author: CHIASSON, Judge. SHORTESS, Judge, LEAR, Judge, EDWARDS, Judge,

text:
    Rosemary CASTLE, Individually and On Behalf of Her Minor Children, Dwayne Castle, Age 12, Joseph Castle, Age 11, and Tosha Castle, Age 3, v. PRUDHOMME TANK TRUCK LINE, INC. and United States Fidelity & Guaranty Company.
    No. 14500.
    Court of Appeal of Louisiana, First Circuit.
    May 25, 1982.
    Rehearing Denied Aug. 24, 1982.

      Harold J. Lamy, New Orleans, for plaintiffs and appellants.
    Robert D. Morvant, Thibodaux, for defendants and appellees.
    Before EDWARDS, LEAR, SHORTESS, SAVOIE and CHIASSON, JJ.
   CHIASSON, Judge.

Plaintiff-appellant, Rosemary Castle, individually and on behalf of her three minor children, appeals the judgment of the trial court dismissing her suit for death benefits under the Workmen’s Compensation Act which she had filed against Prudhomme Tank Truck Lines, Inc. and its insurer, United States Fidelity and Guaranty Company, defendants-appellees.

Plaintiff-appellant brought suit as dependent members of the family of Alexander Davis who was killed in an automobile accident while in the course and scope of his employment with defendant-appellee, Prud-homme Tank Truck Lines, Inc. Defendants-appellees filed third party actions against: Bonnie McGee, individually and on behalf of her three minor children; Rachel Bertrand, individually and on behalf of her minor child; and Mary Ann Calloway. The third party demands allege: that Davis had lived with, but had never married Bonnie McGee and Rachel Bertrand; that he was the natural father of Bonnie McGee’s three children and of Rachel Bertrand’s child; and that Davis had married and, at the time of his death, was legally separated from Mary Ann Calloway, with whom he had no children. Third party defendants did not answer these suits, and default judgments were confirmed against them.

The trial court held that plaintiff-appellant did not sufficiently establish that she and her children were dependent upon the earnings and support of Davis and dismissed her suit. Plaintiff-appellant perfected the instant appeal and alleges that the trial court erred in concluding that plaintiff-appellant could not recover death benefits because they bore no legal relationship to the decedent and that plaintiff-appellant could not be considered dependent upon the decedent since they were receiving adequate money and other income to provide for themselves.

The record reveals plaintiff-appellant was living with, but never married to Alexander Davis, the decedent. Her three minor legitimate children of her former marriage to Joseph Castle also lived with her and Davis at the time of Davis’ death. They had lived together for approximately sixteen months and had not lived with anyone else during this period of time. For the last six months, they shared a trailer which was in the name of Rosemary Castle and monthly notes of $200.00 were paid by her in cash. Mrs. Castle testified that she was and had been employed by Picadilly Cafeteria as a cook from which she received approximately $140.00 a week, and that she and Davis would pool their incomes and pay their bills, except for twenty-five or thirty dollars each pay check which Davis retained for himself. The light bill was in her name and the gas bill was in Davis’ name. Her former husband was employed and was under a court order to pay $60.00 per child per month for the support of the three minor children. The evidence shows that Mrs. Castle did in fact receive support payments from her former husband although the record does not disclose the exact amount paid. Additionally, Davis had not obtained a legal divorce from his former wife and no actions had been taken by him to adopt her three children. Mrs. Castle also testified that, with the exception of separate savings accounts which she alleges was used to purchase the trailer and furniture, neither she nor the decedent had bank accounts and that they paid all of their bills by cash. In addition to all of the household bills, Mrs. Castle stated that she and Davis shared equally in the caring for and the rearing of her three children.

Plaintiff-appellant does not benefit from the conclusive presumption of dependency provided for in La.R.S. 23:1251. The question of actual dependency, in whole or in part, then becomes a matter of proof with the onus resting upon the claimant. McDermott v. Funel, 258 La. 657, 247 So.2d 567 (1971). Therefore, it was the responsibility of plaintiff-appellant to prove actual dependency upon the earnings of the decedent at the time of his death by a preponderance of the evidence. La.R.S. 23:1252. Louisiana jurisprudence has firmly established the principle that actual dependency, in whole or in part, and the extent thereof, is a question of fact which must be proved by a preponderance of credible evidence. La.R.S. 23:1252; McDermott v. Funel, supra; Hurks v. Bossier, 359 So.2d 1114 (La.App. 3rd Cir. 1978), reversed on other grounds, 367 So.2d 309. The trial court held that plaintiff-appellant had not carried her burden of proof. Specifically, the trial court, in its written reasons for judgment concluded that, “[Although plaintiff contends that she and the children were dependent upon the earnings and support of decedent, the Court does not believe it has been sufficiently established that to be true.”

No documents were introduced into evidence to establish appellant’s earnings. She only testified from one pay check stub and it was later brought out in other testimony that this stub was for less than forty hours per week, although appellant admitted she did, at times, earn overtime pay.

From the sketchy record before us, and even applying the most liberal interpretation to the Compensation Act, we are unable to conclude the trial judge erred in holding that appellant had not borne her burden of proving dependency upon the decedent’s earnings.

