author: SAMUEL, Judge. REDMANN, Judge,

text:
    Bobby SHORT v. CRIMINAL SHERIFF’S OFFICE.
    No. 12850.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 8, 1981.

      Bobby Short, in pro. person.
    Bob Finkelstein, New Orleans, for defendant-appellant.
    Before SAMUEL, REDMANN and GARRISON, JJ.
   SAMUEL, Judge.

Bobby Short, an employee of Charles C. Foti, Jr., Criminal Sheriff, was suspended from duty as a deputy. He appealed the suspension to the Civil Service Commission of the City of New Orleans. Asserting Short was not a classified employee, the appointing authority filed an exception of no right or cause of action to the appeal. The Commission denied the exception and the appointing authority appealed to this court from that denial.

Ex proprio motu, we issued an order to show cause why the appeal should not be dismissed on the ground that the denial of the peremptory exception was interlocutory and not appealable in the absence of a showing of irreparable injury. Both litigants were given an opportunity to respond to the rule and both have responded.

Appeals may be taken only from final judgments and from interlocutory judgments which may cause irreparable injury; the decision here appealed from is not final, it is interlocutory; and it cannot be appealed from in the absence of a showing it may cause irreparable injury. As the appointing authority has failed to show the interlocutory decision of which it complains may cause irreparable injury, and as its complaint may be considered on appeal following a decision on the merits, this appeal must be dismissed.

For the reasons assigned, the appeal in this matter is dismissed.

APPEAL DISMISSED.

REDMANN, J., concurs.

REDMANN, Judge,

concurring.

I agree that a government employer cannot appeal from the Civil Service Commission’s overruling of an exception of no cause of action to a probationary employee’s appeal from firing.

Treating this appeal as a writ application, I find no error in the Civil Service Commission’s ruling.

      . C.C.P. Arts. 2083 and 1841; Wallace v. Pan American Fire & Cas. Co., La.App., 386 So.2d 158, and Millet v. Johnson, La.App., 352 So.2d 1301, and cases cited therein.


source: Caselaw Access Project

author: L. JULIAN SAMUEL, Judge.

license: Public Domain

text:
    Lawrence J. KEATING, et al. v. Douglas A. CAMBRE, et al.
    No. 12126.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 8, 1981.

      John Levy and Roland J. St. Martin, La-Place, for plaintiffs-appellees.
    Gross & Abramson, Tony C. Tillman, La-Place, for defendants-appellants.
    Before SAMUEL, BOUTALL and CHE-HARDY, JJ.
   L. JULIAN SAMUEL, Judge.

The two plaintiffs filed this suit for a declaratory judgment decreeing them to be the owners of a certain tract of land in the Parish of St. John the Baptist. There are twenty-seven named defendants. Allegedly, twenty-six of the defendants have caused themselves to be placed in possession of an undivided interest in the land in suit by a judgment in a succession proceeding, and the remaining defendant is a presumptive heir.

Twelve of the defendants failed to appear timely and a default judgment was confirmed against them. These twelve defendants have appealed from that judgment.

The testimony adduced at the confirmation of the default was not taken; there was no court reporter present at that time; and, counsel for the litigants herein having failed to agree on a stipulation of fact, the trial judge was requested to, and did, prepare a narrative. The narrative states: Although no court reporter was available at the time, plaintiffs’ attorney insisted on confirming the default because his witnesses were present; these witnesses (the two plaintiffs) testified: "... they and their ancestors in title had been in actual, continuous, uninterrupted, public and peaceful possession of the property concerned since May 28, 1964.” and “There being no traverse, contradiction, nor impeachment of this testimony, this court confirmed the default . . . . ”

In this court appellants contend the trial court erred in granting: (1) a default judgment without a court reporter to record the proceedings; (2) a judgment based on insufficient evidence; and (3) a judgment in the absence of law on which to base the same. As appellants’ first contention, if valid, is sufficient to annul and set aside the judgment appealed from, and as we agree with that contention, a consideration of the others is unnecessary.

The first contention is based on Rule XXIX of the Rules of the Twenty-Ninth Judicial District Court (the trial court in this case) which, in pertinent part, provides:

“On confirmation of default in cases involving the title to realty, the testimony shall be reported, transcribed and placed in the record at the expense of the plaintiff, for which the reporter shall be paid the rate prescribed by law.”

This rule clearly was violated here. The case does involve title to realty and on the confirmation of the default the testimony was not “... reported, transcribed and placed in the record . ...” as mandatorily required by the rule. Rules of court not in conflict with express law have the force of law and are binding upon the judge as well as the litigants, and we know of no express law which would prevent the district court from adopting the above quoted portion of Rule XXIX.

Appellees do not contend that Rule XXIX does not exist or that it is not applicable here. Nor do they contend the pertinent part of Rule XXIX as quoted above is in any way incorrect. However, citing such cases as Bowman v. Flowers, 2 Mart. (N.S.) 267 (1824), and Herring v. Price, 169 So. 349 (La.App., 1936), they do argue trial court rules constitute new evidence and, as such, cannot be received in the appellate courts. If this argument were correct, we would remand the case to the trial court for the purpose of determining whether or not Rule XXIX is in fact a rule of the district court.

We do not feel such a remand is necessary. The rules of court of the Louisiana courts have been for some years, and are now, published annually by the same company that publishes Louisiana appellate cases, codes and statutes. Rule XXIX of the Twenty-Ninth Judicial District Court, including that portion of Rule XXIX which we have quoted above, is to be found in that publication at La.Ct.Rules Pamph. ’81, p. 621. We deem this sufficient to satisfy us as to Rule XXIX in this case.

For the reasons assigned, the judgment appealed from is annulled and set aside and the matter is remanded to the trial court for further proceedings in accordance with law. Costs in this court are to be paid by the appellees. All other costs are to await a final determination.

ANNULLED, SET ASIDE AND REMANDED.

      . Interdiction of Wenger, 147 La. 422, 85 So. 62; Walker v. Ducros, 18 La.Ann. 703; Perry v. Law, La.App., 311 So.2d 283.


author: GULOTTA, Judge.

text:
    Helen Tappel, Wife of/and Burnett G. TAPPEL and Burnett G. Tappel, Jr. in His Capacity as the Natural Tutor of his Minor Child, Craig Tappel v. Joycelyn L. Vidros, Wife of/and Alton J. VIDROS, and the Travelers Insurance Company.
    No. 12173.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 8, 1981.

      Boggs, Loehn & Rodrigue, Thomas E. Loehn, New Orleans, for plaintiffs/third-party defendants/appellees.
    Law Offices of James J. Morse, John A. Cvejanovich, New Orleans, for defendants/third-party plaintiffs/appellants.
    Herman L. Bastían, Jr., Salvador Anzel-mo, Avis M. Russell, New Orleans, for third-party defendant and appellee the City of New Orleans.
    Before GULOTTA, GARRISON and BARRY, JJ.
   GULOTTA, Judge.

In this intersectional accident case we are confronted with two issues: 1) which of the two drivers crossed the intersection while favored with a green light, and 2) whether the City of New Orleans is liable because of a malfunctioning semaphore light at the intersection.

At the time of the accident, the plaintiff automobile, driven by Burnett G. Tappel and occupied by his wife Helen and their young grandson, was traveling in a southerly direction on Marr Street at approximately 11:30 or 11:45 a.m. on Sunday, November 30, 1975. Marr is an undivided two-lane street intersecting with General DeGaulle Avenue, a four-lane thoroughfare running East and West and separated by a neutral ground. The defendant automobile, driven by Joycelyn Vidros, was traveling in a westerly direction on General DeGaulle Avenue.

Plaintiffs’ version of the accident was that after stopping for a red light at the intersection, they attempted to cross De-Gaulle on a green light in their favor and had reached the neutral ground when the Vid-ros automobile struck their vehicle between the front and rear doors.

The Vidros’ version, on the other hand, is that the light was green for traffic traveling on DeGaulle when the defendant vehicle entered the intersection and remained green up to the time of impact.

It is undisputed that the signal light at this intersection at the time of the accident was malfunctioning. According to uncon-tradicted testimony, the length of time between cycle changes was abnormally short. According to Elmer Darwin, a traffic engineer with the City of New Orleans, this problem was caused by a malfunctioning controller.

The trial judge, concluding that Joycelyn Vidros, driver of the defendant automobile, had failed to take the proper precautions when entering a malfunctioning signal light intersection, awarded judgment in favor of plaintiffs. Third-party demands against the City and Tappel were dismissed. Defendants appeal. We affirm.

