author: CHEHARDY, Judge.

text:
    Ethel Tatman McGOVERN v. Wilson Joseph TATMAN, Sr.
    No. 12239.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 12, 1982.
    Rehearing Denied March 19, 1982.

      Oestreicher & Whalen, Winston W. Pur-vis, New Orleans, for plaintiff-appellant.
    Stephen V. Vallot, Kenner, for defendant-appellee.
    Before BOUTALL, CHEHARDY and KLIEBERT, JJ.
   CHEHARDY, Judge.

Plaintiff, Ethel Tatman McGovern, appeals a district court decision in favor of plaintiff and against the defendant, Wilson Joseph Tatman, Sr., in the sum of $2,000 in child support arrearages together with legal interest from the first day of June, 1977 until paid and $150 in attorney fees.

The record reflects that plaintiff and defendant were married in 1954 and four children were born of the marriage. On November 7, 1967 judgment was rendered in favor of Tatman and against Mrs. McGovern decreeing an absolute divorce “a vin-culo matrimonii.” The judgment also ordered that the custody of all four children be granted to Mrs. McGovern, and Tatman was ordered to pay child support in the amount of $300 per month.

On July 1, 1980, evidence was taken in the district court on the child support ar-rearage rule. Tatman testified that at the time of the hearing all four children had reached the age of majority. He said he stopped giving Mrs. McGovern child support in 1969, when he alleges she refused to support the children, but he added that he had never brought any legal proceedings to have the judgment of November 1967 amended.

Tatman stated the 18-year-old child had been living with him since February of 1980, that he carries medical insurance on the children and that he has supplied them with groceries from the grocery store which he owns. Although Tatman said he had been excused by the court from paying child support, there is no evidence of this in the record of the present case. He also admitted that since 1977 he has made no child support payments. He said, however, he has paid the tuition of the children since they started school.

Mrs. McGovern testified that Tatman has never complied with the judgment ordering him to pay $300 per month child support. She stated she never paid Tatman rent for living in the house belonging to him (as a result of their community settlement agreement) because she had understood the home was hers. She said, however, she never had an agreement with Tatman, either oral or written, that she would excuse his child support obligations in lieu of rent payment, tuition payment or in any other fashion. In regard to her 17-year-old son who recently went to live with Tatman, she said she did not ask him to leave home, but he did so voluntarily.

In giving his reasons for judgment orally from the bench, the district court judge stated:

“I find you in arrearage on your child support for one child for a period of three years in a total amount of twenty-seven hundred dollars, determined at seventy-five dollars a month of his prorata of the child support, for one child at seventy-five dollars a month for one year for a total of nine hundred dollars, a total of thirty-six hundred less a credit of sixteen hundred on the Social Security payment. You owe her two thousand dollars. The rule is absolute in the amount of two thousand dollars.”

The plaintiff now appeals the judgment on the ground the district court judge was in error in retroactively discharging the defendant from part of the arrears in child support which had accumulated over the three years prior to the hearing. We agree and reverse.

The court specifically stated in Halcomb v. Halcomb, 352 So.2d 1013 (La.1977), at 1015-1016:

“Although not necessarily exclusive, an acceptable procedure for reduction or modification is to proceed by contradictory motion to have the amount of future alimony reduced, modified or terminated. Cf. La.Code Civ.Pro. art. 3945.
“In Pisciotto v. Crucia, 224 La. 862, 71 So.2d 226 (1954), the question was answered as follows:
‘The jurisprudence is well settled that a judgment for alimony, as to the amount that has become past due, is the property of him in whose favor it has been given, and is protected against alteration or annulment except by the method and for the causes prescribed by law, Louisiana Code of Practice, Article 548; Snow v. Snow, 188 La. 660, 177 So. 793; Williams v. Williams, 211 La. 939, 31 So.2d 170; Gehrkin v. Gehrkin, 216 La. 950, 45 So.2d 89; Wainwright v. Wainwright, 217 La. 563, 46 So.2d 902; that the right to receive such alimony in a lump sum is not waived by plaintiff’s failure to make periodic demands on the defendant, Gehrkin v. Gehrkin, supra; and that liability cannot be avoided by simply claiming that the alimony was not due, since a reduction of alimony or a discharge from the obligation to pay may be granted only from and after the time when it is sought, by suit or in answer to a suit to enforce payment. Article 232, LSA-Civil Code; Snow v. Snow, supra, 188 La. at page 670, 177 So. 793, Gehrkin v. Gehrkin, supra:
“Until modified, therefore, the judgment awarding alimony is a determination of the rights of the parties and has acquired the authority of the thing adjudged. La.Code Civ.Pro. arts. 1841-42. Nevertheless, in another sense an alimony judgment is not final in that a modification, reduction or termination of such a judgment may be sued for. La.Civ.Code art. 160, 232. See also Wright v. Wright, 189 La. 539, 179 So. 866 (1938). In the absence of such a suit, however, the judgment cannot be altered or modified, Cotton v. Wright, 193 La. 520, 190 So. 665 (1939); Williams v. Williams, supra, except in certain instances where the award is terminated by operation of law. An example of an automatic revocation of alimony is when an award in favor of a wife is revoked when she remarries. La. Civil Code art. 160. Also, alimony pen-dente lite is terminated by the signing of a final judgment of divorce when the divorce decree makes no mention of future alimony. White v. Morris, 236 La. 767, 109 So.2d 87 (1959). However, unless automatic reduction, modification or termination is provided for by operation of law, the award remains enforceable notwithstanding that a cause for reduction may have occurred which would, upon proper suit, warrant such a reduction. Support for this rule is found in a proper regard for the integrity of judgments. Such a regard does not condone a practice which would allow those cast in judgment to invoke self-help and unilaterally relieve themselves of the obligation to comply. Any other rule of law would greatly impair the sanctity of judgments and the orderly processes of law. To condone such a practice would deprive the party, in whose favor the judgment has been rendered, of an opportunity to present countervailing evidence, and at the same time deny the judge an opportunity to review the award in light of the alleged mitigating cause which had developed since its rendition.”

In Halcomb the husband contended the wife could not sue to collect any arrearages in child support payments on behalf of children who had reached the age of majority, and the court addressed the issue of whether the husband had the right to reduce the in globo child support award proportionately as each of the four children arrived at the age of majority or became emancipated. In addition to the above, in pronouncing that the husband had no right to do this, the court also cited LSA-C.C. art. 232, which states:

“When the person who gives or receives alimony is replaced in such a situation that the one can no longer give, or that the other is no longer in need of it, in whole or in part, the discharge from or reduction of the alimony may be sued for and granted.”

(Emphasis ours.)

Additionally, the court stated, citing Cignoni v. Cignoni, 139 La. 978, 72 So. 707 (1916), that reduction or discharge from a judgment condemning one to pay alimony must be sued for by the party against whom the judgment was rendered.

In disposing of Miller v. Miller, 321 So.2d 318 (La.1975), and Bernhardt v. Bernhardt, 283 So.2d 226 (La.1973), as relied upon by the husband in Halcomb (and which cases are also relied upon by the defendant in the present case), the court in Halcomb also said at 1016-1017:

“The husband relies principally upon this Court’s decisions in Miller v. Miller, 321 So.2d 318 (La.1975) and Bernhardt v. Bernhardt, 283 So.2d 226 (La.1973). In the Miller case the wife was seeking to have determined and declared executory the arrearage of an in globo award for alimony awarded to her and for support of three children. The trial court found that she had remarried and that one of the children had become fully emancipated by marriage. The trial court determined the arrearage and prorated the in globo award equally between the wife and children but disallowed claims for past due alimony by the wife subsequent to the date of her remarriage. On appeal to the First Circuit that part of the judgment disallowing any past due alimony to the wife after the date of her remarriage was affirmed, but the Court of Appeal reversed the judgment insofar as it terminated the award on a pro rata basis for past due support money to one of the children because he had attained the age of majority. The effect of this Court of Appeal decree was, in effect, to allow the wife to collect past due support for a child who had attained majority because the husband had not sued for a reduction.
“On the husband’s application certiorari was granted. No writs were applied for by the wife and we did not consider the correctness of the Court of Appeal judgment terminating alimony in her favor as of the date of her remarriage; nor was the validity of the “in globo” nature of the award in question before this Court. In deciding the case we held that when a minor becomes fully emancipated by age or by marriage, his mother may no longer sue to have determined and made execu-tory past due awards of child support from the father for the support of the child.
“Insofar as that decision is in conflict with the pronouncements in this opinion, it cannot be approved. We agree that the wife may no longer institute original proceedings for the support of a child over whom she had custody after the child has reached majority; nor can she seek an increase of an award for the child’s future support after the child has reached majority. But this effect of a child’s majority does not apply to a motion by the mother to whom the award was made for the child’s support to have a child support award in arrears determined and made executory. The latter situation is distinguishable from the former in that an initial suit for support or a suit to increase a past award seeks to initiate a new claim on behalf of the adult child when the law has declared him capable of administering his own affairs and no longer entitled to child support; whereas, the latter situation involves an effort by the party to whom the award is due (the wife, not the child) to have determined and declared executory unpaid sums due as child support in a judgment of court in her favor rendered during the child’s minority.
“Bernhardt v. Bernhardt, 283 So.2d 226 (La.1973) is distinguishable from the ease at bar. There the husband filed a rule against his former wife for the reduction or termination of alimony and child support payments awarded to her in a divorce judgment. She answered, praying for an increase in both awards. One of the children had become a major in the meantime. In the holding that is pertinent to the issue before us in the case at bar, the Bernhardt Court held that the wife has no standing to claim child support for the child who was then a major. If the Bernhardt case is read in the restricted sense that the wife could not demand an increase of the award on behalf of the child who had reached majority, but was nevertheless entitled to receive past due alimony until the husband filed for reduction, the case is not contrary to our holding today.”