Although it is true that the trial court cited additional reasons for dismissing appellant’s suit, we need not comment on their correctness since they do not change his finding of fact on which we base this opinion.

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

AFFIRMED.

SAVOIE, J., concurs.

SHORTESS, J., concurs and assigns reasons.

LEAR, J., dissents and assigns reasons.

EDWARDS, J., dissents and assigns reasons.

SHORTESS, Judge,

concurring.

I concur, but feel that the plaintiff failed to prove that she and her children satisfied the requirements of La.R.S. 22:1253, which provides in pertinent part:

No person shall be considered a dependent, unless he is a member of the family of the deceased employee....

I realize that the Louisiana Supreme Court in Henderson v. Travelers Insurance Company, 354 So.2d 1031 (La.1978),' held that a concubine was entitled to benefits as a dependent member of a deceased insured worker’s family, and that in Patin v. T. L. James and Company, Inc., 218 La. 949, 51 So.2d 586 (1951), a concubine’s nephew living in the household was held to be a dependent and entitled to benefits as a member of the deceased wage earner’s family. But the facts here are inapposite. In Henderson, the plaintiff and George Henderson, the deceased wage earner, had lived together as man and wife for eleven years in a stable, loving relationship. Plaintiff took his name and was totally dependent upon him. In Patín, the minor, admittedly not a child of the deceased employee, had lived with and been dependent upon him for almost twelve years as his adopted child.

Here, Alexander Davis was married to Mary Anne Callaway from whom he was legally separated. No children were born of their marriage. Davis had three illegitimate children by Bonnie McGee, namely Antoinette Davis, Lee Davis, and Carolyn Ann Davis. He had a fourth illegitimate child by Rachel Bertrand, namely, Ezra Bertrand. At the time of his death, he had only resided with Rosemary Castle for sixteen months. Plaintiff’s three minor children were issue of her marriage with Joseph Castle, from whom she was divorced, but Castle was under court order to provide child support to his children.

In Henderson, Justice Tate indicated that:

The status as concubine arises when a man and a woman live together in a permanent relationship as husband and wife, although without benefit of matrimony or a putative marriage. See e.g.; Succession of Franz, 232 La. 310, 94 So.2d 270 (1957); Succession of Jahraus, 114 La. 456, 38 So. 417 (1905); Succession of Keuhling, 187 So.2d 520 (La.App. 3d Cir. 1966); Note, 32 Tul.L.Rev. 127 (1957). As we stated in Gauff v. Johnson, 161 La. 975, 977, 109 So. 782, 783 (1926): “ * * * the concubine must not be confounded with the courtesan, or even what is ordinarily called a mistress. She is a wife without a title.”
We held that a man and a woman living together in this relationship constitute a family for purposes of the workmen’s compensation act; therefore, their children are entitled to compensation benefits if the wage earnes is killed at work, as dependent members of the family. Thompson v. Vestal Lumber & Mfg Co., 208 La. 83, 22 So.2d 842 (1945).
354 So.2d at 1033.

Plaintiff, in my opinion, failed to prove that she and Davis lived together in a permanent relationship which could be considered a family under the Worker’s Compensation Act. Plaintiff and Davis did not hold themselves out to be husband and wife; they had lived together for only sixteen months; neither plaintiff nor her children used Davis’ name; Davis did not claim plaintiff or her children as dependents on his 1978 income tax returns. The trailer home was purchased in plaintiff’s name only. The relationship, in my opinion, appeared to be a wholly informal one from which either party might freely withdraw at any time. Davis had withdrawn from at least two earlier arrangements with Bonnie McGee and Rachel Bertrand. It appears to me that the Legislature only meant to provide protection for wage earner’s dependents when they were bound to him by stronger ties than appear here.

I concur.

LEAR, Judge,

dissenting.

The trial court found that plaintiff could not recover for two reasons. First, plaintiff and her children were not “legal dependents” of decedent, because no legal relationship existed between them, and, second, even if a legal relationship did exist, plaintiff and her children were not actually dependent upon the decedent, both of which are required by LSA-R.S. 23:1231. Thus, the issues on appeal are whether plaintiff and her children were legal dependents, wholly or partially dependent upon decedent’s earnings at the time of his death, and if so, the amount of workmen’s compensation benefits to be paid to them.

Initially, it must be determined if any others are preferentially entitled to claim these workmen’s compensation benefits, because if so, plaintiff is not entitled to them for herself or her children. Henderson v. Travelers Insurance Company, 354 So.2d 1031 (La.1978). The evidence clearly establishes that, except for plaintiff and her children, no one was living with, being supported by or in any way dependent upon decedent at the time of his death. Thus, no one other than claimants, including the third party defendants, was preferentially or in any case entitled to claim these workmen’s compensation benefits.