LIABILITY OF DEFENDANT DRIVER

In written reasons, the trial judge, in pertinent part, stated:

5. The defendant was on a straight-away street ‘DeGaulIe’ and had she been paying just a little bit more attention to what she was doing, she could have (1) observed the malfunctioning light and, (2) avoided this accident, (3) seen the plaintiff cross in front of her.
6. ...
7. ...
8. All of this indicates negligence on the defendant’s part; she did not pay adequate attention to the traffic light itself, to the cars opposing her, to the cars crossing both ways in front of her, all at a time when traffic was extremely light on a Sunday morning....”

The trial judge went on to state in those written reasons that the plaintiff driver had entered the intersection “slowly and carefully” and exonerated him from liability.

Defendants, appealing, claim the trial judge admittedly reached his factual conclusion based on a “foggy memory” and his conclusions are therefore not entitled to the benefit of the manifest error rule. We do not agree.

Despite the judge’s statements that his memory was foggy when the written reasons were assigned, those reasons accurately reflect the evidence and find support in the record. The plaintiff-driver testified that after stopping for a red light on Marr, he proceeded, when the light changed to green, across DeGaulIe and was struck while in the intersection near the neutral ground. He stated that the light was changing quickly but that it remained green until the time that he was hit. His version of the accident was supported by his wife who stated that she was observing traffic on DeGaulIe to her right and saw the automobiles proceeding in an easterly direction on DeGaulIe (in the opposite direction from defendants’ automobile) coming to a stop.

George J. Thibodaux, who was traveling on Marr Street in a northerly direction (opposite from the direction of the Tappel automobile), witnessed the accident. He stated that the light was malfunctioning and that as he approached the DeGaulIe intersection, he, like the plaintiff driver, stopped for the red light on Marr and when it turned green commenced to cross De-Gaulle, but as he reached the neutral ground the light changed to red. Thibodaux added that the Tappel vehicle was stopped in the neutral ground when struck.

Joycelyn Vidros stated that she had first noticed the plaintiff automobile when she was approximately 25 feet from the intersection. This defendant acknowledged, however, that she did not observe the light from the time that she initially saw it approximately 100 feet away and the time the accident occurred. She stated she was traveling approximately 30 or 35 mph. Although later in her testimony she indicated that she had been watching the light the “whole time” and could see the light from approximately a distance of one-and-one-half blocks away, she was unaware of the malfunctioning light and entered the intersection without reducing her speed or taking any precaution required under the circumstances. Had she been the least bit attentive, she would have observed the malfunctioning light, the stopped automobiles on DeGaulIe traveling in her direction, and the crossing Tappel and Thibodaux automobiles. Furthermore, although Thibodaux testified that an automobile in front of him on Marr traveling in the same direction in which he was traveling, had negotiated the intersection, Vidros testified that she did not see these automobiles. This evidence clearly supports that the defendant driver was inattentive to her surroundings. We find no error in the trial court’s judgment casting defendants in judgment.

LIABILITY OF CITY OF NEW ORLEANS

We find no error further in the trial court’s judgment exonerating the City from liability.

The Supreme Court in Jones v. City of Baton Rouge, Etc., 388 So.2d 737 (La.1980) recognized that a public body may be subject to tort liability either on negligence or on legal fault under LSA-C.C. Art. 2317. Legal fault under this codal article does not require a showing of the public body’s knowledge (constructive or actual) of the existence of a danger, but rather is a consequence of ownership and custody instead of a breach of a duty. See also, Shipp v. City of Alexandria, 395 So.2d 727 (La.1981). Negligence based liability, on the other hand, requires a showing of the public body’s notice (constructive or actual) that a danger exists. See U.S.F. & G. Co. v. State, Dept. of Highways, 339 So.2d 780 (La.1976); Bourgeois v. State Through Dept. of Highways, 255 So.2d 861 (La.App. 4th Cir. 1971); McDaniel v. Welsh, 234 So.2d 833 (La.App. 1st Cir. 1970).

STRICT LIABILITY

A custodian or, as in our case, a public body can escape LSA-C.C. Art. 2317 liability only by showing that the harm was caused by the fault of the victim, by the fault of a third person, or by an irresistible force. See Jones v. City of Baton Rouge, supra; Loescher v. Parr, 324 So.2d 441 (La. 1976). The trial judge’s conclusion, clearly supported by the evidence, is that the cause of the accident resulted from the negligence of a third party, i.e., Joycelyn Vidros, the driver of the defendant vehicle. We are not here confronted with a situation where a malfunctioning signal light indicated green for both intersecting drivers as occurred in Gaspard v. Stutes, 380 So.2d 201 (La.App. 3rd Cir. 1980). In that case, neither driver was found to be at fault. Under the circumstances of our case, we cannot conclude that the City of New Orleans can be held liable under the strict liability concept of LSA-C.C. Art. 2317.

NEGLIGENCE

The Louisiana Supreme Court in U.S.F. & G. Co. v. State, Dept, of Highways, supra, clearly set forth the guidelines in a negligence based claim against a public body. The court stated that a public body is not responsible for every highway accident and is not a guarantor of the safety of travelers or an insurer against all injury that may result from obstructions or defects in highways. The court stated further that in order to hold a public body liable for an unsafe or hazardous condition it must be shown that that body had prior notice, either actual or constructive, of the dangerous condition and had sufficient opportunity to remedy that condition or to alert and warn motorists of its existence, and failed to do so.

Applying these guidelines to the facts in our case, we are led to conclude that the City had notice of the existence of the malfunctioning light and timely made reasonable, repeated efforts to correct that malfunction. According to the work reports introduced into evidence, as interpreted by the traffic engineer, on November 18, 1975 the traffic light was “found skipping”. The time clock was replaced and adjusted. On November 21, in response to a complaint, the controller was changed. Again, on November 25, the time clock was stuck and replaced. This repair was made in response to complaints on that date. Also, on November 26, on a complaint that the signal was “stuck”, the light was checked by a repair team but found to be functioning properly. On November 29, a complaint was received at 6 p.m. that the signal light had been flashing red and green. Upon arrival of a city workcrew at 7:25 p.m., however, the signal light was performing satisfactorily. Finally, the controller was again changed on the signal light on November 30 subsequent to the accident.

Considering the City’s responses to the complaints and its repeated repairs to the malfunctioning light, we cannot say that the City failed to exercise reasonable efforts to correct .the defects. Were we to hold otherwise, we would make the City the insurer of all injury resulting from the defect. As pointed out in U.S.F. & G. v. State, Dept. of Highways, supra, the public body is not the guarantor of the safety of travelers or an insurer against all injuries that may result from the defect.

Accordingly, we find no error in the judgment of the trial court exonerating the City from liability. Having so concluded, we affirm the judgment.

AFFIRMED.

      . This understandable statement was made by the trial judge when assigning written findings of fact and reasons for judgment in response to a writ of mandamus issued by this court as a result of a request for the trial judge to render written reasons. 379 So.2d 886. In those reasons the trial judge explained that because of the lapse of time between rendition of the judgment and the mandamus he did not have the benefit of the transcript and the facts and evidence in the case had become “stale”.

      . LSA-C.C. Art. 2317 reads as follows:
      “Art. 2317. Acts of others and of things in custody.
      We are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of the things which we have in our custody....”


text:
    Larita S. MIXON v. NEW ORLEANS POLICE DEPARTMENT.
    No. 12195.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 8, 1981.
    New Orleans Legal Assistance Corp., Sidney D. Watson, Maureen O’Connell, New Orleans, for plaintiff-appellant.
    Charles J. Willoughby, Marc G. Shachat, New Orleans, for defendant-appellee.
    Before GULOTTA, GARRISON and BARRY, JJ.
   GULOTTA, Judge.

The issue in this case is whether a 50-year-old, classified probationary civil service employee (who was discharged within one year from date of employment) is entitled to appeal her termination to the City Civil Service Commission where she alleges her termination was based upon age discrimination.

On appeal from the Commission’s order denying her request to appeal, plaintiff claims that Commission Rule II Section 4.1(c), which provides for appeal to the civil service commission only where an employee alleges discrimination based on . political or religious beliefs, sex or race ...,” contravenes the equal protection clauses of the Louisiana and United States Constitutions. Plaintiff points out that the Commission’s failure to include age discrimination allegations as a basis for appeal violates LSA-Const. Art. I § 3, which prohibits the adoption of any law that arbitrarily, capriciously or unreasonably discriminates against a person because of birth, age, culture, physical condition or political ideas or affiliations.