In the recent case of Dubroc v. Dubroc, 388 So.2d 377 (La.1980), the court reiterated the holding of Halcomb declaring it a “jurisprudential rule.” However, the court further declared at 380:

“Since the parent’s duty of support and upbringing is a legal duty owed to the child, it cannot be renounced or suspended.3 There is no prohibition, however, expressed by the law against a spouse’s agreement to suspend his right to compel the other parent without custody to turn over to him in advance money necessary for the child’s maintenance. Of course, an essential prerequisite to such a conventional modification of a parent’s right to receive support payments is implied. The parent may not, by suspension of this right, thwart the purpose for which the right is established, i.e., the enforcement of the child’s right to support and upbringing.
“For these reasons, an agreement by a parent to suspend his right to receive child support payments will not be enforced unless it meets the requisites for a conventional obligation and fosters the continued support and upbringing of the child. To allow the parent to suspend his right to receive support payments under circumstances contrary to the child’s interests, would be inimical to the ultimate goal of support and upbringing of the child. On the other hand, if the parties clearly agree to a suspension of the payments, and such agreement does not interrupt the child’s maintenance or upbringing or otherwise work to his detriment, the agreement should be enforceable.”

In Dubroc the husband voluntarily took one of his two children of whom custody had been given to his former wife (because Mrs. Dubroc no longer wanted custody of the child). Mr. Dubroc told his former wife that in exchange for taking the custody he would only pay half of the child support award. The court found that she agreed to the reduction in child support in exchange for relief from her obligation to take care of one of the children and also found the agreement enforceable, therefore not allowing the wife judgment for arrearages in child support with respect to the amount she agreed to suspend.

Similarly, the law articulated in Dubroc was followed by this court in the case of Reed v. Reed, 399 So.2d 1255 (La.App. 4th Cir. 1981). In that case the trial court judgment had been rendered prior to the holding of Dubroc; therefore, this court remanded the matter to the district court for an evidentiary hearing in order to determine whether or not there was an agreement entered into between the parties changing the original judgment awarding alimony and child support.

In the present case, however, the record is devoid of any evidence tending to establish an agreement between the parties, to suspend all or part of the original child support judgment, sufficient to meet the requisites of a conventional obligation.

The district court judge, therefore, did not make a finding that such an agreement existed between the parties, nor does this court find the presence of such an agreement. Furthermore, as noted in the Dubroc case, the wife’s mere acquiescence in the husband’s failure to pay the full amount of child support does not amount to a waiver.

In regard to the district court’s award of attorney fees, this court can find no abuse of discretion. LSA-R.S. 9:305 states that when the court renders an exec-utory judgment incorporating the payment of child support or alimony in arrears, the court shall award attorney fees in favor of the prevailing party. Because the defendant in the present case had never complied with the original child support award, the district court judge was within his discretion in awarding $150 in attorney fees.

For the reasons assigned, therefore, the district court judgment is amended so as to increase the amount of judgment in the plaintiff’s favor from $2,000 to $10,800 (the amount due from June 1, 1977 to the trial date), together with legal interest on all sums until paid; defendant to pay all costs of the proceedings. In all other respects the trial court judgment is affirmed.

AMENDED AND AFFIRMED.


source: Caselaw Access Project

author: KLEES, Judge.

license: Public Domain

text:
    Nolan CHATMAN v. THOR OFFSHORE BOAT SERVICE, INC.
    No. 12238.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 12, 1982.
    Rehearing Denied March 19, 1982.

      R. Joshua Koch, Jr., Terriberry, Carroll, Yancey & Farrell, New Orleans, for defendant-appellee.
    Gordon Hackman, Boutte, for plaintiff-appellant.
    W. Eric Lundin, III, New Orleans, for appellee.
    Before SCHOTT, GARRISON and KLEES, JJ.
   KLEES, Judge.

On or about May 2, 1978, plaintiff was employed by Shell Oil Company as a roustabout aboard a fixed offshore drilling platform, located in the Gulf of Mexico approximately 40 to 45 miles from Venice, Louisiana. Plaintiff’s duties aboard this platform consisted of, among other things, unloading crew and supply vessels. On the date of his alleged injury he was summoned, along with a fellow roustabout, to assist in the unloading of the crewboat OCEANUS, owned by defendant, Thor Offshore Boat Service, Inc. This order to unload was given by the acting Shell maintenance leader, J. E. Roy.

As all of the cargo was to be unloaded by crane, plaintiff and his co-workers were lowered in a personnel basket by Shell employees on to the deck of the OCEANUS, which was moored alongside the platform. Once on the vessel plaintiff proceeded with the off-loading of the cargo until all but one pallet containing sacks of sand remained. Due to the movement of several of the sacks on this particular pallet, plaintiff attempted to pick up one of the sacks in order to attach cables to the pallet. While picking up one of these sacks plaintiff sustained an injury to his back.

On September 20, 1979, defendant moved for a summary judgment. The motion was set for October 4, 1979, and plaintiff was served with the motion on September 26, 1979.

On October 4, 1979, counsel for plaintiff appeared and filed an opposition to Motion for Summary Judgment. The matter was heard on that date and summary judgment was rendered in favor of defendant Thor Offshore Boat Service, Inc.

The appellant claims that he was not served ten days prior to the hearing of the motion for summary judgment as mandated by LSA-C.C.P. Art. 966.

Appellant argues that he sought a continuance on the grounds that he was not served ten (10) days prior to the hearing date. He further argues that this motion was denied on October 3, 1979. We can find no evidence of this motion or its denial in the record. Nonetheless, appellant’s counsel appeared in open court on October 4, 1979 to oppose the motion for summary judgment. A respondent waives service of a motion for summary judgment if he makes a general appearance at the hearing on the motion. See Le Blanc v. Landry, 371 So.2d 1276 (La.App. 3rd Cir. 1979); also Normand Company v. Abraham, 176 So.2d 178 (La.App. 4th Cir. 1965), See also LSA-C.C.P. Art. 925.

Appellant also claims that the court erred in failing to grant him an additional opportunity for discovery prior to the court’s ruling on the motion for summary judgment.

The appellant argues that the defendant’s counsel agreed to produce the captain of the OCEANUS at his counsel’s office so that the captain could be deposed. This agreement was made when the plaintiff was deposed, which was approximately nine (9) months prior to the hearing of the Motion for Summary Judgment. With this in mind he cites C.C.P. 967, in particular the second paragraph which reads as follows:

“If it appears from the affidavits of a party opposing the motion that for reasons stated he cannot present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.”

The article clearly states that granting a continuance to permit further discovery is purely within the wide. discretion of the trial judge and accordingly his decision should be reversed only upon a showing of an abuse of that discretion.

We find no abuse of discretion in this matter. The plaintiff had nine (9) months to notice the deposition of the captain or to take other steps to obtain other facts relating to the case. There was ample time to discover facts which might have precluded the granting of the summary judgment. If the captain’s testimony was material, plaintiff should have made a more diligent effort to depose him during this nine month period. Based upon these facts presented it is quite clear that the trial judge did not abuse his discretion when he denied the plaintiff’s request for an additional opportunity for discovery. In essence the only thing asserted by the plaintiff in response to the motion for summary judgment was that he did not have any knowledge of facts needed to defeat the motion. As stated in Miller v. East Ascension Telephone Company, 263 So.2d 360 (La.App. 1st Cir. 1972 Writ refused 266 So.2d 430, this is not sufficient to preclude summary judgment:

“The mere denial of the knowledge of facts needed to countermand a motion for a summary judgment does not constitute a sufficient response to such a motion, and in the absence of affidavits with specific allegations of fact reflecting that a genuine issue exists, the opposition is ineffectual, and the motion for a summary judgment will be granted. See Bally Case & Cooler, Inc. v. I. A. Kramer Service, Inc., 252 So.2d 559 (La.App. 4th Cir. 1971); Duplessis v. Hullinghorst, 255 So.2d 236 (La.App. 1st Cir. 1971); and Hooper v. Wilkinson, 225 So.2d 66 (La.App.3d Cir. 1969).”

For the foregoing reasons, the judgment of the district court granting Thor Offshore Boat Service, Inc.’s motion for summary judgment is affirmed.

AFFIRMED.


author: KLIEBERT, Judge.

text:
    EMPLOYERS INSURANCE OF WAUSAU v. I.D.S.O. INVESTMENTS, INC.
    No. 12165.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 14, 1982.
    Rehearing Denied March 19, 1982.

      Francipane, Regan & St. Pee, Richard T. Regan, Metairie, for plaintiff-appellant.
    Lugenbuhl, Larzelere & Ellefson, Vance E. Ellefson, New Orleans, for defendant-ap-pellee.
    Before BOUTALL, CHEHARDY and KLIEBERT, JJ.
   KLIEBERT, Judge.