The undisputed facts show that plaintiff, her three minor children and decedent shared a trailer and lived together as a family for approximately sixteen months prior to decedent’s death. The funds for purchasing and furnishing the trailer were contributed by both plaintiff and decedent. They pooled their weekly incomes, from which they paid the monthly trailer notes, their utilities, food and other expenses. With the exception of twenty-five or thirty dollars, decedent gave plaintiff all his weekly earnings in order to pay their expenses and run their household. At times, decedent would endorse his paycheck and give it to plaintiff to cash. Neither plaintiff nor decedent lived with anyone else during this sixteen-month period, and, although decedent was still legally married, they discussed being married in the future. They shared equally in caring for and raising plaintiff’s three minor children, and decedent treated plaintiff’s children as his own and took the two older boys fishing and hunting in his spare time. They also discussed the possibility of decedent’s adopting plaintiff’s children.

In the case of Thompson v. Vestal Lumber & Mfg. Co., 208 La. 83, 22 So.2d 842 (1945), the Supreme Court defined the term “legal dependent” as follows:

.. “The word ‘legal’ in the term ‘legal dependent’ . .. does not mean legitimate — as distinguishing legitimate from illegitimate relations of the deceased employee. The term ‘legal dependents’ means dependents who are legally entitled to compensation under the statute. The term is applicable to actually dependent members of the family of the deceased, as well as the surviving relations who are conclusively presumed' to have been dependent upon his earnings for support.”

In Thompson, the court held that a man and woman living together, but not married to each other, constitute a family for purposes of the workmen’s compensation act and that their illegitimate children were entitled to compensation benefits as dé-pendent members of the family. In Patin v. T. L. James & Co., 218 La. 949, 51 So.2d 586 (1951), the court held that even a concubine’s nephew living in the household, if dependent on the wage earner, is entitled to workmen’s compensation benefits as a member of his family.

In Humphreys v. Marquette Casualty Co., 235 La. 355, 103 So.2d 895 (1958), the court refused to allow compensation benefits to the concubine of the deceased employee. However, in the later case of Henderson v. Travelers Insurance Co., supra, the Supreme Court again addressed this issue. The court in Henderson concluded that a concubine was entitled to workmen’s compensation benefits and stated that:

“... In the absence of indication that the legislature desired to exclude concubines from the dependency benefits otherwise allowable under the terms of the statute, we conclude that we erred in Humphreys in importing moral unworthiness as a criterion for eligibility for compensation benefits, and thus excluding dependent concubines alone from the compensation benefits to which all dependent members of the deceased wage earner’s family household are entitled by statute. We therefore overrule Hum-phreys. [Footnote omitted and emphasis by the court.]”

In Henderson, as in this present case, the claimant had three children by a prior marriage, who lived in their home. Although the issue was not directly addressed by the court (because the children were no longer dependent upon the decedent at the time of his death), nothing in Henderson indicates that plaintiff’s minor children, if actually dependent upon the decedent at the time of his death, should be excluded from claiming workmen’s compensation benefits. The trial court’s interpretation and application of the term “legal dependent” in this case is erroneous. Clearly, plaintiff and her children were members of the family of the deceased employee and, if they were actually dependent on decedent, are entitled to claim workmen’s compensation benefits. Thompson v. Vestal Lumber & Mfg. Co., supra; Patin v. T. L. James & Co., supra; Henderson v. Travelers Insurance Company, supra; LSA-R.S. 23:1231 and 1253.

Concerning the claimants’ actual dependency, the trial court concluded that they were not dependent upon the decedent for support, because plaintiff was gainfully employed at the time of decedent’s death and earning and receiving adequate money and other income to provide for herself and her children. This conclusion is contrary to the evidence and clearly wrong.

In the case of Duos v. Gravier & Harper, 185 So. 665 (La.App. 1st Cir. 1939), a deceased minor gave all of his weekly earnings, in the amount of $12.00, to his parents, and his wages were pooled with those of his father, who also earned $12.00 per week. These two amounts were used to support the parents, the deceased minor and another minor child, who composed the family. Although the father was earning and contributing to the family’s support the same amount as the deceased minor child, we found that the parents were dependent upon the decedent’s earnings.

Here it is stipulated that decedent earned $344.00 per week and the evidence showed that plaintiff earned approximately $140.00 per week. The evidence was clear and un-contradicted that plaintiff and decedent pooled their incomes and from this fund paid their trailer notes, paid their bills, purchased food and other household necessities and even bought clothes for plaintiff’s children. Plaintiff used decedent’s automobile for transportation. The record also indicates that plaintiff began receiving approximately $100.00 a month in food stamps after Davis died. Also, decedent’s weekly income was more than twice that of plaintiff’s. Under these circumstances, it is clear that plaintiff and the children were actually dependent upon Davis’ earnings.

In determining whether the parents were wholly or only partially dependent on the decedent for support, we stated in Duos that:

“It is obvious that the parents were not wholly dependent on the decedent for support, as the father contributed the same amount to the common fund as did the deceased son; but it appears equally as obvious that they were dependent on the decedent’s whole income, which, aside from the fact that the wages of a minor lawfully belong to the parents, was willingly and cheerfully contributed by him. [Emphasis by the court.]
“It is our view that the term legal dependents who are only partially dependent under the provisions of the section mean dependents who are dependent on part only of the employee’s weekly earnings. Thus, where it appears that the decedent contributed all or substantially all of his earnings to the family’s support, his legal dependents were wholly dependent upon him. See also Lajaunie v. Rex Ice Cream Co., 62 So.2d 203 (La.App. 1st Cir., 1952); Coulon v. Anderson Bros., 67 So.2d 117 (La.App. 1st Cir., 1953).”

