; Cates v. Beauregard Electric Cooperative, Inc., 328 So.2d 367 (La.1976).

Accordingly, we find there is no genuine issue as to material fact, and the plaintiff is barred from recovery as a matter of law. The judgment of the district court is affirmed at plaintiff’s costs.

AFFIRMED.

      .Suit was filed by Lou Anna Bouffanie, individually and on behalf of her minor child, Shan-tell Bouffanie, for damages for the wrongful death of Russell S. Bouffanie, the husband and father, respectively.

      . Defendant Fitch has not filed a motion for summary judgment and the record does not reflect that issue has been joined as to him.

      . George Stolpa was a passenger on the motorcycle driven by George E. Fitch.