Relying on the 14th Amendment of the United States Constitution as interpreted by the U.S. Supreme Court, plaintiff further claims the Commission’s classification in its rule for appeals based on discrimination bears no rational relationship to the stated purpose of the civil service law, which is to further merit selection of government employees.

Defendant, on the other hand, claims the Commission’s rule complies with LSA-Const. Art. 10, § 8(B) which provides:

“(B) Discrimination. No classified employee shall be discriminated against because of his political or religious beliefs, sex, or race. A classified employee so discriminated against shall have the right of appeal to the appropriate commission. The burden of proof on appeal, as to the facts, shall be on the employee.”

Defendant points out that this provision of the Constitution excludes age discrimination as a ground for appeal to the Commission. Age, according to defendant, is not a suspect classification requiring “strict scrutiny” under equal protection analysis. Defendant claims that age classification is a permissible distinction and the Commission’s rule establishing appellate review classification is “reasonable.”

It is clear that Rule II, Sec. 4.1(c) of the Rules of the Civil Service Commission allows no right of appeal where age discrimination is alleged, but grants the right where political or religious beliefs, sex or race discrimination are alleged. Although the language in the rule tracks the wording of LSA-Const. Art. 10, § 8(B), supra, the question arises whether the Commission’s denial of a right of appeal based upon allegations of discrimination because of age, while affording a right of appeal based on the other enumerated types of discrimination, violates the equal protection provisions of LSA-Const. Art. I, § 3. See also, Lindsey v. Normet, 405 U.S. 56, 92 S.Ct. 862, 31 L.Ed.2d 36 (1972) for a discussion of the equal protection afforded by the U.S.Const., 14th Amendment.

In making a judicial inquiry under the equal protection provisions of the Louisiana and United States Constitutions, a court must determine whether the classification drawn in the statute is reasonable in light of its purpose. McLaughlin v. State of Florida, supra. In our case, the equal protection guarantee is not violated if the classification created by the legislation bears a rational relationship to a legitimate state purpose sought to be achieved by the legislation. Louisiana & Arkansas Railway Company v. Goslin, 258 La. 530, 246 So.2d 852 (1971); Acorn v. City of New Orleans, 377 So.2d 1206 (La.1979). The Louisiana Supreme Court has recognized that a reasonable classification is one that includes all persons who are similarly situated with respect to the purpose of the law. Acorn v. City of New Orleans, supra.

It is widely recognized that the purpose of the civil service system is to secure governmental employees in their positions, free from discrimination of political, religious or other nature. Perkins v. Director of Personnel, 220 So.2d 253 (La.App. 1st Cir. 1969). It is grounded in the “merit system” of employment. Womack v. Louisiana Com’n. on Governmental Ethics, 250 La. 833, 199 So.2d 891 (La.1967). Furthermore, LSA-Const. Art. 10, § 10(A)(1) gives civil service commissions rule-making power to “accomplish the objectives and purposes of the merit system of civil service.... ”

In view of this clear legislative purpose, we cannot say that the Commission’s denial of a right of appeal to employees discriminated against because of age is a practical or reasonable means of furthering governmental employment based on merit. Indeed, denial of the right of appeal to employees suffering discrimination because of their age, a non-merit factor, while affording an appeal to other similarly situated employees suffering from other types of discrimination, contravenes the merit selection system and defeats the legislative purpose of the civil service law. Accordingly, we conclude that Rule II, Section 4.1(c), by failing to afford a discharged employee the right to appeal her termination to the Commission based on an allegation of age discrimination, violates the equal protection provisions of the state and federal constitutions.

For the foregoing reasons, the ruling of the civil service commission, which granted defendant’s exception of no right or cause of action is overruled. The matter is now remanded for further proceedings consistent herewith.

REVERSED AND REMANDED.

      .New Orleans Civil Service Commission Rule II, Section 4.1(c) reads as follows:
      “A classified employee discriminated against because of his political or religious beliefs, sex or race shall file a written statement with the Civil Service Commission containing the following information:
      1. The name or names of the person or persons alleged to have committed the discriminatory act or acts.
      2. The date or dates of such act or acts.
      3. Where and in what manner such act or acts occurred.
      4. The nature of the alleged discrimination.
      5. A complaint’s statement shall be filed with the City Civil Service Commission within thirty years days of the alleged discriminatory act or acts or the last occurrence of a discriminatory act.”

      . McLaughlin v. Florida, 379 U.S. 184, 85 S.Ct. 283, 13 L.Ed.2d 222 (1964).

      . LSA-Const. Art. I, § 3 reads as follows:
      “§ 3. Right to Individual Dignity
      No person shall be denied the equal protection of the laws. No law shall discriminate against a person because of race or religious ideas, beliefs, or affiliations. No law shall arbitrarily, capriciously, or unreasonably discriminate against a person because of birth, age, sex, culture, physical condition, or political ideas or affiliations. Slavery and involuntary servitude are prohibited, except in the latter case as punishment for crime.”


text:
    GUARANTY SAVINGS ASSURANCE COMPANY v. NATIONAL AMERICAN BANK OF NEW ORLEANS, as Executor of the Succession of Seymour Weiss.
    No. 12691.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 8, 1981.
    Writ Denied Jan. 25, 1982.

      Avant & Falcon, Floyd J. Falcon, Jr., Trial Atty., Baton Rouge, for plaintiff-ap-pellee.
    Stewart & Preis, Ashton L. Stewart, Baton Rouge, and Burke & Mayer, Charles B. Mayer, New Orleans, for defendant-appellant.
    Before GULOTTA, GARRISON and BARRY, JJ.
   GULOTTA, Judge.

Defendant, National American Bank of New Orleans, as executor of the Succession of Seymour Weiss, (hereinafter referred to as the Bank), appeals from a summary judgment in favor of Guaranty Savings Assurance Company (GSA) in this action for the proceeds of a judicial sale. We affirm.

This suit was recently before us in Kaplan v. University Lake Corp., 394 So.2d 782 (La.App. 4th Cir. 1981) where we reversed and set aside a judgment maintaining an exception of lis pendens and remanded the matter for further proceedings.

The background of this protracted litigation is extensively set forth in our earlier decisjon in Kaplan, supra, and the Louisiana Supreme Court’s decision in Kaplan v. University Lake Corp., 381 So.2d 385 (La.1980). For our present purposes, we need only mention that the Bank, as executor of Weiss’s estate, obtained a judgment recognizing and enforcing a collateral mortgage against certain real property owned by GSA. While GSA’s devolutive appeal from that judgment was pending, the Bank seized and sold the property in satisfaction of the judgment. Subsequently, the Louisiana Supreme Court in Kaplan, supra, reversed the trial court’s judgment and held that the collateral mortgage note bearing against GSA’s property had prescribed and the mortgage was unenforceable. GSA subsequently filed the instant suit for the proceeds of that judicial sale.

In written reasons for the summary judgment in favor of GSA for the sale proceeds, the trial court stated:

“A review of these proceedings indicates that there are no material facts at issue. The subject matter was thoroughly discussed and determined in the appellate courts, and there remains only the question of whether or not Mover for Summary Judgment is legally entitled thereto based upon the facts already determined in prior proceedings.
The Supreme Court has clearly indicated that Guaranty Savings Assurance Company was not liable under the mortgage or under the hand note, but, pending the devolutive appeal, the property secured by the mortgage was sold leaving Mover without the property or the proceeds of the sale.
As stated, there being no showing that there is any genuine issue as to material facts, and in view of the opinions of the Fourth Circuit Court of Appeal and the State Supreme Court, the request for Summary Judgment is hereby granted.”

We adopt the above reasons as our own.