Here decedent retained only twenty-five or thirty dollars from his salary each week, which he used to purchase his lunch at work. Even this amount could be considered a household expense, and in reality a contribution to the support of the family. However, for the reasons expressed below, it is unnecessary to determine whether plaintiff and her children were wholly, or only partially dependent upon Davis.

Under the provisions of R.S. 23:1232(8), payments to plaintiff and her children as “other dependents” are allocated as “thirty-two and one-half percentum of wages for one, and eleven percentum additional for each such dependent in excess of one, subject to a maximum of sixty-five percentum of wages for all, regardless of the number of dependents.” If wholly dependent, plaintiff and her children would be entitled to the maximum of sixty-five percent of decedent’s wages or $223.60 per week. Even if the amount retained by Davis is found to be thirty dollars per week, and this amount is not considered as having been contributed to the family, Davis’ weekly contribution would be $314.00, which is slightly over ninety-one percent of his weekly earnings. Thus, if only partially dependent, plaintiff and her children would be entitled to ninety-one percent of the maximum of sixty-five percent of decedent’s wages or $202.96 per week. However, all workmen’s compensation benefits are subject to the further maximum contained in R.S. 23:1202, which amount plaintiff admits to be $148.00 per week. Thus, plaintiff and her three minor children are each entitled to receive workmen’s compensation benefits in the amount of $37.00 per week for a total of $148.00 per week.

For the foregoing reasons, I therefore respectfully dissent.

EDWARDS, Judge,

dissenting.

I respectfully dissent for the reasons assigned by Judge Lear. However, I believe that plaintiff and her children were only partially dependent upon the decedent. See Malone and Johnson, Louisiana Workmen’s Compensation Law, § 310. As Judge Lear points out, though, it is irrelevant whether claimants were wholly or partially dependent, because in either event they would be limited to the statutory maximum of $148.00 per week.

I therefore respectfully dissent.

      . R.S. 23:1231:
      “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.”

      . R.S. 23:1251:
      “The following persons shall be conclusively presumed to be wholly and actually dependent upon the deceased employee:
      (1) A surviving spouse upon a deceased spouse with whom he or she is living at the time of the accident or death.
      (2) A child under the age of eighteen years (or over eighteen years of age, if physically or mentally incapacitated from earning) upon the parent with whom he is living at the time of the injury of the parent, or until the age of twenty-three if enrolled and attending as a full-time student in any accredited educational institution.”

      . R.S. 23:1252:
      “In all other cases, the question of legal and actual dependency in whole or in part, shall be determined in accordance with the facts as they may be at the time of the accident and death; in such other cases if there are a sufficient number of persons wholly dependent to take up the maximum compensation, the death benefit shall be divided equally among them, and persons partially dependent, if any, shall receive no part thereof.”


source: Caselaw Access Project

author: ELLIS, Judge: LANIER, J.,

license: Public Domain

text:
    Ronald J. SPILLMAN, et al. v. The CITY OF BATON ROUGE.
    No. 14528.
    Court of Appeal of Louisiana, First Circuit.
    May 25, 1982.
    Rehearing Denied Aug. 24, 1982.

      John L. Avant, Floyd J. Falcon, Jr., Baton Rouge, for plaintiffs-appellees Ronald J. Spillman, et al.
    L. Edwin Greer, and George W. Lang, II, Asst. City Attys., Shreveport, for amicus curiae City of Shreveport.
    Charles M. Raymond, Lynn E. Williams, Baton Rouge, for defendant-appellant The City of Baton Rouge.
    Camille F. Gravel, Jr. and Anna E. Dow, Baton Rouge, for amicus curiae AFL-CIO.
   ELLIS, Judge:

This is a class action brought on behalf of certain full-time and former firemen in Baton Rouge, seeking recalculation of accrued longevity pay and overtime and holiday pay earned during the two years preceding the filing of the suit, and payment of the amounts thereof allegedly due.

Plaintiffs allege that the City of Baton Rouge has refused to compute longevity pay as provided by R.S. 33:1992; has failed to give holiday pay as provided by R.S. 33:1999; and has failed to utilize state supplemental pay paid under R.S. 33:2001, et seq., and longevity pay under R.S. 33:1992 in computing overtime pay under R.S. 33:1994.

The City of Baton Rouge contends that it is not obliged to follow the above statutory provisions because of its “Home Rule Charter” and because of the provisions of Article VI, Section 6 of the Constitution of 1974, which provides:

“The legislature shall enact no law the effect of which changes or affects the structure and organization or the particular distribution and redistribution of the powers and functions of any local governmental subdivision which operates under a home rule charter.”

Plaintiffs argue that Article VI, Section 6, supra, is modified by the provisions of Article VI, Section 14 of the Constitution of 1974, which provides:

“No law requiring increased expenditures for wages, hours, working conditions, pension and retirement benefits, vacation, or sick leave benefits of political subdivision employees, except a law providing for civil service, minimum wages, working conditions, and retirement benefits for firemen and municipal policemen, shall become effective until approved by ordinance enacted by the governing authority of the affected political subdivision or until the legislature appropriates funds for the purpose to the affected political subdivision and only to the extent and amount that such funds are provided. This Section shall not apply to a school board.”