I.D.S.O. Investments, Inc. (hereafter IDSO) is a corporation formed by the Hughes family for the purpose of integrating insurance, accounting, payroll and other managerial services for the various Hughes enterprises which at times numbered as high as twenty-three (23) different entities. IDSO acquired workmen’s compensation, general liability and automobile liability insurance coverage for all entities for a three year period, October 1, 1971 through October 1, 1974, from the plaintiff, Employers Insurance of Wausau (hereafter Employers). In the policy issued by Employers, the premiums paid during the year were to be adjusted at the end of the year in accordance with a “Retrospective Rating Plan D”. Under the plan, the standard premium is adjusted within limits (160% of the base premium as the maximum and 40% of the base premium as the minimum) to reflect the claim experience retrospectively. Attached as Appendix “A” is the entirety of the “Retrospective Premium Endorsement” issued as part of the workmen’s compensation policy for the period October 1, 1971 thru October 1, 1972. All parties agree the attached endorsement is applicable to all of the policies.

Each year three separate policies were issued, i.e., one for workmen’s compensation, one for general liability, and one for automobile liability. All three policies provided liability coverage for IDSO and each of the other Hughes entities. Each of the corporations involved in this suit are listed as named insureds in the policy along with IDSO. Copies of endorsement Nos. 1, 2 and 3 to the workmen’s compensation policy are attached hereto as Appendix “B”. Similar endorsements are part of the other two policies.

A dispute arose between the insured and insurer as to the method to be used in computing the premiums due under the Retrospective Rating Plan “D” endorsement. As a result, Employers filed suit to collect insurance premiums allegedly due and IDSO reconvened alleging overpayment of premiums. IDSO contends each corporate entity is a separately insured entity and for those premiums subject to Retrospective Policy Plan “D”, a separate premium should be computed for each corporation with the maximum and minimum applied to the standard premium for each corporation. Employers on the other hand contends that for purposes of computing the premiums due under the Retrospective Premium Plan “D”, there is only one insured entity with one maximum and minimum applied to the total of the standard premiums for all of the corporations. At the time of trial, following Employers’ method of computation would have resulted in an additional unpaid premium of $196,-712.00 being due by IDSO. On the other hand, a refund of $90,973.00 would be due to IDSO if its method of computing the premium was followed. Under the policy provisions, additional retroactive premium adjustments would have to be made now. During oral arguments in this Court, plaintiff and defendants acknowledged substantial modifications would now be required in the dollar amount of the premium even if the trial judge’s ruling was upheld and both parties suggested they could compute the amount of the premium once this Court ruled on the proper method to use in applying the maximum and minimum amount of the premium.

The district court found the policy provision ambiguous and capable of being interpreted as urged by either litigant. Since the policy was drafted by Employers, the trial judge concluded the ambiguity must be construed against it and, accordingly, dismissed Employers’ demand and rendered judgment in favor of IDSO in the amount of $90,973.00. Employers brought this sus-pensive appeal and argues two errors by the trial judge. First, Employers contends the trial court has ignored the fact that IDSO alone is the party responsible for payment of the premium. Second, it urges that the policy language is explicit rather than ambiguous and must be interpreted in the manner urged by it. We find no manifest error in the trial judge’s ruling or in his findings of fact or in his application of the applicable law.

From the inception of the trial to its conclusion, the trial judge was repeatedly called upon to rule on the admissability of testimony offered by both sides to show the intent of the parties or the circumstances under which the policies were issued. In making his ruling, the trial judge repeatedly stated the testimony was admissable only if the contract (the insurance policy) was ambiguous. For the most part, he admitted the testimony and after three days of hearing testimony, decided that even in the light of the evidence offered, the policy provisions were still ambiguous. Since the provisions were drafted by Employers, he concluded the ambiguity must be construed against them and, accordingly, accepted IDSO’s interpretation of the policy provisions and, hence, rendered judgment for $90,973.00 in favor of IDSO.

Knowledgeable experts testified for each side and presented plausible opinions as to interpretations of the policy language which supported the side for which they testified. Employees of both parties testified with sincerity and conviction as to their intentions and beliefs as to how the premiums should be computed. Both counsel, equally learned in the law and in their knowledge of insurance contracts, presented skillful and persuasive arguments supporting their interpretation of the policy language. Pure and simple, however, but left unsaid by either party, is the controlling fact that the Retrospective Rating Endorsement for Plan “D”, standing alone, does not provide whether maximum and minimum limits are to be applied to the standard premiums for each company or for the total of the standard premiums for all companies. Considering the Retrospective Rating Endorsement for Plan “D” alone supports Employers’ contentions for the printed endorsement was apparently drafted with a single insured in mind. However, when the inquiry is expanded to the policy provisions as a whole and interpreted in the light of the fact that each of the corporations is a “named insured”, the contentions of IDSO become plausible.

As stated by the trial judge in his reasons for judgment “_the insurance policy in question is patently ambiguous with regard to the correct manner for computing the premiums under the Retrospective Rating Plan here in dispute”. He then states the basis for and results which flows from that conclusion as follows:

“With regard to the premium, the policy provides:
‘.. . the insured shall pay the deposit premium to the company ... and thereafter interim payments shall be ... paid by the insured ...
‘.. . Upon termination of this policy the earned premium shall be computed in accordance with the ... rating plan ... applicable to this insurance ... If the earned premium thus computed exceeds the premium previously paid, the insured shall pay the excess; if less, the company shall return to the insured unearned portion paid by the insured
Endorsement Two of the policy provided:
‘It is agreed that the firms or corporations designated below are entered in ... the declarations as named insureds, and that such insurance as is afforded by the policy applies to each of the insureds named below ... ’
Each of the corporations involved in this suit are listed as ‘named insureds’ along with IDSO Investments, Inc. Under Endorsement Two, IDSO, as ‘the insured first below named’ was ‘authorized to act for each of the insureds successively named in all matters pertaining to this insurance’. IDSO was thus authorized to receive Notices of Cancellation and return premium, if any, for all of the insureds. The endorsement went on to provide that, in the event of bankruptcy or insolvency of IDSO, ‘each insured successively named shall be responsible for . . . the premium for the insurance afforded, respectively to each such insured successively named . .. ’
Retrospective Rating Plan ‘D’, used to determine the ‘earned premium’, states:
‘... after each computation, if the premium thus computed exceeds the premium paid ..., the named insured shall pay the difference to the company; if less, the company shall return the difference to the named insured
Employers Insurance of Wausau contends that the ‘named insured’, for the purposes of computing one premium, is IDSO, although all of named corporate entities are named insureds for purposes of coverage under the policy. IDSO contends that each corporate entity named in Endorsement Two of the policy is a separate ‘named insured’, for purposes of computing the retrospective premiums for each, although IDSO was authorized under the policy to act on behalf of all such entities in an effort to centralize the insurance management of the various entities.
Either of these interpretations may be equally justified by the policy language quoted above. Policies of insurance must be interpreted as any other contract. Savoie v. Fireman’s Fund Ins. Co., 339 So.2d 914 (La.App.1976), affirmed [La.] 347 So.2d 188; La.C.C. Article 1946. Louisiana law provides a rule of strict construction of ambiguities against the party who prepared or drafted the contract. La.C.C. Article 1958; Fontenot v. Monsanto Co., 363 So.2d 1309 (La.App.1978); Carpenter v. Leon E. Werntz and Associates, Inc., 345 So.2d 1018 (La.App.1977), writs denied [La.] 349 So.2d 871. Any ambiguity in an insurance contract must be resolved in favor of the insured. Rodrigues [Rodriguez] v. Northwestern National Insurance Company, 358 So.2d 1237 (La.Sup.Ct.1978); Carney v. American Fire and Indemnity Co., 364 So.2d 1386 (La.App.1978).
Having found patent ambiguity in the policy language concerning the proper method of computing the retrospective earned premium, the Court must construe the ambiguity against Employers, and in favor of IDSO, since Employers drafted the ambiguous language. It is true that IDSO was represented, in the negotiations with Employers, by an insurance expert of their own. However, the Court has received no evidence that IDSO’s expert in any way drafted the language in question.
Therefore, having found patent ambiguity in the contract language, and having found that Employers is solely responsible for that ambiguity, this Court will accept that interpretation of the policy which is most favorable of IDSO, namely, that the retrospective premiums are to be computed separately for each individual named insured entity, rather than lumping these entities together as Employers has done.”

We believe the trial judge’s reasons are correct and, hence, adopt them as our own. The trial judge’s reasons are not, as contended by Employers, inconsistent with his previous ruling dismissing IDSO’s exception of “Non-joinder of a Necessary Party” and thereby refusing to require a joinder of all other named insured under the policy. Rather, on the first ruling, the trial judge recognized the policy provisions authorizing IDSO to act for each of the insureds in all matters pertaining to the insurance, therefore, there was no necessity for making the other corporations a party defendant. The trial court’s ruling on the merits recognizes the same policy provisions, but rejects Employers’ contention that since IDSO is authorized and obligated to pay the premiums for all insured, it alone is the insured for the purpose of computing the premiums. In lieu thereof, it accepts IDSO’s contention that although IDSO pays the premium for all insurance, the burden of the premium is borne by all of the corporations as named insureds.