The Bank’s arguments are essentially the same as those raised in its brief and argument in Kaplan, supra, when the case was before us on the judgment maintaining the exception of lis pendens. In Kaplan, we disposed of these arguments as follows:

“... the Bank cites LSA-C.C.P. art. 3741 [footnote omitted] and argues that under the pact de non alienando of its mortgage it could foreclose against the mortgaged property in execution of its judgment against University Lake, the original debtor, *... as though it was still owned by the original debtor and in his possession.’ The Bank contends that G.S.A. as a third party possessor has no cause of action arising from the judicial sale since the foreclosure and sale of the property were in execution of the Bank’s judgment against University Lake. The Bank further argues that Kaplan v. University Lake, supra, has no bearing on our case since the Kaplan decision only dealt with G.S.A.’s liability on the hand and mortgage notes and not with the Bank’s right to enforce the mortgage against University Lake. We disagree.
The Bank’s argument concerning the pact de non alienando presupposes that a valid mortgage existed. The Supreme Court in Kaplan v. University Lake, supra, on G.S. A.’s appeal from a judgment in favor of the Bank and against G.S.A., University Lake, and International Speedways, Inc., held that the mortgage was unenforceable because the collateral mortgage note had prescribed. As stated by the Supreme Court:
‘We find and hold, therefore, that upon prescription of the collateral mortgage note, there remained no outstanding mortgage against subject property. Consequently, the mortgage herein sought to be enforced was not extant against the property on the date of G.S.A.’s purchase.’ Kaplan v. University Lake, supra, [394 So.2d] at page 391.
In view of this clear language, the Bank as executor of Weiss’ estate had no mortgage to enforce against either University Lake or G.S.A. when it foreclosed and brought about the judicial sale. Without a valid mortgage, LSA-C.C.P. art. 3741 does not apply. It is clear to us that G.S.A. is the owner of the property that has been illegally seized and sold by the Bank pursuant to a mortgage that was ultimately determined invalid by the Supreme Court.” Supra, 394 So.2d at pages 786-787.

Under the principle of the “law of the case” our prior rulings of law in Kaplan, supra, and those of the Supreme Court in its Kaplan opinion, conclusively determine the appeal now before us. See Petition of Sewerage & Water Board of New Orleans, 278 So.2d 81 (La.1973); Day v. Campbell-Grosjean Roofing & Sh. Metal Corp., 260 La. 325, 256 So.2d 105 (La.1972).

As we recognized in Kaplan, supra, when property is sold under a writ of fieri facias and the judgment is subsequently reversed after a devolutive appeal, the defendant-appellant has the remedy of suing the original judgment creditor for return of the price for which the property was sold. See LSA-C.C.P. Art. 2252; Bomarito v. Max Barnett Furniture Co., 177 La. 1010, 150 So. 2 (1933); State v. Mutual Inv. Co., 214 La. 356, 37 So.2d 817 (1948); Lisi Realty, Inc. v. Plaisance, 306 So.2d 920 (La.App. 1st Cir. 1974), writ denied, 310 So.2d 640 (1975). GSA, as owner of the property that has been illegally seized and sold by the Bank, is entitled to the sale proceeds.

For the foregoing reasons, the judgment is affirmed.

AFFIRMED.


author: BOUTALL, Judge.

text:
    Ernest N. SOUHLAS v. Charles MARCHBANKS.
    No. 12175.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 8, 1981.
    Writ Denied Jan. 25, 1982.

      Arthur F. Dumaine, New Orleans, for Ernest N. Souhlas, plaintiff-appellant.
    Andrew A. Lemeshewsky, Jr., New Orleans, for Charles Marchbanks, defendant-ap-pellee.
    Before BOUTALL, CHEHARDY and KLIEBERT, JJ.
   BOUTALL, Judge.

One month prior to a judgment of divorce terminating his marriage to Jacqueline A. Williams, Ernest N. Souhlas filed suit against her former husband, Charles March-banks, for reimbursement of child support furnished to Dianne Gail Marchbanks, a child of the marriage between Williams and Marchbanks. Marchbanks filed an exception of prescription which was maintained, dismissing Souhlas’ suit. Souhlas has appealed.

In argument, appellant bases his right to recover upon the general obligation of a parent to furnish support to his minor child, and alleges that he furnished that support because of the abandonment of the child by its father and as a matter of equity he should be reimbursed. He contends that the prescription applicable to this case is the prescription of ten years for personal actions as provided in Civil Code Article 3544. Opposed to this, the appellee contends that the prescription of three years as defined in Article 3538 of the Civil Code applies, this issue being basically an arrearage of alimony. The trial judge maintained the exception of prescription without specifying which prescription was applicable.

A preliminary issue on this appeal is the failure of the trial judge to give written reasons for judgment upon the request of the appellant. The judgment was rendered on October 1,1980, and on October 10,1980, appellant filed into the record a motion for written findings of fact and reasons for judgment. There is nothing in the record to show that that document was ever presented to the judge or that he was aware of it, and we note that the certificate of service stamped thereon is blank and not executed by mover. Opposing counsel in argument informs the court that he was entirely unaware of the existence of this document in the record. There being nothing to show that the trial judge was aware of it, we cannot say that he was required to render written reasons, and find no merit in appellant’s complaint.

The main issue on this appeal is the maintaining of the exception of prescription. We call attention to the fact that this appeal is based solely upon that exception, and we pretermit any discussion of the issues of whether Souhlas has any cause of action to seek such relief and whether he has a right of action to bring such a suit. We limit ourselves solely to the exception of prescription.

The only evidence in the record is the judgment of divorce between Charles Marchbanks and Jacqueline A. Williams rendered in the Circuit Court of Fayette County, State of Tennessee, apparently on May 15, 1959. In that judgment, Jacqueline A. Williams was given custody of the minor Dianne Gail Marchbanks, then aged three and one-half years, and Marchbanks was ordered to pay to her the sum of $40.00 per month for the support of the child. There is no note of evidence, and it would appear that the general facts in this case have been gleaned either through the pleadings or through argument of counsel. Although there is a dispute as to whether Marchbanks hid his whereabouts from the knowledge of his former wife and her new husband, or whether Williams hid her whereabouts from Marchbanks until he located his former wife and child several years later, there is no dispute to the fact that Marchbanks did not render financial support for the child after his former wife’s remarriage. The appellant argues that his furnishing of support of the child was from the ages of six to twenty during the years 1961 through 1975.

We are disposed to affirm the maintaining of the peremptory exception of prescription by the trial judge on the basic fact that there is no evidence which shows that it is erroneous. Indeed the only evidence which demonstrates an obligation of support is the judgment of divorce in 1959. Accepting appellant’s statement as correct, that he furnished support through 1975, a suit filed on February 27, 1980, is filed too late, being beyond the three year prescription provided in Civil Code Article 3538.

Accordingly, the judgment maintaining the peremptory exception of prescription is affirmed.

AFFIRMED.


author: CHEHARDY, Judge.

text:
    Gerald A. HEAP v. WEBER CONSTRUCTION COMPANY OF LOUISIANA, INC., and Douglas E. Weber, d/b/a Weber Companies.
    No. 12185.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 8, 1981.

      Adams & Reese, Frank M. Adkins, Michael D. Allday, New Orleans, for plaintiff-appellee.
    Fiasconaro & Fiasconaro, Paul S. Fiasco-naro, New Orleans, for defendants-appellants.
    Before BOUTALL, CHEHARDY and KLIEBERT, JJ.
   CHEHARDY, Judge.

Defendant Douglas E. Weber appeals sus-pensively, and defendant Weber Construction Company of Louisiana, Inc., appeals devolutively from a district court decision in favor of the plaintiff, Gerald A. Heap, and against the defendants, individually, jointly and solidarily, in the sum of $12,-490.89, with judicial interest from date of demand. The judgment also decreed that attorney fees be awarded in favor of the plaintiff and against the defendants, individually, jointly and solidarily, in the sum of $500.

The facts of the present case were accurately summarized by the district court judge in his written reasons for judgment:

“This is an action in quanti minoris to reduce the purchase price paid for a home, which was purchased by plaintiff, Gerald A. Heap, from the defendant, Weber Construction Company of Louisiana (hereinafter ‘the seller’) on March 6, 1978. Heap alleged that the seller and Douglas E. Weber d/b/a Weber Companies (hereinafter ‘Weber’) were guilty of negligently manufacturing and constructing the roof on the said house, which caused several leaks to develop and caused damage to several of the inside walls, the downstairs bathroom and other miscellaneous items. After advising the defendants of the problems incurred, Weber agreed to install a sheet metal cap over the top layer of bricks, which plaintiff contends substantially subtracted from the appearance of his home. The house continued to suffer extensive leakage through the roof; and later, on or about June 29, 1978, the house began to suffer from extensive leakage through all the windows on its Wheat Street side. Defendants were notified of this new problem and allegedly promised to send out a waterproofer to cure the problem. Instead, the brother of defendant Weber, Fred Weber, was sent out with a can of silicone and' commenced spraying the plaintiff’s home with same.
“Later, additional leakage occurred in the upstairs bedroom windows. Petitioner contacted the defendant Weber of continuing leakage in response to which Fred Weber again appeared at plaintiff’s home and sprayed additional silicone on the south side of the house.
“In November of 1978, a leak was discovered in the den ceiling near the fireplace. Fred Weber was dispatched to the home; the inspection of the attic which ensued showed rain water running along the seams of the sub-roof and running onto beams and into the den ceiling. Although a roofer was promised to be dispatched to Heap’s home, one did not appear to correct the defects.
“On or about December 3, 1978, plaintiff once again experienced severe leakage through the baseboards and window boxing of his home as well as in the den ceiling. Plaintiff, although unsuccessful in communicating with defendants by telephone, sent a certified letter on December 6, 1978, requesting the deficiencies in the house be remedied. Additional damage was sustained by plaintiff, who seeks not only a reduction in the purchase price of the home in the amount of Fifteen Thousand and 00/100 ($15,000.00) Dollars, but also seeks interest at the legal rate on the amount to which he is entitled to have the price of the property reduced.”