The City filed a peremptory exception of no cause of action which was overruled. By amended answer, the City pled peremptory exceptions of prescription and estoppel by laches, and asked for credit for amounts paid by it under its own longevity plan should R.S. 33:1992, and the other statutes involved herein, be found applicable.

After trial on the merits, the -trial judge found the action to be a proper class action; that the City of Baton Rouge is subject to Article VI, Section 14, supra, and therefore has been subject to the provisions of R.S. 33:1992,1994 and 1999 since the adoption of the Constitution of 1974, as of January 1, 1975; that all claims for benefits which accrued more than one year prior to filing the suit had prescribed; that firemen were due extra compensation for overtime and holiday pay; that state supplemental pay and longevity pay should be included in the base for computation of overtime and holiday pay; and awarded amounts due as a result of the above findings. The plea of estoppel by laches was denied.

The City has appealed from the judgments below, assigning as error the holdings of the trial court that R.S. 33:1992, 1994 and 1999 are applicable to Baton Rouge; that the principle of estoppel by laches is not applicable; and that the instant suit is a true class action.

We shall consider the assignments of error in inverse order. Defendant argues that this suit does not meet the criteria for a class action. Articles 591 and 592 of the Code of Civil Procedure provide:

“Art. 591. A class action may be instituted when the persons constituting the class are so numerous as to make it impracticable for all of them to join or be joined as parties, and the character of the right sought to be enforced for or against the members of the class is:
“(1) Common to all members of the class; or
“(2) Secondary, in the sense that the owner of a primary right refuses to enforce it, and a member of the class thereby becomes entitled to enforce the right.”
“Art. 592. One or more members of a class, who will fairly insure the adequate representation of all members, may sue or be sued in a class action on behalf of all members.”

In Stevens, v. Board of Trustees of Police Pension Fund, 309 So.2d 144 (La.1975), the court elaborated on the above articles as follows:

“They show that, in sanctioning class actions, the legislature has imposed the following requirements: (1) a class so numerous that joinder is impractical; (2) the joinder as parties to the suit of one or more parties who are (a) members of the class, and (b) so situated as to provide adequate representation for absent members of the class; and (3) a ‘common character’ between the rights of the representatives of the class and the absent members of the class.”

The court further stated that:

“Thus, that different recoveries are sought, based upon the same factual transaction and same legal relationship, was not intended to defeat a class action.”

Defendant’s main argument on this issue is that the members of the class lack a “common character” because the amount due to each member of the class would be different. This, of course, is not a basis for the rejection of a class action under the Stevens case, supra.

Defendant further argues that join-der of all members of the class is not impracticable, as evidenced by the fact that the original 28 plaintiffs- grew to over 350 by joinder, making more than half of the class nominal plaintiffs. Defendant states in its brief that there are 561 members of the class, which indicates that there are over 200 members who are not parties to the suit. We do not find that defendant has shown that it would be practical to join this great a number of class members so as to defeat the class action.

We are of the opinion that the class action is particularly appropriate in a case of this kind, in which the class is large, the communality of interest is complete, and the recovery of each member of the class may be easily computed.

Defendant’s next contention is that the trial judge erred in holding that estoppel by laches does not bar all recovery by plaintiffs.

The record reveals that, although plaintiffs may have been entitled to the extra pay sought herein ever since January 1, 1975, when the Constitution of 1974 became effective, this suit was not filed until September 20, 1977. The trial court sustained an exception of prescription as to all claims for extra pay due before September 20, 1976, one year before the suit was filed.

In Bradford v. City of Shreveport, 305 So.2d 487 (La.1974), the court said:

“. .. an unreasonable delay by aggrieved public employees in asserting monetary claims against a public body may relieve that body of liability under the doctrine of laches. The jurisprudence has based this doctrine upon equitable considerations peculiar to public bodies, which operate within the constraints of each fiscal year, to require that such claims be promptly asserted in order that public revenues normally channeled in the claimant’s direction might not be irretrievably diverted to other lawful public purposes, thereby upsetting the orderly fiscal processes of government. See also Devillier v. City of Opelousas, 247 So.2d 412 (La.App.3d Cir. 1971) and authorities cited therein. Thus, in order to invoke the doctrine of estoppel by laches as to the unprescribed portion of plaintiffs’ claims, defendant must prove (1) unreasonable delay by the plaintiffs in presenting those claims that arose within one year prior to suit and (2) substantial prejudice to or upset of the city’s fiscal affairs.”

The question presented, therefore, is whether there has been an unreasonable delay in presenting the demands for the extra pay due. Ronald Spillman, one of the plaintiffs, testified that he met with the mayor of Baton Rouge several times, as well as with other public officials, to discuss the extra pay which is the object of this suit. The mayor testified that he had no recollection of any such discussions. In any event, there is no evidence of a formal demand or protest having been made prior to the filing of this suit.