Likewise, we find no merit in Employers’ contention of error in the trial court’s finding that the policy is ambiguous. The trial court did give effect to the entirety of the policy provisions. Although it did, as contended by Employers, omit from the quotations of Endorsement Two above the following language:

“The Insured First Below Named [IDSO] shall pay the premiums for the insurance afforded to each of the insureds successively named.”

it did, as it was required to do, give effect to other policy provisions [Endorsement 1, Paragraph 3] that “... in the event of bankruptcy or insolvency of the primary insured, each additional insured shall be responsible for and shall pay to the company the premium for the insurance afforded such additional insured”, and, hence, concluded each corporate entity was an insured for purposes of insurance coverage as well as for premium computation purposes. Accordingly, the judgment of the lower court is affirmed. Each party to bear its own cost of appeal.

AFFIRMED.


text:
    Martha E. CRONAN, Jane Cronan Cody, et al. v. The CITY OF KENNER, the Consolidated Sewerage District of the City of Kenner, East Jefferson Waterworks District Number One and the Jefferson Parish Council.
    No. 12268.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 14, 1982.
    Rehearing Denied March 19, 1982.
    Henry Tutt Dart, Dart & Dart, New Orleans, for plaintiffs-appellants.
    George Giacobbe, Kenner, Ernest H. Hanewinckel, Dist. No. 1, Jefferson Parish, Metairie, Jessie James Marks, Louisiana Dept, of Justice, New Orleans, for defendants-appellees.
    Before BOUTALL, CHEHARDY and KLIEBERT, JJ.
   KLIEBERT, Judge.

The City of Kenner and the Parish of Jefferson instituted a water, sewerage and street paving project for certain squares in the Kenner Project Subdivision with the cost of the projects being assessed against the bordering landowners. Under the assessment ordinances of each governmental agency the bordering landowner could pay his pro-rata share of the investment in cash or in ten equal annual installments — “bearing interest at the rate not to exceed eight per centum (8%) per annum from January 24, 1977 until paid, said interest to be payable annually on January 24 of each of the years 1978 to 1987 inclusive”. An election by the landowner to pay cash or to finance had to be made prior to the time construction of the improvements commenced.

After the expiration of the cash payment option, the City of Kenner sold $1,124,000.00 of sewerage certificates and $4,695,000.00 of paving certificates. At the same time, the Parish of Jefferson sold $919,700.00 of the waterworks certificates. All certificates sold bear interest of 6% per annum with a 2% per annum interest bonus for the period June 1, 1977 to May 1, 1978. The 1978 installment bill to the landowners made an interest charge on the assessment of 8% per annum.

In February, 1978, two of the lot owners filed a class action suit against the City of Kenner, and its special Consolidated Sewerage District, the Jefferson Parish Council and the East Jefferson Waterworks District Number One. The suit alleges the defendants have received or will receive excessive funds in the form of (1) unspent project contingency funds (2) yearly interest charges in excess of that borne by the certificates and (3) interest earned on the investment of funds obtained on the sale of the certificates. The petition prays for the following relief:

(a) an injunction prohibiting the defendants from assessing the landowners an interest charge in excess of that borne by the certificates.
(b) a refund to the landowners of any of the excess funds specified in (1), (2) and (3) of the preceding paragraph, and
(c) a judgment declaring the statutory scheme which allows the overcharge to be unconstitutional.

The improper or inadequate designation of the name of the defendants and the failure of the plaintiff to include the Attorney General as a defendant resulted in exceptions of prematurity and non-joinder of parties and of no right or cause of action being filed against the petition. Additionally, defendants filed an exception of no right or cause of action grounded in a contention plaintiff was an improper representative of the class. Before these exceptions were fully disposed of the plaintiffs filed a pleading designating it as “Motion for Judgment”, alleging it to be a requirement of R.S. 13:5121, et seq. Defendants opposed the “Motion for Judgment” and prayed for a dismissal of same on the grounds the peremptive period set by Arti-ele 6, Section 35(b) for contesting the issuance of front foot assessments had expired.

After hearings, the trial judge rendered judgment which dismissed the defendants’ exceptions of prematurity and non-joinder. Further, it also dismissed the defendants’ exception of no cause of action grounded in the contention plaintiff was an improper representative of the class and held plaintiffs were entitled to represent the entire class upon plaintiffs sending notice to all possible plaintiffs permitting them to participate in or withdraw from the class. The trial judge further ruled that the plaintiffs had no cause of action to contest the validity of the assessment ordinances because such an action is now barred by the provisions of Louisiana Constitution Article 6, Section 35(b), but ruled plaintiffs were entitled to a declaratory judgment of their status under the assessment ordinances.

The plaintiffs filed a devolutive appeal assigning as error the trial court’s ruling that his time for attacking the constitutionality of the ordinance has expired. We find no such error.

Article 6, Section 35(b) of the 1974 Louisiana Constitution clearly provides that 30 days after the assessment ordinance has been enacted and published:

“... no one shall have any cause of action to test the regularity, formality, legality, or effectiveness of the ordinance or resolution, and provisions thereof for any cause whatever. Thereafter, it shall be conclusively presumed that every legal requirement for the issuance of the bonds or other debt obligation, including all things pertaining to the election, if any, at which the bonds or other debt obligation were authorized, has been complied with. No court shall have authority to inquire into any of these matters after the thirty days.”

Similar peremption provisions were contained in the previous Louisiana Constitution. The need and necessity for such a provision (contained in the 1921 Constitution) was stated in McGuffie v. Police Jury of Catahoula Parish, 183 La. 391, 163 So. 841 (La.1935) at Page 2, and was quoted by plaintiff in his brief as follows:

“The constitutional limitation invoked by the Police Jury was devised in the public interest, to protect the fisc from uncertainty and to protect the bonds, to be issued, from attack after a reasonable time allowed the taxpayer within which to contest the validity thereof for any cause.” (Page 843)

The validity of such peremptive provisions have been upheld by the courts several times. See Roberts v. Evangeline Parish School Board, 155 La. 331, 99 So. 280 (1923); Audubon Ins. Co. v. Parish of East Baton Rouge, 366 So.2d 972 (La.App., 1st Cir. 1978); Lege v. Vermillion Parish School Board, 360 So.2d 664 (La.App., 3rd Cir. 1978); McGuffie v. Police Jury of Catahoula Parish, 183 La. 391, 163 So. 841 (La.1935).

The essence of plaintiffs’ argument here is that his attack is different and hence is not pre-empted by Article 6, Section 35(b) because he does not seek to impede or disrupt the public project or its financing but rather merely seeks the return of funds that have been shown to be unnecessary and unused in the projects. The argument fails to recognize that there has not as yet been an evidentiary hearing in this litigation. The trial court’s ruling provides for an evidentiary hearing following which the plaintiffs’ status under the ordinances will be declared. In effect, plaintiff counsel is asking this court to rule that there will in fact be “unnecessary and unused funds” in the project and that unless those funds are refunded to the landowners, the ordinances are unconstitutional. To do so would be for us to render an advisory opinion which we do not have the authority to do.

Whether there is or will be “unnecessary and unused funds” and the disposition to be made of such funds will be determined in the evidentiary hearing provided for by the trial court’s ruling. Thereafter, the plaintiffs can seek a review of the trial judge’s ruling by exercise of their right to appeal.

Accordingly, the trial court’s judgment is affirmed. All costs to be borne by plaintiffs.

AFFIRMED.

      . The City of Kenner assessed the sewerage and street paving project through its Ordinance Numbers 2022 and 2025. The Parish of Jefferson assessed the water improvement project through its Ordinance No. 12828.

      . Installments for the years 1979, 1980 and 1981 made an interest charge of 7%.

      . Each of the ordinances enacted by the City of Kenner and by the Parish of Jefferson contained a section providing substantially the following:
      “After all costs, charges, fees and expenses incurred in the construction and financing of said improvements have been paid in full, the Consulting Project Engineers shall file with the person, firm or corporation administering the Construction Fund, a certificate so stating. After receipt of said certificate, the person, firm or corporation administering the Construction Fund shall make all surplus monies remaining in said Construction Fund available to the issuer. Such surplus monies, if any, shall be placed by the issuer in a separate account, which monies shall be used to maintain and operate said improvements, or until all liens are paid, to reimburse any accounts from which monies may have been contributed toward the cost of the improvement program. The person, firm or corporation administering the Construction Fund shall have no obligation or authority to supervise or control the expenditures of said surplus monies.”

      .R.S. 13:5121 thru 5130 is the Bond Validation Act with R.S. 13:5125 providing for a procedural method to accelerate a suit to contest or enjoin the issuance of governmental bonds and certificates.

      . Article 6, Section 35(b) of the 1974 Constitution provides as follows:
      “Every ordinance or resolution authorizing the issuance of bonds or other debt obligation by a political subdivision shall be published at least once in the official journal of the political subdivision or, if there is none, in a newspaper having general circulation therein. For 30 days after the date of publication, any person in interest may contest the legality of the ordinance or resolution and of any provision therein made for the security and payment of the bonds. After that time, no one shall have any cause of action to test the regularity, formality, legality, or effectiveness of the ordinance or resolution, and provisions thereof for any cause whatsoever. Thereafter, it shall be conclusively presumed that every legal requirement for the issuance of the bonds or other debt obligation, including all things pertaining to the election, if any, at which the bonds or other debt obligations were authorized, has been complied with. No court shall have authority to inquire into any of these matters after 30 days.”


author: FORET, Judge.

text:
    Mattie Rose Ferguson DOWNS, Plaintiff and Defendant-Appellant, v. Malcolm C. DOWNS, Defendant and Plaintiff-Appellee.
    No. 8582.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 3, 1982.
    Rehearings Denied March 23, 1982.