The defendants allege on appeal that the trial court committed error in refusing to grant the motion for continuance filed by defendants’ counsel; by casting judgment against Mr. Weber individually when it was not alleged or proven that there was privity of contract between Heap and Weber individually; in awarding damages that were excessive, and in awarding legal interest from date of judicial demand rather than from date of judgment.

The record reflects that on the day of the trial counsel for the defendants appeared, asking for a continuance, stating his client, Mr. Weber, was not present and that he did not know where he was. He stated Mr. Weber was living out of the country but that he had expected to be contacted by him the previous evening.

LSA-C.C.P. art. 1601 states a continuance may be granted in any case if there is good ground therefor. It has also been established the trial judge has wide discretion in acting upon a motion for continuance and his ruling will not be disturbed on appeal in absence of a clear showing of abuse of that discretion. Bryer Insurance Agency, Inc. v. Bruno, 261 La. 177, 259 So.2d 55 (1972). In the present case, since counsel for the defendants admitted that Mr. Weber was informed of the trial date a month in advance, his unexplained absence on the date of the trial, alone, did not mandate the granting of a continuance by the district court judge, and we can find no abuse of discretion in his refusing to do so.

Neither can this court find, as alleged by the defendants, that the damages awarded by the district court were excessive. H. E. McCoy, the building contractor accepted as an expert by the court, testified in detail regarding the work necessary to correct the water leakage in the plaintiff’s home and the damage done by that leakage. One estimate given by him immediately pri- or to trial, which is also part of the record, sets the total of these repairs at $18,013.25. The district court judge, however, chose to award damages based on an estimate tendered by McCoy a year before, amounting to $12,087.71 in proposed repair work, noting accurately in his reasons for judgment the increase resulted from including in the second estimate a complete “tuck-pointing” job, which, as McCoy testified, might not be necessary to remedy the leakage problem.

Defendants also argue the trial court erred in reducing the purchase price of the home in his reasons for judgment to $62,-500.48, rather than to $91,912.29. This court, however, finds such a mistake in notation irrelevant because the amount actually awarded by judgment for reduction in price, $12,087.71, is completely substantiated by the only expert testimony presented in the record.

Neither can this court find that, due to the duty to mitigate damages, the plaintiff’s award should be decreased. In the case of Unverzagt v. Young Builders, Inc., 252 La. 1091, 215 So.2d 823 (1968), the court stated the duty to mitigate damages is not applicable where the party whose primary duty it is to perform a contract has equal opportunity for performance and equal knowledge of the consequences of nonperformance. As established in the record, the plaintiff regularly made contact with the defendant, through letters, and through Mr. Weber’s brother, informing him of the leakage problems, the damage being caused by these problems and giving him the opportunity to repair this defect in the home; consequently, we can see no basis for penalizing the plaintiff for failing to make the needed repairs himself.

Neither can we find merit in the defendants’ argument that judicial interest should only run from the date of judgment in a quanti minoris action because such claims are unliquidated and not certain until judgment. Actions in quanti minoris are subject to the same rules as actions in red-hibition. LSA-C.C. arts. 2541 and 2542. It has also been held that the receiver of a buyer who brings a redhibitory action was entitled to interest from the date the buyer formally demanded cancellation of the purchase, not only from the date of judgment or date of judicial demand. Alexander v. Burroughs Corp., 359 So.2d 607 (La.1978).

Mr. Weber also, on appeal, urges the exception of no right of action as to him personally, doing business as Weber Companies, because, he argues, plaintiff’s only claim is against the seller and the contractor and, according to the public records of the Parish of Jefferson, Weber Construction Company of Louisiana was both the owner of the land in the subject suit and the contractor that constructed the improvements on that property in the form of the plaintiff’s home. To this exception, the defendants have attached a number of copies of various documents tending to establish the truth of these allegations.

Although this court takes issue with the defendant characterizing his exception as one of no right of action (which refers to the standing of the plaintiff), rather than one of no cause of action in relation to Weber personally, we are aware these exceptions are peremptory in nature and may be pleaded for the first time in an appellate court. Lambert v. Donald G. Lambert Const. Co., 370 So.2d 1254 (La.1979). However, this exception may only be pleaded if proof of ground of the exception appears in the record. Lambert, supra. We, therefore, are unable to consider the additional evidence, outside of the record, presented by Mr. Weber to this court, but must confine outselves to whatever proof of his arguments can be found within the boundaries of the trial court record. As noted by the trial court judge in his reasons for judgment, however, in answering the plaintiff’s request for admissions, the following statements, numbers 10 and 11, were admitted by the defendants:

“10. That defendants jointly, severally, and in solido warranted unto plaintiff, Gerald A. Heap, that the improvements found upon the property aforedescribed were free of all vices, defects, and deficiencies in construction of said property.
“11. That the defendants jointly, severally, and in solido warranted unto Gerald A. Heap that the residential improvements constructed on the property afore-described was free of such vices, defects, and deficiencies in construction thereof that might make use of said property dangerous to the health and property of plaintiff.”

Because of the above admissions and the testimony of the plaintiff at the trial on the merits that it was his understanding that Mr. Weber was the contractor of the house, the district court judge was free to conclude that Douglas Weber was in solido liable, along with the corporate defendant, for damages awarded the plaintiff in his action in quanti minoris. If Mr. Weber had evidence available tending to establish that he, personally, should be dismissed as a defendant in the present action, the time for production of such evidence was at the district court level. On examination of the record, alone, we can find no substantial evidence sufficient to overcome Mr. Weber’s admissions so that we might grant the mover’s exception in this case.

Another argument presented by Mr. Weber is that even assuming he was, individually, the contractor who constructed the subject home, it would be impossible for the plaintiff to maintain an action against him individually because there was no privity of contract between the plaintiff and Mr. Weber. This argument is also ill-founded because in the case of Media Pro. Consult., Inc. v. Mercedes-Benz of N. A., Inc., 262 La. 80, 262 So.2d 377 (1972), the court specifically stated pecuniary loss resulting from an unusable object is recoverable when there is an express warranty without privity, and it further said it could find no adequate reason for not applying the same rule and allowing recovery when there is an implied warranty without privity.

For the reasons assigned, therefore, the district court judgment is affirmed.

AFFIRMED.


author: KLIEBERT, Judge.

text:
    A-1 CONSTRUCTION COMPANY v. Mrs. Daniel H. BROWN.
    No. 12151.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 8, 1981.
    Leon C. Vial, III, Hahnville, for plaintiff-appellee.
    Donna S. Condie, Cummings & Gambel, New Orleans, for defendant-appellant.
    Before BOUTALL, CHEHARDY and KLIEBERT, JJ.
   KLIEBERT, Judge.

Mrs. Daniel H. Brown (hereafter Mrs. Brown), the defendant, contracted with A-l Construction Company (hereafter A-1), the plaintiff, for batture dirt and dozer service. A-l rendered a bill to Mrs. Brown for 31 loads of batture dirt at $30.00 per load and 3Vi hours of dozer service at $25.00 per hour for a total of $1,068.65. Mrs. Brown admitted to owing A-l for twelve loads of dirt and contends the dozer service was to be billed at $28.00 per hour rather than $25.00 per hour and hence tendered her check for $477.80. A-l refused the check and brought suit for the $1,068.65. The trial judge, stating that the sole issue was whether A-l had delivered 31 loads of dirt or 12, found as a fact that 31 loads had been delivered and rendered judgment in favor of A-l as prayed for. Mrs. Brown brought this appeal.