Otha L. Schofield, Finance Director of Baton Rouge, testified that as of the time of the trial, in September, 1980, there were no funds either allocated to or available for the payment of the extra pay demanded in this suit. He further testified that there had been a budget surplus in excess of two million dollars in 1978 and of several million dollars in 1979, but that these funds had been budgeted in later years, and therefore were no longer available. He was unable to say if there would be a surplus in 1980.

Considering the foregoing circumstances, we are of the opinion that there has been ample opportunity, since the filing of this suit, for Baton Rouge to provide for the possibility that the plaintiffs herein might prevail. Nor do we find it an unreasonable delay to bring suit for wages within the prescriptive period provided by law. We therefore find that plaintiffs are not prevented by the doctrine of estoppel by laches from collecting that part of the extra pay sought herein against which prescription has not run.

We turn now to the constitutional questions presented. Because of the conclusion reached below, we pretermit consideration of the argument that there is a conflict between Sections 6 and 14 of Article VI of the Constitution of 1974.

Article XIV, § 26 of the Constitution of 1974 provides as follows:

“Except as otherwise specifically provided in this constitution, this constitution shall not be retroactive and shall not create any right or liability which did not exist under the Constitution of 1921 based upon actions or matters occurring prior to the effective date of this constitution.”

Under LaFleur v. City of Baton Rouge, 124 So.2d 374 (La.App. 1st Cir. 1960), and its progeny, R.S. 33:1992, et seq., did not apply to the City of Baton Rouge. Therefore, the right to the benefits provided thereby did not exist for the plaintiffs in this case under the Constitution of 1921, based on those statutes, which were, of course, enacted prior to the Constitution of 1974. It therefore appears clear that, under the above provision, it was not intended that those rights would automatically be bestowed by the adoption of the Constitution, without some additional action on the part of the legislature. No such action has been taken. We are of the opinion that without such legislative action, the Constitution of 1974 did not operate to extend the application of the law as it existed prior to January 1, 1975.

We further note that Article VI, § 14, supra, seems to relate to the effect of future legislation rather than to the interpretation of existing legislation, which further supports our conclusion, reached above.

The judgment appealed from is therefore reversed, and there will be judgment herein dismissing plaintiffs’ suit at their cost.

REVERSED AND RENDERED.

COVINGTON and COLE, JJ., dissent.

ON APPLICATION FOR REHEARING

Rehearing Refused.

COVINGTON and COLE, JJ., dissent from denial of rehearing.

LANIER, J.,

dissents from denial of rehearing.

The decision in this case was based on a Louisiana Constitutional provision that was neither briefed nor argued by the parties. In my opinion, fundamental fairness would dictate that the parties be given an opportunity to do so.


author: CHEHARDY, Judge.

text:
    Wendell P. HARRIS, Jr., and Freddie D. Harris v. Alvin G. BAHAM, Albaro Martinez and Bruce A. North, in his capacity as Testamentary Executor of the Succession of William Bruce North, Jr.
    No. 5-29.
    Court of Appeal of Louisiana, Fifth Circuit.
    June 8, 1982.
    Rehearing Denied Aug. 17, 1982.

      Gary & Field, Russell L. Dornier, Baton Rouge, for plaintiffs-appellees.
    Molony, Nolan, North, Riess & Hall, Bruce A. North, Douglas A. Kewley, New Orleans, for Alvin G. Baham and Bruce A. North, in his capacity as Testamentary Executor of the Succession of William Bruce North, Jr., defendants-appellants.
    Before CHEHARDY, KLIEBERT and CURRAULT, JJ.
   CHEHARDY, Judge.

This is a lawsuit by Wendell P. Harris, Jr., a former partner of the defendants, to recover on a promissory note they gave him as payment for the purchase of his partnership interest. The defendants reconvened, alleging the plaintiff breached his fiduciary duty to them and that his conduct vitiated all agreements between the parties. Further, they sought to hold him liable for debts incurred by the partnership after the date his partnership interest terminated.

After trial of the matter, the district court ruled in favor of the plaintiff, granting him judgment in the amount of the promissory note, plus interest, attorney’s fees and costs. The reconventional demand was dismissed.

The defendants then filed a motion for new trial. In denying that motion, the trial judge stated, “This Court agrees that Wendell Harris owed a high duty to refrain from obtaining any personal advantage over his partners. Finding no breach of his duty, this Court must deny the Motion for New Trial.” Defendants have appealed.

The partnership, entitled “Woodland Terrace, Ltd.,” was formed in April 1972 by Albaro Martinez, Wendell Harris, Jr., Alvin Baham and W. Bruce North, Jr. Each partner had a 25% interest, and each was listed in the articles of partnership as both a general partner and a limited partner. The partnership agreement delineated no specific duties for the individual partners, and stated the purpose of the partnership to be “acquiring, owning, improving, operating, managing or otherwise controlling real estate for the account of itself and for the beneficial interest of others.”

The underlying reason for the formation of the partnership was to obtain financing for development of an apartment complex in Baton Rouge, to be called Woodland Terrace Apartments. Partner Albaro Martinez was to be contractor on the project, through his construction company, Villa Homes. The partnership arranged interim financing for the project, and construction began in April 1972. By March 1973, the project was substantially complete and the city of Baton Rouge issued permits for partial occupancy.