      Davis & Saybe, Michael H. Davis, Alexandria, for plaintiff and defendant-appellant.
    Kennedy & Yeager, Ralph W. Kennedy, Alexandria, for defendant and plaintiff-ap-pellee.
    Before CULPEPPER, FORET and CUTRER, JJ.
   FORET, Judge.

Malcolm C. Downs (plaintiff) brought this action to partition certain property alleged to have fallen into the former community of acquets and gains that had existed between him and the defendant, Mattie Rose Ferguson Downs. The trial court appointed W. T. Armitage, a notary public of Rapides Parish, to make an inventory of the property. Armitage made the inventory as ordered and filed his proces verbal with the court. Both parties filed numerous motions to traverse the proces verbal.

Trial of plaintiff’s action, and the motions to traverse, resulted in a judgment by the trial court decreeing a number of items of movable property to be defendant’s separate property. The trial court further decreed that a number of items of immovable property were community property and ordered that these immovables, together with certain movable property, be partitioned by licitation with the sale to be conducted at public auction by the Sheriff of Rapides Parish. Finally, judgment was rendered in favor of defendant granting her a credit of $2,217.60, and in favor of plaintiff granting him a credit of $18,737.58 against the former community. The judgment is final as to plaintiff as he has failed to perfect an appeal.

Defendant was granted this suspensive appeal from the trial court’s judgment and raises the following issues:

(1) Whether the capital account of plaintiff in the Downs Furniture Company is a community asset;
(2) Whether plaintiff’s partnership interest in Downs Furniture Company is community property;
(3) Whether the increase in value of plaintiff’s partnership interest in the Downs Furniture Company resulted from the reinvestment of community funds into the business and/or community labor performed for the business;
(4) Whether the community is indebted to defendant because of defendant’s alleged use of her separate funds to improve community property or for other community purposes;
(5) Whether plaintiff’s partnership interest in Downs Investment Company is community property.

FACTS

Plaintiff and defendant were married on December 25, 1953, and established their domicile in Rapides Parish. Defendant obtained a judgment of separation on December 14, 1977, and the parties were subsequently divorced on November 28, 1979.

Plaintiff instituted this action on May 11, 1978, reciting the above mentioned facts, and alleging that he and defendant were owners in common of certain property that had fallen into the community of acquets and gains which no longer existed between them. Plaintiff further alleged that the parties were unable to agree upon a non-judicial partition of the property and that he was entitled to a judicial partition thereof.

Defendant answered plaintiff’s original petition, alleging that the household goods, enumerated in the detailed descriptive list attached to the petition, were, for the most part, defendant’s separate property. Defendant also alleged that the detailed descriptive list failed to include certain items of community property, and that she was entitled to reimbursement from the community for her separate funds alleged to have been expended to improve community property or for other community purposes.

NATURE OF PLAINTIFF’S CAPITAL ACCOUNT

Defendant contends that plaintiff’s capital account maintained for him by the Downs Furniture Company is community property because it consists solely of plaintiff’s share of the partnership’s profits placed therein. She argues that plaintiff’s share of the partnership’s profits became community property when they were placed in the account.

William Roberts, a C.P.A. and an attorney, was accepted by the court as an expert in accounting. He testified that he had provided his services as a C.P.A. to the Downs Furniture Company since its inception. He explained the nature of plaintiff’s capital account as follows:

“... that’s composed of cash, accounts receivable, inventory, furniture and fixtures, vehicles, cash surrender value of life insurance, meter deposits ... total less accounts payable, taxes payable, trade notes payable, notes payable . . . net capital.”

Roberts explained that a separate capital account was maintained for each partner. That partner’s share of the profits generated by the partnership would be credited to his capital account each year (losses were deducted therefrom). A partner was allowed to withdraw funds from the partnership as long as funds were available and the withdrawals did not exceed the amount stated in his capital account. The withdrawal would be accomplished by writing a check on the partnership checking account made out to the partner making the withdrawal and by decreasing the amount stated in his capital account accordingly. Roberts further explained that these capita! accounts were not actual cash accounts, but were simply maintained as a method of indicating the amount that each partner had invested in the business.

The evidence shows that a partner’s capital account is nothing more than a reflection of the net capital invested by that partner in the business, together with his share of the partnership’s profits reinvested by him. The accounts are not separate and distinct entities that can be characterized as “property”. They exist only on paper as a means of showing the value of each partner’s interest in the partnership. We find no merit in defendant’s contention that plaintiff’s capital account is community property.

NATURE OF PLAINTIFF’S PARTNERSHIP INTEREST IN DOWNS FURNITURE CO.

Defendant concedes that plaintiff’s partnership interest in the Downs Furniture Company was originally his separate property, having been acquired before the parties were married. However, she contends that the nature of that interest was changed by certain events such that it is now community property.

Her position is that plaintiff formed new partnerships, with his brothers, in 1968 and 1972 and that plaintiff used community property to finance his interest in these new partnerships. However, the trial court found that the events consisted of nothing more than a transformation of plaintiff’s interest in one partnership to an identical interest in another partnership. The trial court, in support of its findings, cited the jurisprudence holding that the mere change of separate property from one form to another during the existence of the community does not change the nature of that property from separate to community .

The written agreement signed by the partners in 1968 indicates that they were merely setting forth in writing the terms of a verbal contract of partnership entered into by them on April 1, 1964. The same is true with respect to the written agreement executed in 1972, although that agreement changed the percentage share of each partner in the profits and losses of the partnership. Thus, the crucial question is what was the nature of the property (either community or separate) used by plaintiff to finance his interest in the partnership formed on April 1, 1964.

The evidence indicates that on April 1, 1964, plaintiff’s capital account, maintained in the old partnership, reflected a value of $82,930.99. The financial records of that partnership, together with the income tax returns filed by the parties, show that $94,338.10 had been credited to plaintiff’s capital account as his share of the profits from the date the parties were married until the new partnership was formed. For the reasons expressed in the next section of this opinion, we find that these funds were community property. However, for that same period of time, plaintiff had withdrawn $97,179.25 from the old partnership which he used for community purposes. Thus, at the time the new partnership was formed, the value reflected by plaintiff’s capital account was attributable only to plaintiff’s original investment in the old partnership and additional capital infused by him into that partnership.

We find that there was no change made in the nature of plaintiff’s partnership interest by the formation of a new partnership on April 1,1964. Plaintiff’s interest in the old partnership was his separate property and it remained his separate property when he used it to capitalize his interest in the new partnership.

INCREASE IN VALUE OF PLAINTIFF’S PARTNERSHIP INTEREST

Defendant contends that the value of plaintiff’s partnership interest (separate property) in the Downs Furniture Company increased by over $65,000.00 during the period of time the parties were married and that she is entitled to one-half of that increase in value under the provisions of LSA-C.C. Article 2408.

LSA-C.C. Article 2408 provides:

“Art. 2408. Division of increase or improvements of separate property
Art. 2408. When the separate property of either the husband or the wife has been increased or improved during the marriage, the other spouse, or his or her heirs, shall be entitled to the reward of one half of the value of the increase or ameliorations, if it be proved that the increase or ameliorations be the result of the common labor, expenses or industry; but there shall be no reward due, if it be proved that the increase is due only to the ordinary course of things, to the rise in the value of property, or to the chances of trade.”

Hence, it is perceived that, if either husband or wife substantially contribute to the amelioration of the separate property of one of them during the marriage by his or her labor or industry, the spouse who does not own the separate property is entitled to the reward of one-half the value of the increase, and it is immaterial whether the enhancement is attributable to his or her personal effort. The important circumstance is that the contribution must result from community labor, industry, or expense. Abraham v. Abraham, 230 La. 78, 87 So.2d 735 (1956); Lane v. Lane, 375 So.2d 660 (La.App. 4 Cir. 1978), writ denied, 381 So.2d 1222 (La.1980).

Defendant argues that the increase in value of plaintiff’s partnership interest, while they were married, resulted from plaintiff’s common labor performed for the partnership and from plaintiff’s reinvestment of community funds in the partnership. However, the trial court found that she had failed to prove that this increase was due to the expenditure of community funds or labor. We disagree and conclude that the trial court committed manifest error in making this finding.

The trial court noted that while the value of plaintiff’s partnership interest had increased during the parties’ marriage, “.. . this increased value is just as much attributable to inflation, the chances of the trade, the workings and labor of other partners, and the general rise in the value of property”.

Abraham set forth, on page 739, the following rule with respect to the burden of proof in cases such as this:

“[4] Defendant’s contention that the increase of the capital and undivided profits of Helshro is “due only to the ordinary course of things, to the rise in the value of property, or to the chances of trade" is not substantial. It is clear that the growth and success of the business is chiefly due to the efforts of defendant, who has been in sole control of its management over the years, although there can be little doubt that general prosperity and inflationary values have played a prominent part in the accretion. However, this fact does not render Article 2408 of the Code less appropriate for, when it is shown that community labor, expenses or industry has provided an increase to the separate property, the burden shifts to the owner of the separate property to rebut this proof and affirmatively establish that the increase is due only to the ordinary course of things, rise in values or chances of trade.5” (Emphasis ours).

It is apparent that the trial court erroneously shifted the burden of proof with respect to the effects that the ordinary course of things, rise in values, or chances, of trade had on the increase in value of plaintiff’s separate property from plaintiff to defendant. Plaintiff had the burden of proving that the increase in value of his separate property was due only to the ordinary course of things, rise in values, or chances of trade under Abraham.