When this case was called for hearing neither party had filed a brief nor responded to the call for arguments. The Court was then prepared to dismiss the appeal as an abandoned appeal, pursuant to Rule VII, Sec. 5(b) Uniform Rules. Thereafter the appellant filed a brief. In the interest of judicial expediency, therefore, we consider the merits of the appeal.

At the trial, Mr. Michael Gassen, the manager of A-l testified as to the sand delivered and the dozer services rendered which was the basis for the bill of $1,068.65 to Mrs. Brown. Additionally, Mr. Alvin Gordon, Sr., an employee of A-l testified that he personally delivered the 31 loads of batture dirt and submitted his handwritten notes as to the dates and number of loads delivered. Mrs. Brown testified that she was not home during the day, she would count the number of loads when she arrived from work. She testified that she only counted twelve loads.

Pure and simply, the issue is whether to accept the testimony of Mr. Gassen and Mr. Gordon or that of Mrs. Brown. The trial judge chose to believe the testimony of Mr. Gassen and Mr. Gordon and found as a matter of fact that 31 loads of batture dirt were delivered. In the absence of manifest error, we cannot substitute our judgment for that of the trial Court. Canter v. Koehring, 283 So.2d 716 (La.1973). We find no manifest error here and accordingly affirm the judgment of the trial court. All costs of appeal to be borne by the appellant.

AFFIRMED.


text:
    Judith Thibodaux, Wife of Robert L. BETTENCOURTT v. Robert Louis BETTENCOURTT.
    No. 12176.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 8, 1981.

      Vezina & Associates, Roy J. D. Gattuso, Nel F. Vezina, Gretna, for plaintiff-appel-lee.
    John M. Coman, Jr., New Orleans, for defendant-appellant.
    Before BOUTALL, CHEHARDY and KLIEBERT, JJ.
   KLIEBERT, Judge.

Robert Bettencourtt (the husband) filed a rule to reduce alimony pendente lite and child support of $450.00 and $350.00 per month respectively, which he was previously ordered to pay to Judith Thibodaux Bet-tencourtt (the wife). The wife then filed a rule to increase the alimony and child support.

When the hearing concluded the trial judge said:

“Based on the testimony of the parties, the Court finds that Mrs. Bettencourtt is no longer entitled to receive alimony from Mr. Bettencourtt — that is eliminated right now.
The Court finds that Mr. Bettencourtt is able to pay and that the children need the sum of $400.00 a month per child and that is the award of the Court.”

The husband brings this appeal contending the trial judge erred because $800.00 per month child support was beyond the ability of the husband to pay and more than the children were shown to need for their support.

Trial judges have wide discretion in setting alimony and child support payments and his award will not be disturbed unless there is a clear abuse of discretion. Youngblood v. Youngblood, 329 So.2d 896 (La.App. 2nd Cir. 1976) and the cases cited therein. We find no abuse of that discretion here.

At the time of the hearing the wife was earning $650.00 per month gross from her recently acquired employment. On direct examination the husband testified he was a plant operator grossing $1,725.00 per month with a net of $1,515.00. On cross examination, it was shown his gross earnings were $25,032.00 and his net earnings were $23,-930.00. The husband’s monthly expense sheet filed in evidence by him showed expenses of $1,697.00 per month of which $800.00 was for the support of his family under the court order issued prior to the one here on appeal. The validity of some of the listed expenses were seriously challenged during the hearing. Considering the husband’s income and his expenses, the $800.00 child support fixed by the court is less than fifty percent of the husband’s income rather than in excess of 50% as contended by the defendant and, as stated by the trial judge, the husband could afford to pay $800.00 per month.

The expense schedule submitted in evidence by the wife showed total expenses of $1,511.00. Of this sum a total of $340 (clothing $40.00, doctor $30.00, lunch $30.00, babysitting $240.00) were expenses directly attributable to the children and $110.00 were expenses directly attributable to the wife, leaving a balance of $1,050.00 attributable to the wife and two children. Under the circumstances of this case, dividing the same in half is fair. Thus, the expenses attributable to the children would be $865.00 ($340.00 plus $525.00) or $432.50 per child. Under these circumstances, a court award of $400.00 per child seems fair and equitable to us.

The occurrence which necessitated an increase in the child support award is the change in the earnings and expenses of the parties. In order to earn income and thus absolve the husband of paying alimony pen-dente lite for the support of his wife, the wife was required to employ people to care for the children while she worked. Thus, when the wife’s need for alimony pendente lite was eliminated, the children’s need for a greater amount for their support was increased because the care given to the children by the wife was now assigned to a third party. While the wife does not have to be compensated for that care, the third party does. Accordingly, the judgment of the lower court is affirmed. All costs of appeal to be borne by the husband.

AFFIRMED.


author: KLIEBERT, Judge; SCHOTT, Judge,

text:
    HEARTY BURGER OF HARVEY, INC., Bruce A. North and Robert E. McBride v. Rudy P. BROWN.
    No. 12030.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 8, 1981.
    Bruce A. North and Douglas A. Kewley, Malony, Nolan, North, Riess & Hall, New Orleans, for plaintiffs-appellees.
    Terrence J. Lestelle, Amato & Creely, Gretna, for defendant-appellant.
    Before REDMANN, SCHOTT, BARRY, KLIEBERT and KLEES, JJ.
   KLIEBERT, Judge;

In March, 1977, Hearty Burger of Harvey, Inc. (hereinafter Hearty Burger), Bruce A. North and Robert E. McBride, plaintiffs-appellees, agreed to sell to Rudy P. Brown, defendant-appellant (hereinafter Brown), certain restaurant equipment. After acceptance of the equipment by Brown, a dispute arose as to price. (There was no dispute as to what equipment was to be transferred.) Hearty Burger contended that Brown agreed to assume the existing indebtedness, including past due interest, of Hearty Burger at the Guaranty Bank and Trust Company, which indebtedness was secured by a collateral chattel mortgage on the equipment. When Hearty Burger made demand for payment, Brown refused, contending that the loan payoff, which included $17,490.00 in principal and some $1,850.00 in past due interest, was higher than he had agreed to pay. Upon non-payment of the note, Guaranty Bank and Trust demanded payment from Hearty Burger, as maker, and North and McBride, as endorsers. Brown made a $6,000.00 payment to Hearty Burger who applied same against the amount due to the bank. North and McBride paid the note, then, along with Hearty Burger, filed suit against Brown. Plaintiffs sought $20,223.97 as the amount due in principal and interest on the outstanding indebtedness, along with $10,-000.00 each for North and McBride for embarrassment, humiliation, and damage to and/or loss of credit standing. Brown answered, contending that the payoff of said loan was higher than the figure initially given to him by plaintiffs. After trial on the merits, judgment was rendered in plaintiffs’ favor in the amount of $17,490.00, less a credit to Brown of $6,000.00 for amounts previously paid. Defendant appeals, and plaintiffs have answered the appeal, seeking an increase in the judgment for interest paid and for additional damages for North and McBride as prayed for.

On appeal, Brown relies on one specification of error: the trial court erred in concluding that plaintiffs-appellees had met their burden of proving by a preponderance of the evidence that a contract had been confected between the parties at a fixed price. We do not agree.

Robert McBride testified to having met with Brown in early March, 1977 to discuss sale of the equipment, and the price discussed was the amount owed to the bank, including interest. McBride had further told Brown that the amount on the principal was between $17,000.00 and $18,000.00, and the outstanding interest was approximately $1,700.00-$1,800.00. McBride further testified Brown had said he wouldn’t let the interest problem hamper the deal. McBride acknowledged Brown had paid approximately $6,000.00 on the contract.

Bruce North testified the agreement was for him and McBride to sell the equipment to Brown for the outstanding indebtedness, including interest (which he claimed to-talled approximately $1,850.00). Furthermore, North claimed Brown never did contact him to claim a disagreement as to price, and North admitted Brown had made a payment of $6,000.00 on the indebtedness.

Russell Haas, President of Guaranty Bank, testified to having met with Brown and McBride on June 3, 1977 to arrange financing of the agreement. Haas stated there were no questions raised nor was there any dispute as to the outstanding principal being paid by Brown ($17,940.87), but the only dispute was who was to pay the outstanding interest ($1,835.00).

Robert D. Owens, a former partner of Brown, testified to having negotiated the price and sale with the plaintiffs personally, and that he had thought the purchase price was approximately $13,000.00. However, he also stated that Brown was present at one of the meetings and Brown had concluded the negotiations.

Rudy Brown denied ever having agreed to pay off any loans regardless of what the outstanding indebtedness was, and further denied ever having discussions with the plaintiffs regarding the purchase price. Brown claimed Owens had handled the negotiations and had informed him the purchase price was $13,000.00.