During construction of the apartment complex, Wendell Harris was employed by Villa Homes for six or eight months as a $200-a-week laborer on the jobsite. In December 1972, his job was terminated by Jim Brown, Villa Homes’ job superintendent. In January 1973, Harris sold his partnership interest to the other three partners. The sale was conditioned upon the purchasers’ obtaining permanent financing for the property in the amount of $1.8 million. In exchange he received a cash payment plus two notes, for a total of $50,000 consideration. In addition, Harris received a hold-harmless and indemnification agreement from the partners.

In December 1973, Harris was contacted by one or more of the partners and was asked to renegotiate the sale of his interest, for they had been unable to obtain permanent financing in the amount planned. He agreed, and was given a new hold-harmless and indemnification agreement, $4,000 cash and an $18,000 promissory note, which is the note made the basis of this lawsuit. The note was due-on December 28, 1974; demand for payment was made in January 1975; and suit was instituted in September 1976.

The reason underlying the defendants’ refusal to pay the note is the discovery of extensive problems in the construction, requiring repairs costing approximately $102,-000. On appeal, the basic position of the defendants is that Harris, who lived in Baton Rouge and worked on the jobsite every day until his termination in December 1972, either knew or should have known of the deficiencies in the construction. They contend the sale of his partnership interest to them, without disclosure of the construction problems, was fraudulent and a breach of his fiduciary duty to the partnership. They accuse him, in effect, of profiting at their expense.

Alvin Baham was the only defendant partner available to testify at trial, since North was dead and Martinez was absent. According to Baham, Martinez had suggested in early planning for the complex that the contractor’s performance bond be waived, saying he would hire Harris to work on the job and there would not be any need for a bond. Baham testified his intention in making Harris a partner was so they could have someone in Baton Rouge to look after their interests. (Baham and North were residents of the New Orleans area.) He felt everyone’s interest would be protected by having two partners (Martinez and Harris) on the jobsite.

Baham himself was not in the construction business and had never been involved in a construction project. He admitted he never discussed details about the project regarding the specifications, although he visited the site about every six weeks and saw Martinez, Harris and Brown, the job superintendent, on those visits.

Baham testified he did not learn about the changes made in the specifications until the spring of 1974, when he began taking a more active interest in the complex because of their problems in finding tenants. Oscar Kramer, a new manager of the complex, first brought the deficiencies to Baham’s attention.

Baham said he had looked to Harris as a check and balance on Martinez, because he felt that Harris, in looking after his own interest, would be looking out for Baham’s as well. He admitted he never contracted with Harris to construct the apartments or to oversee the construction. He stated he had discussions with Harris as a partner to be sure everything was done in accord with the plans and specifications, but he could not recall the substance of those conversations. According to Baham, he understood — through Martinez — that Harris initiated the movement to buy out Harris’ interest in the partnership.

Harris testified that he was a licensed real estate broker, but had never worked on or been around construction such as this, and did not know anything about construction. He said he never read the plans and specifications for the project, and as far as he knew the construction was good. He knew there was no insulation in the walls and ceilings, but did not know it belonged there; he did not know what grades of lumber were used, or what sizes of flooring should have been used. He testified that he assumed he had been made a partner because they wanted somebody in Baton Rouge to represent them and to look after the project indirectly; however, he thought the architect was supposed to be inspecting the project. He testified it was not his job to keep an eye on anything. He denied that he ever represented to any of the other partners (meaning North and Baham) that the project was being built in accord with the plans and specifications.

Harris testified further that he sold his partnership interest, at Martinez’ request, after Martinez’ job superintendent terminated his job because, “I feel like I had been treated, you know, not consulted or anything like this, I figured, you know, just go ahead and sell it, sell my part.” He also denied that he had any authority at all to represent the partnership. He could not recall signing the building contract with Martinez, but admitted the signature on it was his. Similarly, he identified his signature on the Notice of Acceptance, but could not recall signing it. He stated he had nothing to do with the project after termination of his partnership interest, despite the fact that the Notice of Acceptance, which he apparently signed, was dated two months after he sold his interest. He could not explain how this happened. To his knowledge, he testified, he did not have the authority to sign such a document.

James E. Brown, Martinez’ job superintendent, testified by deposition that Wendell Harris worked as a laborer on the job, stocking Sheetrock and moving lumber. Brown said it was Martinez’ job to insure the building was built in accord with the plans and specifications, and it was Martinez who made the changes from the specifications. Brown knew of no responsibility on the part of Harris for changes; as far as Brown was concerned, Harris had no power to make changes in anything. Brown was aware of the changes Martinez was making, and questioned some of them, but Martinez had final approval.

The architect for the project, Thomas Gilbert, testified his engagement as architect was limited to drawing up the plans and specifications, and his contract did not include supervision of the construction. He testified that where the contractor is also an owner and is in control of the property, the architect has little control over the project other than to insure it meets state and city codes. As long as the building is structurally efficient and meets city codes, the architect’s duty to his client has been met, he said. Under these circumstances, he stated, he does not feel it necessary to comment on changes made in the specifications, unless they are violations of code requirements.