See also Deliberto v. Deliberto, 400 So.2d 1096 (La.App. 1 Cir. 1981).

However, Fontenot v. Fontenot, 339 So.2d 897 (La.App. 3 Cir. 1976), writ denied, 342 So.2d 217 (La.1977), citing Succession of Rusciana, 136 So.2d 509 (La.App. 1 Cir. 1961), set forth, on page 901, the following with regard to the burden of proof placed on a party seeking reimbursement under LSA-C.C. Article 2408:

“In order to receive reimbursement for the enhanced value of the property under Civil Code Article 2408, a party must show: (1) that the improvements did in fact enhance the property; (2) that the improvements were made with community funds or joint labor; (3) the value at the commencement and dissolution of the community; and (4) that the enhancement did not result in the ordinary course of events, i.e. a natural appreciation of immovable property, etc.” (Emphasis ours.)

It can be seen that the fourth requirement in Fontenot conflicts with the emphasized portion of Abraham by shifting the burden of proving that the enhancement did not result in the ordinary course of events to the party seeking reimbursement. Instead, under Abraham, as noted above, the owner of the separate property, against whom reimbursement is. sought, must prove that the enhancement to his separate property resulted solely from, “.. . the ordinary course of things, rise in values or chances of trade”, once the party seeking reimbursement has shown that, “... community labor, expenses or industry has provided an increase to the separate property”.

To the extent that Fontenot ignores the clear dictates of Abraham and attempts, in item 4, to shift the burden of proof as to the reason for enhancement, it is incorrect and will not be followed.

The evidence indicates that plaintiff devoted all of his work efforts to the Downs Furniture Company during his marriage to defendant. The partnership agreements provide that plaintiff, “... is hereby named and designated the managing partner, and as such is placed in general charge of the affairs of the partnership and shall have general control, direction, and administration of the business affairs of the partnership”. Plaintiff has exercised these powers throughout the existence of the partnership and it is obvious that the growth and prosperity enjoyed by it is largely attributable to his capable management of its affairs. Thus, we find that the enhancement in value of plaintiff’s partnership interest is largely the result of his community labor given to the partnership.

Defendant further argues that plaintiff reinvested community funds (in the form of his share of the profits of the partnership) back into the partnership and that this also enhanced the value of his interest therein.

The evidence shows that during the 24 years that the parties were married, plaintiff’s share of the partnership’s profits amounted to $307,957.34. This amount was credited to his capital account. However, during that same period of time, plaintiff withdrew only $213,743.70, which he used for community purposes. Thus, if his share of the partnership’s profits were community property, then he reinvested some $94,-213.64 in community funds back into the partnership. Roberts testified that plaintiff was allowed to withdraw funds against his capital account whenever he wished to do so and for any purpose. He indicated that the account could be characterized as a “drawing account” as well as a “capital account”.

Succession of Hollier, 158 So.2d 351 (La.App. 3 Cir. 1963), writ granted, 247 La. 384, 171 So.2d 656 (1965), on remand, 184 So.2d 790 (La.App. 3 Cir. 1966), writ denied, 249 La. 203, 186 So.2d 160 (1966), held at 158 So.2d 358 that:

“[9] Under the law and jurisprudence of this State the share of the profits which a partner derives from a commercial partnership belongs to the community of acquets and gains which exists between him and his spouse, even though the partnership may have been formed prior to the marriage of the partner. LSA-C.C. Article 2402; Denegre v. Denegre, 30 La.Ann. 275; Succession of Ratcliff, 212 La. 563, 33 So.2d 114; Milling v. Collector of Revenue, 220 La. 773, 57 So.2d 679; Peltier v. Begovich, 239 La. 238, 118 So.2d 395; Thompson v. Bradley, La.App. 4 Cir., 142 So.2d 540.”

We find that when a husband’s share of a partnership’s profits is made available to him in such a manner that he may withdraw them from the partnership at any time and for any purpose, then those profits represent income to him which is community property during the existence of the community. See Ogden v. Ogden, 331 So.2d 592 (La.App. 1 Cir. 1976), writ denied, 337 So.2d 523 (La.1976); Cf. Guiiott v. Gui-lott, 361 So.2d 1271 (La.App. 3 Cir. 1978), writ denied, 363 So.2d 68 (La.1978). We further find that defendant has proven that plaintiff’s partnership interest was enhanced by the reinvestment of community funds. Plaintiff has failed to affirmatively establish that the increase was due only to the ordinary course of things, rise in values, or chances of trade.

Plaintiff’s share of the capital and undivided profits of the partnership was worth $38,089.18 at the time the parties were married. It increased in value to $103,507.92 at the time they were judicially separated. Thus, the value of plaintiff’s separate property was enhanced by the sum of $65,481.74, and defendant is entitled to recover one-half of that amount under the provisions of Civil Code Article 2408, or $32,709.37. See Abraham v. Abraham, supra.

DEFENDANT’S RIGHT OF REIMBURSEMENT

Defendant contends that she is entitled to be reimbursed in the amount of $66,890.50 for her separate property (money) delivered by her for use by the community. The trial court found that plaintiff was entitled to be reimbursed in the amount of $2,217.60 for this item.

Paragraph XIX of plaintiff’s third supplemental and amending motion to traverse proces verbal of inventory reads as follows:

“Declaring the community of acquets and gains indebted unto the separate estate of Mattie Rose Ferguson Downs for all sums delivered for use to the community and which said sums total $66,890.50.”

Defendant attempted to present evidence to show that she was entitled to the amount claimed in the paragraph reproduced above. However, plaintiff objected to its introduction, arguing that such evidence concerned issues not raised by the pleadings. The trial court sustained the objection, stating that, “I don’t think this allegation is sufficient to put on this proof since we have the fact pleading in Louisiana”. The trial court then allowed defendant to place the evidence in the record under a proffer of proof. See LSA-C.C.P. Article 1636.

The law and jurisprudence are clearly to the effect that harsh rules of procedure are not favored and that pleadings should be liberally construed so as to serve the ends of justice rather than technical niceties. LSA-C.C.P. Article 865; Buckley v. Nat Harrison & Associates, 245 So.2d 522 (La.App. 3 Cir. 1971). However, while we recognize that pleadings are to be construed so as to afford a litigant his day in court, they are also to be constrsssued so as to do substantial justice for both parties. LSA-C.C.P. Articles 865 and 5051; Roy v. Commercial Union Assurance Company, 385 So.2d 1273 (La.App. 3 Cir. 1980).

We find that the trial court erred in sustaining plaintiff’s objection to the introduction of evidence by defendant concerning the issue of whether the community was indebted to her for her separate property delivered to it. The paragraph from defendant’s pleadings alleges sufficient facts to place plaintiff on notice that such an issue was being raised. Thus, we will consider the evidence contained in defendant’s proffer.

Defendant contends that under the provisions of LSA-C.C. Article 2391, she has an absolute right to the restitution of her para-phernal effects, either delivered to plaintiff or expended for the benefit of the community. However, the trial court found that defendant had failed to prove that she had expended any of her separate funds for the benefit of the community, except for $1,717.60 she had used to pay off the mortgage on a home which she acquired during the partition of community property belonging to her and her first husband, John Barnett, and $500.00 she had paid as a down payment.

Slater v. Culpepper, 99 So.2d 348 (La.1957), stated on page 360 that:

“Under our law the wife, unlike the husband, has the absolute right to restitution for her paraphernal effects and their fruits, either delivered to her husband or delivered for use to the community, save in instances governed by Article 2389 of the Civil Code, which is not applicable here. In the case of the husband, it is incumbent upon him to establish that his separate property has been employed to enhance the community at its dissolution. Munchow v. Munchow, 136 La. 753, 67 So. 819; Vicknair v. Terracina, 168 La. 417, 122 So. 276; Succession of Provost, 190 La. 30, 181 So. 802 and Abunza v. Olivier, 230 La. 445, 88 So.2d 815. But, in the case of the wife, the right to restitution is unqualified, Article 2391 of the Civil Code providing:
‘The wife has, even during marriage, a right of action against her husband for the restitution of her paraphernal effects and their fruits, as above expressed.’ ”

See also Reynolds v. Reynolds, 388 So.2d 1135 (La.1980); Lane v. Lane, supra.

However, where separate funds of the wife are substantially commingled with community funds in bank accounts so that funds delivered by the wife to the husband cannot be traced to her separate funds, she is not entitled to restitution. Paxton v. Bramlette, 228 So.2d 161 (La.App. 3 Cir. 1969), writ denied, 255 La. 241, 230 So.2d 92 (1970); Gregory v. Gregory, 223 So.2d 238 (La.App. 3 Cir. 1969); Slater v. Culpepper, supra. Nevertheless, this change in the legal status of a bank account does not relieve the community estate of the obligation of restoring to the wife’s separate estate, any separate funds which were deposited in the account after it became community property. Slater v. Culpepper, supra.

The evidence shows that until 1968, the only funds that had been deposited in defendant’s checking account were wages, which she had earned from employment prior to her marriage to plaintiff, and gifts from her mother and aunt. Defendant inherited numerous shares of stocks and bonds on July 12, 1968, and the income from these stocks and bonds were deposited in her checking account. Thus, she began to commingle community property (the income from her stocks and bonds) with her separate funds in her checking account. Defendant deposited an average of $1373.52 per year, in income from her stocks and bonds, for the years 1968 through 1976, while she deposited an average of $13,-747.43 per year, for those same years, in funds she received from the sale of her separate property, gifts from others, maturing bonds, bank loans, the repayment of funds she lent to others, and unknown sources. Defendant testified that after 1968, she was unable to tell whether the improvements she made on the community home were made with her separate funds or community funds.