On rebuttal, both McBride and North denied ever discussing a purchase price with Owens, further denied there being a purchase price of $13,000.00, and both stated the only item Brown ever complained about was the outstanding interest.

In order to perfect a contract of sale, there must be an agreement as to price and object. La.C.C. Arts. 2439, 2456 and 2464. It is not essential that the specific sum of the sales price be stated at the time of contracting as long as the price may be ascertained by computation. Benglis Sash & Door Co. v. A. P. Leonards, 387 So.2d 1171 (La.1980). It is well settled in Louisiana that where the price may be ascertained by computation of definite facts that said price shall be deemed as “certain” so as to satisfy Civil Code Articles 2439, 2456 and 2464. General Finance Corporation of New Orleans v. Harrell, 188 So.2d 211 (La.App. First Cir. 1966).

In the instant case, there was ample evidence to support the finding that an agreement was confected for the purchase price of $17,940.87, which was the principal amount due on the equipment at the time of the agreement. The testimony of McBride, North and Haas supports the trial court’s finding in this regard. Even though both Brown and Owens placed the figure at $13,000.00, their testimony was obviously discounted by the trial court in light of the contradiction between their testimony as to who had actually handled the negotiations for Brown.

Given the foregoing, we hold that the trial court was correct in ruling that a contract of sale had been confected between the parties and that the purchase price agreed to by both parties was $17,940.87, which amount was the outstanding principal as of the date of the agreement.

Appellees, in their answer to the appeal, argue that the trial court erred in failing to award the full purchase price consisting of both principal and outstanding interest. While there was sufficient evidence to find an agreement to pay the outstanding principal indebtedness, there was not sufficient evidence to prove an agreement to pay outstanding interest indebtedness also. As Mr. Haas testified, the only disagreement which he observed between the parties involved was who would pay the outstanding interest. As stated in Benglis Sash & Door Co. v. A. P. Leonards, supra, “the initial thing is that there be a meeting of the minds (as opposed to a disagreement) as to price.” (at 1173). Since there was no meeting of the minds regarding payment of the outstanding interest, the trial court was correct in holding that this was not part of the purchase price.

Appellees also seek to have the trial court judgment amended insofar as it failed to award damages to plaintiffs for humiliation, embarrassment and damage to business reputation. They argue that said injuries would not have occurred had Brown maintained his part of the bargain by paying off their obligation.

The trial court found only that the purchase price was the amount owed on the principal obligation. It did not hold that Brown had agreed to assume any indebtedness or other obligation owed by North and McBride, and we concur in this holding. Accordingly, the obligation was still owed by North and McBride and Brown is not answerable in damages for their failure to fulfill their pre-existing obligation.

For the foregoing reasons, the judgment of the District Court is affirmed.

AFFIRMED.

SCHOTT and REDMANN, JJ., dissent with reasons.

SCHOTT, Judge,

with whom RED-MANN, Judge, joins, dissenting:

As stated in the majority opinion, plaintiffs have consistently maintained that they agreed to sell the restaurant equipment to defendant for the total of principal ($17,-940.87) plus interest ($1,856.80). Defendant has maintained, with equal consistency, that the agreed price was $13,000.00.

We respectfully disagree with the statement by our colleagues that the evidence supports the trial court’s finding that an agreement was confected for the purchase price of $17,940.87. On the contrary, there was no evidence to that effect.

Basic contract law requires a meeting of the minds of the purchaser and seller on the price of the thing for a sale to be confected. Since neither party has ever taken the position that the agreed price was $17,940.87 the trial court could not properly conclude that was the price agreed upon.

The judgment should be reversed and the sale annulled.


author: DUFRESNE, Judge.

text:
    PARISH OF JEFFERSON v. Heirs of William Mason SMITH and Jarrell E. Godfrey, Jr., and Harry T. Howard, III, Successors in Title to the Heirs of William Mason Smith.
    No. 12042.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 8, 1981.
    Charles L. Chassaignac, Chaffe, McCall, Phillips, Toler & Sarpy, New Orleans, for defendant, appellant.
    Hubert A. Vondenstein, Parish Atty., Gretna, for plaintiff, appellee.
    Before SAMUEL, BOUTALL and DU-FRESNE, JJ.
   DUFRESNE, Judge.

This matter arises from an expropriation proceeding brought by the Parish of Jefferson to acquire title to two portions of ground from the defendants for construction of a vehicular crossing. After some negotiations, the Parish filed this suit seeking to expropriate the property.

The matter was heard on the merits and the trial court rendered judgment awarding defendants the sum of $5,528.55, computed on the basis of 50$ per square foot. The record reveals the property was carried on the tax roll at an assessed value of $2.08 per square foot for the years 1978 and 1979 (the two years prior to trial) and that those taxes were paid. In addition, the judgment assessed the Parish with the payment of $500.00 for the expert testimony of the defendant’s appraisers and all costs of the proceedings, exclusive of attorney’s fees.

The defendants have been paid the sum of $5,528.55 pursuant to the court order. The defendants have appealed.

On appeal, there are three basic issues before us:

1.) Whether the Parish Council is es-topped from expropriating property at less than the value established by the Tax Assessor;
2.) "Whether the amount of the trial court’s award is supported by the evidence; and
3.) "Whether the trial court is required to hold an evidentiary hearing to determine the amount of an expert’s fee.

Regarding the first issue, appellants argue the Louisiana Constitution of 1974 requires all real property be assessed by the Tax Assessor at a fixed percentage of its fair market value. Article 7 Section 18 of the Louisiana Constitution of 1974 provides in part as follows:

“(D) Valuation.
Each assessor shall determine the fair market value of all property subject to taxation within his respective parish or district except public service properties, which shall be valued at fair market value by the Louisiana Tax Commission or its successor. Each assessor shall determine the use value of property which is to be so assessed under the provisions of Paragraph (C). Fair market value and use value of property shall be determined in accordance with criteria which shall be established by law and which shall apply uniformly throughout the state.”

The Louisiana Legislature passed certain implementing requirements which are found in Louisiana Revised Statute 47:1957 B. Thus:

“B”. All property subject to taxation shall be listed and assessed at the proper percentage of its fair market value or use value as required by the constitution and laws of this state.”

The jurisprudence of Louisiana has held that assessed valuations at best can be considered a factor in determining value, but cannot be controlling.

Appellant’s argument as to estoppel is not applicable here.

The second issue concerning the amount of compensation awarded by the trial judge is purely a factual matter. A review of the evidence presented to the trial court does not substantiate that the trial judge’s award is manifestly erroneous and accordingly, it will not be disturbed here on appeal.

As to the third issue, in accordance with LSA-R.S. 13:3666 there is no requirement that the trial court must hold a separate evidentiary hearing on the amount of an expert’s fee. The trial court’s award of $500.00 expert fee to the defendant’s appraiser is within that court’s discretion and we find no abuse thereof.

For the reasons hereinabove expressed, the judgment appealed from is affirmed.

AFFIRMED.


text:
    Robert J. BODET v. Aaron BROUSSARD, Robert B. Evans, Jr., Lloyd F. Giardina, Willie Hof, Ken Hollis, James E. Lawson, Jr., J. T. “Butch” Ward & Council of the Parish of Jefferson.
    No. 12058.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 8, 1981.
    Writ Denied Jan. 25, 1982.

      Barham & Churchill, Mack E. Barham and David A. Marcello, New Orleans, for plaintiff-appellee Robert J. Bodet.
    R. Gray Sexton, amicus curiae, Baton Rouge, for The Louisiana Commission on Ethics for Public Employees.
    H. A. Vondenstein, Parish Atty., James Arceneaux, Gretna, for defendants-appellants Aaron Broussard, et al.
    Before SAMUEL, BOUTALL and DU-FRESNE, JJ.
   DUFRESNE, Judge.

Bodet v. Broussard, et al. our docket No. 12058 is on appeal from a judgment granting the plaintiff a preliminary injunction prohibiting individual members of the Jefferson Parish Council and the Council itself from taking any steps interfering in any manner with plaintiffs exercise of his office as a member and chairman of the Greater New Orleans Expressway Commission. (Pontchartrain Causeway)

Bodet v. DeAmore, et al., 407 So.2d 813 our docket No. 12130, is an appeal from a judgment granting a preliminary injunction prohibiting individual members of the Personnel Board of the Parish of Jefferson and the Personnel Board itself from taking any steps interfering in any manner with the plaintiff’s exercise of his office as a member and chairman of the Greater New Orleans Expressway Commission. The two appeals were consolidated for hearing in this court. However, because of the different issues involved, we will consider the cases in separate opinions.