On appeal, defendants contend first that the sale of Harris’ interest should be rescinded due to an error of fact as to the principal quality of the object (the apartment complex). Baham testified that when he agreed to buy out Harris’ interest he thought he was buying a project built in accord with the specifications.

LSA-C.C. art. 1823 states:

“Errors may exist as to all the circumstances and facts which relate to a contract, but it is not every error that will invalidate it. To have that effect, the error must be in some point, which was a principal cause for making the contract, and it may be either as to the motive for making the contract, to the person with whom it is made, or to the subject matter of the contract itself.”

In order for a mistake or error to invalidate a contract, it is necessary that the error be in some point which was a principal cause for making the contract, and that the other party was apprised, or had reason to know, that such point was the principal cause for making the contract. Talley v. Blake, 322 So.2d 877 (La.App. 1st Cir. 1975).

Defendants have confused the two different contracts involved in the construction of the apartment complex. One contract was a partnership for the mutual financial advantage of the partners; the other was a contract with a builder to build an apartment complex that would be of sufficient quality to bring in tenant occupancy at projected levels insuring financial profit to the partnership.

A project built in accord with the specifications may have been the motive in the partnership’s contract with Villa Homes for construction of the project. However, the principal motive in buying Harris’ interest in the partnership, we infer from the totality of the evidence, was to obtain for the remaining three partners a larger share of the anticipated profits.

Further, if “a project built in accord with the specifications” was the defendants’ principal motive, this was not adequately communicated to Harris.

Defendants next contend that Harris owed a fiduciary duty to his partners which he breached because he knew or should have known of the deficiencies in construction. Alternatively, they contend he is guilty of “negligent ignorance” because he had actual knowledge of elemental facts but failed to inquire into their significance.

Unquestionably, Louisiana law imposes a duty on a member of a partnership to conduct no activity contrary to his fiduciary duty and which is prejudicial to the partnership. LSA-C.C. art. 2809. The trial judge concluded Harris had not breached this duty. This is a factual finding which this court may not reverse unless it is clearly wrong. See Canter v. Koehring Company, 283 So.2d 716 (La.1973), and its numerous progeny.

We find no manifest error in the trial judge’s conclusion. The burden of proof was upon defendants to prove fraud on Harris’ part. While he was on the job-site every day, his testimony—which the trial judge obviously found credible—establishes that he had no special knowledge of construction. He was unaware of the requirements of the specifications, or of deviations therefrom. The defendants were equally capable of noting unauthorized changes.

Although Baham testified he expected Harris to serve as a check on Martinez, there is no indication he ever communicated or discussed this expectation with Harris.

Defendants had a year between the making of the first note, and the substitution for it by the second note, within which to discover the project had not been built according to the specifications. During that year, Harris was no longer involved in the project. There is nothing to indicate he obtained knowledge of the deviations from the specifications prior to accepting the second note.

Indeed, as plaintiff contends in his brief, by the time defendants restructured their buy-out of his partnership interest, they should have had more knowledge about the completed project and financial condition than did Harris.

For the foregoing reasons, we conclude that the promissory note was given for good and valid consideration and, therefore, we affirm the judgment of the trial court.

AFFIRMED.

      . Freddie D. Harris, the other plaintiff, is the wife of Wendell Harris and joined in the suit as a plaintiff because the promissory note is an asset of the marital community.

      . North died before trial of the matter and Bruce A. North, Testamentary Executor of the Succession of W. Bruce North, Jr., was substituted in his place.

      . Plaintiff-appellee disputes that these were “repairs,” and contends rather they were simply items from the original construction left unfinished in March 1973, when Brown, the job superintendent, left the job.

      . Martinez was served with the lawsuit but never answered, and could not be located to testify at trial. However, his deposition, filed in the record of another proceeding arising out of the building of the apartments, was submitted into evidence.

      . William L. Bowman, the defendants’ expert in structural design, testified he found the following changes from the specifications, and that all these substitutions were a downgrading from the specifications:
      SPECIFICATIONS SUBSTITUTION COST DIFFERENTIAL
      (all less than
      original price
      under contract)
      brick firewalls concrete block $15,000
      ceramic tile in bath-
      rooms vinyl & wood-base
      tile 4,900
      catch basins and drain-
      age pipes in parking
      eliminated 5,200
      5-ply built-up roofing 3-ply 53,600
      copper tube termite
      treatment system plastic tube
      SPECIFICATIONS SUBSTITUTION COST DIFFERENTIAL
      (all less than
      original price
      under contract)
      1" rigid insulation 12,800
      pea gravel concrete in
      second story floors eliminated 47,200
      weatherstripping eliminated 3,800

        %" plywood roof
      sheathing W plywood 38,400
      94" plywood floors %" plywood 57,600
      # 2 grade lumber utility grade 88,000
      insulation in floors
      and walls eliminated between
      first and second
      floors; substan-
      tially reduced in
      roofs and walls 28,600
      bar cabinets eliminated 12,800
      certain inner doors eliminated 4,800