Our review of the record establishes that the trial court’s findings that defendant had commingled the funds in her checking account to the point that all of the funds became community property and that she was unable to prove that improvements were made to community property with her separate funds is not clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978); Canter v. Koehring Company, 283 So.2d 716 (La.1973).

The evidence shows that the checking account is still maintained in the name of the defendant and remains in her possession. Plaintiff has made no claim to any of the funds in this account. Thus, there is no restitution to be made by the community to defendant for any of her separate funds placed therein.

PLAINTIFF’S PARTNERSHIP INTEREST IN DOWNS INVESTMENT COMPANY

Defendant contends that the trial court erred in failing to find that plaintiff’s partnership interest in the Downs Investment Company is community property. However, as the following excerpt from the trial court’s written reasons for judgment shows, the trial court did make such a finding:

“For the above reasons there is judgment herein ordering the public sale of Mr. Downs’ share in the Downs Investment Company. After the Sheriff has received the last and highest bid the interest of Mr. Downs must be offered to his partners as they have the right of first purchase. The remaining sums are be divided V2 each as beloning to [sic] Mr. Malcolm C. Downs and Mrs. Mattie Rose Downs.”

A reading of plaintiff’s brief submitted to this Court shows that he was under the impression that such a finding had been made. However, in the judgment submitted to and signed by the trial court, it is ordered that the immovable property owned by the Downs Investment Company be partitioned by licitation with one-fifth of the proceeds to be divided between plaintiff and defendant.

We find that an error was made in drawing up the judgment that was eventually signed by the trial court. We will remand this case to allow the trial court to amend its judgment to conform with its written reasons for judgment and with the apparent intentions of both parties, i.e., that plaintiff’s interest in the Downs Investment Company be partitioned by licitation with each party receiving one-half of the proceeds therefrom.

For the above and foregoing reasons, the judgment of the trial court is reversed in part, and judgment is rendered in favor of defendant recognizing her right to recover the sum of $32,709.37 representing one-half of the increase in value of plaintiff’s partnership interest in the Downs Furniture Company occurring during the parties’ marriage. In addition, the case is remanded to the trial court to allow it to amend its judgment to order a partition by licitation of plaintiff’s partnership interest in the Downs Investment Company. The trial court’s judgment is affirmed in all other respects.

All costs of this appeal and in the trial court are to be paid from the proceeds realized from the sale of the community property belonging to the parties.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

      . See Kittredge v. Grau, 158 La. 154, 103 So. 723 (1925); State ex rel. Waterman v. J. S. Waterman & Co., Inc., 178 La. 340, 151 So. 422 (1933); Lane v. Lane, infra.

      . LSA-C.C. Art. 2408 was repealed by Acts 1978, # 627, § 6, effective January 1, 1980. However, this act was repealed in its entirety by Acts 1979, # 709, § 5, effective January 1, 1980, which also repealed LSA-C.C. Article 2408.


author: CUTRER, Judge. FORET, Judge,

text:
    Ronald BRILEY, Plaintiff-Appellant, v. LOUISIANA STATE RACING COMMISSION; C. L. Bubba Webb; E. J. Hessler, Jr. and Charles Ashy, Defendants-Appellees.
    No. 8634.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 3, 1982.
    Rehearing Denied March 23, 1982.
    Stacey Moak, Baton Rouge, and Preston N. Aucoin, Ville Platte, for plaintiff-appellant.
    William J. Guste, Jr., Warren E. Moule-doux and John E. Jackson, Jr., New Orleans, for defendants-appellees.
    Before CULPEPPER, FORET and CUTRER, JJ.
   CUTRER, Judge.

This appeal arises from the trial court’s affirmance of the Louisiana State Racing Commission’s imposition of sanctions upon Ronald Briley for the violations of its rules and regulations.

The racing Stewards for the Evangeline Downs horse racing track of Lafayette, Louisiana, suspended Ronald and Tom Bri-ley from racing horses at any track in Louisiana. The Stewards ruled that three horses from the Briley stables were administered an illegal drug prior to their entry into three races on August 23, 1973. This suspension was appealed by Ronald Briley to the Louisiana Racing Commission (Commission). The Commission, after a hearing, upheld the ruling of the Stewards and imposed a suspension of three years. From this ruling, Ronald Briley appealed to the district court which affirmed the Commission’s actions. Ronald Briley appealed the district court judgment. We affirm.

The facts presented in this case are:

Ronald Briley is owner of Briley Stables where horses are boarded and trained for racing. Tom Briley was employed by Ronald as a trainer. Both Ronald and Tom were licensed by the Commission as trainers. The Briley Stables were training three horses prior to the August 23, 1973 racing date. Two of the horses were registered to Ronald as trainer and the other was registered to another employee as trainer. About a month before August 23, 1973, these three horses (“A Going Doll,” “Easy Rogé” and “Rockity’s Girl”) were transferred to Tom as trainer. This transfer was approved by the Stewards of Evangeline Downs. According to Ronald, this transfer was made, to Tom because, by doing so, the horses would each be assigned to a separate race. By running in separate races the same jockey could ride each of the horses.

On August 23, 1973, the three horses were entered into the separate races, those being the fourth, fifth and sixth races. Each horse finished third. Following the race the first, second and third place horses (win, place, show) of each race were taken to the testing barn where urine samples were taken. This is a “split sample,” in that, part of the urine is marked, frozen and kept at the track and the other part is sent to the Commission’s chemist at the Shilstone Testing Laboratory in New Orleans for testing. The tests conducted by Shilstone revealed that each of the Briley trained horses had been administered an amphetamine before their races. The Stewards relayed the findings to Ronald and Tom Briley during the hearing held on August 27-31. Neither the findings of Shilstone nor the authenticity of the samples were questioned by the Brileys.

The Stewards ruled that both Ronald and Tom were trainers within the rules of the Commission, due to their connexity with the training of horses, and both violated those rules as prohibited drugs were found in the horses’ urine samples. Both men were suspended by the Stewards who concluded that Tom, as record trainer, and»Ronald, as director of the overall operations of the stable, must be jointly accountable. Ronald suspensively appealed to the Commission. The ten-day hearing requirement was waived and the suspension hearing came before the Commission on October 31 and November 21, 1973.

After the hearing, the Commission upheld the Stewards’ ruling and ordered Ronald Briley’s license suspended for three years beginning November 21, 1973.

Ronald appealed the ruling to the district court. The Commission granted a stay of the suspension pending appeal. Various pleadings were filed in the district court. Judgment was finally rendered by the district court on February 14, 1977. A motion for a new trial was filed, which was never heard, but was dismissed by agreement of both parties on April 3, 1981. A second motion for a new trial was thereafter filed and such was dismissed on June 30, 1981. This suspensive appeal was then taken by Ronald.

The issues on appeal arise out of Ronald Briley’s contention that the procedure administered by the Commission deprived him of due process and was thus unconstitutional.

Briley further pleads the unconstitutionality of the following statutes:

(A) LSA-R.S. 4:150(A) which makes the trainer of a horse an insurer of the condition of the horse’s condition;
(B) LSA-R.S. 4:155 authorizing the Commission to impose penalties for rule violations. In the alternative, if the statute is constitutional, the Commission imposed the penalty in an arbitrary manner.

COMMISSION PROCEDURE

The Stewards notified Ronald Briley that he was charged with the violation of Rule 6(s) of the Rules of Racing. The Stewards suspended Ronald for the violation of such rule. The Commission, after a hearing, found that Briley had violated both Rules 6(s) and 6(p). Counsel contends that the ruling of the Commission violates LSA-R.S. 49:951, et seq. (LSA-R.S. 4:154 provides that the Commission hearings, practice and procedure were governed by the Administrative Procedure Statute LSA-R.S. 49:951, et seq.)

LSA-R.S. 49:955 provides, in part, as follows:

“A. In an adjudication, all panties who do not waive their rights shall be afforded an opportunity for hearing after reasonable notice.
“B. The notice shall include:
# * * * * #
(3) A reference to the particular sections of the statutes and rules involved:
“C. Opportunity shall be afforded all parties to respond and present evidence of all issues of fact involved and argument on all issues of law and policy involved and to conduct such cross-examination as may be required for a full and true disclosure of the facts.” (Emphasis added.)
LSA-R.S. 49:961 C provides as follows:
“C. No revocation, suspension, annulment, or withdrawal of any license is lawful unless, prior to the institution of agency proceedings, the agency gives notice by mail to the licensee of facts or conduct which warrant the intended action, and the licensee is given an opportunity to show compliance with all lawful requirements for the retention of the license. If the agency finds that public health, safety, or welfare imperatively requires emergency action, and incorporates a finding to that effect in its order, summary suspension of a license may be ordered pending proceedings for revocation or other action. These proceedings shall be promptly instituted and determined. Acts 1966, No. 382, § 11, eff. July 1, 1967.”

As we consider the procedural requirements of these provisions, we conclude, as did the trial court, that the Commission was in error in basing its ruling upon the violation of both Rule 6(p) and Rule 6(s). The Stewards had only charged that Briley had violated Rule 6(s). Briley was not put on notice that he was being charged under Rule 6(p).