By Resolution # 40310 dated September 10, 1980, the Jefferson Parish Council removed the plaintiff from the Commission, indicating that he had violated the State Code of Ethics and the Parish Code of Conduct. The Council also adopted Resolution # 40313 appointing Francis Nelson to replace the plaintiff on the Commission.

Plaintiff’s removal was based on three alleged charges:

1.) Conflict of interest—
In December 1979, plaintiff sponsored and voted in favor of a resolution on the Commission appointing an Insurance Advisory Committee which included his brother, Jean P. Bodet. It is alleged that the plaintiff is a partner in the insurance business with his brother.
2.) Nepotism—
During the summer of 1979, one of the plaintiff’s sons was employed by the Commission.
3.) Nepotism—
During the summer of 1980, another of the plaintiff’s sons was employed by the Commission.

Following this action by the Council, the plaintiff filed suit against the individual members of the Council and the Council itself for an injunction to enjoin them from implementing the provisions of the aforesaid resolutions.

A hearing was held on the preliminary injunction on September 18, 1980 and the trial court granted the plaintiff a preliminary injunction and enjoined the defendants accordingly. From this judgment the defendants have appealed devolutively.

The action of the trial judge at the preliminary injunction hearing was based solely on the principle that the State Law (LSA-R.S. 42:1101 et seq.) pre-empts and he sustained objection to hearing evidence and facts.

The 1979 Legislature adopted Act 443, which act became effective April 1, 1980 as the “Code of Governmental Ethics” (LSA-R.S. 42:1101 et seq.)

Act 443 of the 1979 Legislature in accordance with the mandate of Article X Section 21 of the 1974 Constitution established the State Code of Governmental Ethics.

Plaintiff has presented arguments concerning the establishment of the Code of Governmental Ethics and its application to all public employees.

However, since the trial judge based his decision solely on the pre-emption of this State Law he did not conduct a full hearing.

We disagree for two basic reasons, namely:

1.) Some acts complained of by the defendants took place prior to the effective date of the State Act which was April 1, 1980.

2.) We disagree with pre-emption as a matter of law.

Prior to April 1, 1980, the State Code of Governmental Ethics was not in effect and since April 1, 1980 we feel there can be equal jurisdiction between the State Code and other laws.

We do agree that the State Code of Governmental Ethics (Act 443 of 1979) can only be administered, interpreted and enforced by the State Commission on Ethics— however, this jurisdiction need not be exclusive. The Parish cannot enforce the provisions of the State Code in accordance with the mandate of the 1974 Constitution as expressed in Article X Section 21; however, we find no prohibition from the Parish having their own Code of Conduct and enforcing it. Accordingly, it is possible for the two to have equal but separate jurisdiction that is enforceable by the proper authorities independently of the other.

In reviewing the constitutional convention debates regarding the adoption of the proposed Code of Ethics section of the 1974 Constitution, we find the delegates fully understood that Article X Section 21 applied to all public employees. However, neither in the 1974 Constitution nor in Act 443 of 1979 do we find any prohibition against a parish having a Code of Ethics or Code of Conduct with similar jurisdiction with the State Code of Governmental Ethics.

We agree that only the State Commission on Governmental Ethics can enforce the provisions of the State Code but that does not prohibit a parish from having a Parish Code of Conduct and having it enforced by the Parish Government or its designated agency. Both can co-exist and function even though in some areas there may be equal or similar jurisdiction.

Likewise, we feel that the authority to hire must not be separated from the responsibility and the authority to fire.

The Articles of Incorporation for the Greater New Orleans Expressway Commission state an appointee to the Commission may be removed for cause by act of not less than two-thirds of the members of the Jefferson Parish Council.

The Jefferson Parish Council in its Resolution # 40310 removing the plaintiff from the Commission did not differentiate and enunciate whether he was being dismissed for alleged violation of the State Code of Ethics or the Parish Code of Conduct. We cannot pass on the validity of this resolution since this record comes to us on a preliminary injunction and the record is insufficient.

For the reasons hereinabove expressed, we conclude that the State Commission on Ethics for public employees has the jurisdiction to enforce the provisions of the State Code of Ethics; however, the Jefferson Parish Council is not prohibited from enforcing its own rules and more particularly the authority granted under the Articles of Incorporation for the Greater New Orleans Expressway Commission.

Accordingly, we affirm the judgment of the trial court granting a preliminary injunction in so far as it applies to the attempted removal of the plaintiff under the State Code of Ethics. However, in so far as it applies to the Parish Code of Conduct, we reverse and set aside and remand this matter to the trial court for further proceedings consistent with this decision.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED.


text:
    Robert J. BODET v. Philip S. DeAMORE, Phillippi T. StPee, John J. Weigel, & Personnel Board of the Parish of Jefferson.
    No. 12130.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 8, 1981.
    Writ Denied Jan. 25, 1982.
    Barham & Churchill, Mack E. Barham and David A. Marcello, New Orleans, for plaintiff-appellee Robert J. Bodet.
    R. Gray Sexton, amicus curiae, Baton Rouge, for The Louisiana Commission on Ethics for Public Employees.
    Ross P. LaDart, Gretna, for defendants-appellants Philip S. DeAmore, et al.
    Before SAMUEL, BOUTALL and DU-FRESNE, JJ.
   DUFRESNE, Judge.

Bodet v. DeAmore, et al. our docket No. 12,130 is an appeal from a judgment prohibiting individual members of a Personnel Board of the Parish of Jefferson and the Personnel Board itself from taking any steps interfering in any manner with the plaintiff’s exercise of his office as a member and chairman of the Greater New Orleans Expressway Commission.

The appeal of Bodet v. Broussard, et al., 407 So.2d 810, No. 12058 of our docket was consolidated for hearing in this court.

The plaintiff, following receipt of information that the Personnel Board of the Parish of Jefferson was going to initiate an investigation regarding his position on the Greater New Orleans Expressway Commission, filed suit against the individual members of the Personnel Board and the Personnel Board itself for an injunction enjoining them from enforcing or taking any action or acting in any manner to disturb his exercise of the power of his office. A temporary restraining order was issued by the trial court.

Following an October 9,1980 hearing, the trial court granted a preliminary injunction and enjoined the defendants accordingly. The defendants have appealed from this judgment.

The action of the trial judge at the preliminary injunction hearing was based solely on the principle that the State Law (LSA-R.S. 42:1101 et seq.) preempted the authority of the Personnel Board and relied on the judgment rendered in the case of Bodet v. Broussard et al., 407 So.2d 810 No. 12058 of our docket and did not conduct a full hearing.

We disagree with the issuance of a preliminary injunction in this case. Under the Home Rule Charter and Code of Conduct, the Jefferson Parish Personnel Board has the authority to investigate and determine if a public employee has violated the Code of Conduct.

After investigation, the Personnel Board may hold public hearings and the specific procedure to be followed is outlined by Article II — Sec. 13-58 of the Code of Conduct. Likewise, the Personnel Board is granted authority to report and recommend action to the Jefferson Parish Council.

The issuance of the preliminary injunction in this case, we feel, is improper since it prevents any investigation by the Personnel Board. The Personnel Board has received a complaint and should not be enjoined from conducting its investigation to determine whether any action is necessary.

Accordingly, we reverse the judgment granting a preliminary injunction as it applies to the Personnel Board and individual members of the Personnel Board and remand this matter to the trial court for further proceedings consistent with this decision.

REVERSED AND REMANDED.


text:
    NEW SOUTH COMMUNICATIONS, INC. v. WEST BROTHERS OF DeRIDDER, LA., INC., d/b/a West-Gibson Co., No. 41, Dave Blackman and West-Gibson of Pascagoula, Mississippi, Inc.
    No. 53097.
    Supreme Court of Mississippi.
    Dec. 16, 1981.
    Rehearing Denied Jan. 6, 1982.
    John V. Woodfield, Gulfport, for appellant.
    Hall, Callender & Dantin, Maurice Dan-tin, Columbia, for appellees.
   Appeal from Chancery Court, Jackson County, Robert H. Oswald, Chancellor.

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

AFFIRMED IN PART, REVERSED IN PART AND RENDERED.

SMITH and ROBERTSON, P. JJ., and WALKER, BROOM, BOWLING and HAWKINS, JJ., concur.