Rule 6(p) provides as follows:

“No person shall administer, or cause or knowingly permit to be administered, or connive at the administration of, any drug to any horse entered for a race, which is of such character as could affect the speed of the horse in such race. Every Owner, Trainer or Groom must guard, or cause to be guarded, each horse owned, trained or attended by him in such manner as to prevent any person or persons from administering to the horse, by any method, any drug prior to the time of the start of the race which is of such character as to affect the speed of the horse in such race.
“When a report is received from the State Chemist reflecting in his expert opinion that the chemical analysis of blood, saliva, urine, or other samples taken from a horse indicate the presence of a forbidden narcotic, stimulant, depressant or analgesic, local anesthetic or drugs of any description this shall be taken as prima-facie evidence that such had been administered to the horse. Such shall also be taken as prima facie evidence that the owner, and/or trainer, and/or erroom has/have been neerlierent in handling of the horse.
“The owner, and/or trainer, and/or groom, and/or other person, shall be permitted to interpose reasonable and legitimate defenses before the Stewards and the Racing Commission.” (Emphasis added.)

Rule 6(s) provides as follows:

“Should the chemical analysis of any sample of the blood, saliva, urine, or other excretions of body fluids of any horse so analyzed contain any narcotic, stimulant, depressant, local anesthetic, analgesic, or drugs of any description, the trainer of the horse may, after a hearing of the Stewards, be suspended or ruled off, if the Stewards conclude that the drug contained in the sample could have produced analgesia in, stimulated, or depressed the horse or could have masked or screened a drug that could have produced analgesia in, stimulated or depressed the horse. The stable foreman, groom, and any other person shown to have had the care or attendance of the horse may be suspended, or ruled off. The owner or owners of a horse so found to have received such administration shall be denied, or shall promptly return, any portion of the purse or sweepstakes and any trophy in such race, and the same shall be distributed as in the case of a disqualification.”

An examination of the above rules reveals that the error of the Commission, in basing their finding upon the violation of Rule 6{p) as well as Rule 6(s), was a harmless error. The evidence presented in the record fully supports a finding that Rule 6(s) was violated and the ensuing suspension was proper. The ruling of the trial judge in this regard shall be affirmed.

Counsel for Ronald Briley generally complains of other procedural errors, which contentions have no merit. The procedural requirements of LSA-R.S. 49:961, et seq., have been met by the Commission. Ronald was notified of the charges and given ample opportunity to have urine tests made by an expert of his choice. This right to test was waived. Ronald presented his case to the Commission where evidence was adduced and witnesses testified. He was represented by legal counsel in all steps of the proceedings. Failure of Ronald to prove his case does not prove a denial of due process.

Ronald also contends that a horse could only have one trainer. He urges that since his brother, Tom (who plead no contest to violations of the rules concerning drugging), was the program trainer, he could not be subjected to a suspension. Neither the statute nor the rules exclude the possibility of more than one trainer. The finding of the Commission that Ronald was also a trainer of the horses will not be disturbed on appeal.

We find, from a perusal of the record, substantial evidence to uphold the finding of the Commission and its affirmance by the trial court. The findings and decision of the Commission and trial court are not manifestly erroneous and are, therefore, affirmed.

TRAINER: ABSOLUTE INSURER LSA-R.S. 4:150(A)

Plaintiff alleges that the provision in Section 150(A) which states: “The granting of a license to a trainer shall make him responsible for and be the absolute insurer of the condition of the horses he enters regardless of the acts of third parties,” creates an irrebuttable presumption of guilt and is thus unconstitutional in its application. Section 150(A) applies equally to all trainers; they shall be the absolute insurer of the condition of the horses regardless of the acts of third parties. This is consistent with the legislative intent and policy with which Rule 6(s) is in accord. Also, the provision (trainers are absolute insurers) has a rational basis and is reasonably related to the governmental interest sought to be advanced by it. Even if one argues that a separate classification exists (trainers rather than someone else being absolutely liable) “the crucial question is whether there is an appropriate governmental interest suitably furthered by the differential treatment.” Police Dept. of Chicago v. Mosley, 408 U.S. 92, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972). The governmental interest is to insure honest and safe races as well as to protect the integrity of the industry and its source of revenues generated from the activity. The burden being placed on the trainers, who have control of the horses before and after the race, is not so onerous as to be unconstitutional. When one weighs the control of the trainer, his grooms and jockey and their ability to prevent tampering with the horse, with the safety and integrity of the industry and public fisc, no one is in a better position to bear the obligation than the trainer. A substantial governmental purpose is served. To merely disqualify the horse and not penalize the trainer would not, in all likelihood, give much impetus in preventing the drugging of horses. However harsh the rule, it is applied equally to all trainers and therefore is not unconstitutional in its application.

PENALTY DETERMINATION AND APPLICATION LSA-R.S. 4:155

Ronald Briley urges the unconstitutionality of LSA-R.S. 4:155 (as it appears when these offenses were committed) in that it allows an unequal application of the law as the provision does not set out any specific penalties for its violation. The statute provides as follows:

“§ 155. Commission authority, fines, suspensions, revocations, forfeitures and disciplinary actions.
The commission may impose upon a licensee a fine not exceeding $5,000.00 and may suspend a license indefinitely or both.
Any commission action taken herein shall be consistent with the provisions of this Part.’’

It is true that the statute does not set out any specific penalty for a specific violation; however, the determination of a fine or other penalty is vested in the Commission subject to judicial review for abuses of discretion. Here the penalty given, three years suspension, is not an abuse of discretion and is not constitutionally excessive. The flexibility of the statute in allowing the Commission to look to all the evidence and consider all the surrounding circumstances before imposing a fine or penalty, once all due process and equal protection considerations are met, subject to judicial review, meets the legislative intent and policy, is uniform in its application and effect, and, is constitutional in its application. To hold otherwise would be to mandate the same penalties for a similar violation regardless of its frequency of occurrence and/or severity. We hold, therefore, that LSA-R.S. 4:155 is constitutional and does not allow an unequal application of the law.

Ronald Briley further alleges that the penalty provision was unconstitutionally applied to him in that the Commission did not deliberate before imposing its penalty. Our perusal of both the racing and administrative procedure statutes does not reveal the requirement that the agency have some formal deliberation before imposing a penalty. The hearing in this case spanned two different dates, October 31 and November 21, 1973. The Commission members, well versed in the racing industry, had the Stewards’ report, the testimony of the various witnesses for both sides and the opportunity to judge their credibility, the laboratory results, and all other facts surrounding this case at their disposal when deciding the case and imposing the penalty. Although the Commission approved the penalty without deliberation, we cannot say this was an unconstitutional abuse of power of application of the penalty provision.

Should the Commission be ordered to hold a pro forma deliberation in order to impose the same penalty? We think not. If there was any abuse of discretion by the Commission it is subject to rectification on appeal. The trial court found no such abuse, and with its finding, we agree. The Commission did not deviate from the policy and intent of its constitutional delegation of power from the Legislature. Administrative procedure requires that the final decision be in writing or stated in the record. Both were done, and the plaintiff was notified by a formal decision of the Commission. It would be incongruous to render nugatory a valid agency determination for lack of a pro forma deliberation. Plaintiff’s contention is without merit.

The trial court judgment is imminently correct and will be affirmed. It is further ordered that the three year suspension of Ronald Briley shall become effective upon final judgment of this court. Ronald Briley is to pay all costs of this appeal.

AFFIRMED.

FORET, J., dissents with reasons.

FORET, Judge,

dissenting.

I do not believe that the statutes under which plaintiff’s trainers license was suspended pass constitutional muster.

LSA-R.S. 4:150 A states that:

“The granting of a license to a trainer shall make him responsible for and be the absolute insurer of the condition of the horses he enters regardless of the acts of third parties...”

Plaintiff alleges that this statutory provision creates an irrebuttable presumption of guilt and is thus unconstitutional in its application. I tend to agree.

      . Tom Briley pleaded “no contest.” No appeal was taken on his behalf.

      . Section 155 was amended by the Legislature in 1978. It now reads as follows:
      “The commission may impose upon a licensee a fine not exceeding ten thousand dollars and may suspend a license indefinitely, or both. Any commission action taken herein shall be consistent with the provisions of this Part.”
      This section merely increases the maximum fine which can be imposed, however, it leaves the imposition of penalties to the discretion of the commission.

      . Ronald Briley had a record of several violations of racing rules where sanctions had been imposed. These past violations were as follows:
      “6/18/68 Evangeline Downs, La.: Fined $25 for taking horse to gate prior to running of 8th race, 6/14 without the proper equipment. (34:32:239)
      9/19/68 Evangeline Downs, La.: Fined $25 for sending horse to gate 9/12 without the proper equipment. (34:54:447)
      8/4/72 Evangeline Downs, La.: Fined $25 for failing to have foal papers of his entry, “Iris Bar,” 3rd race, 8-4, on file with the Racing Secretary; causing a late scratch of horse. (38:49:434)
      8-5-72 Evangeline Downs, La.: Fined $50 for failure to have foal papers of his entry, “Roman Patrol,” 7th race, 8-5, on file with Racing Secretary; causing a late scratch of horse. (38:49:434)
      9-8-72 Evangeline Downs, La.: Following a report from the Shilstone Testing Laboratory, official chemist for the LSRC, that the urine sample taken from the 3 year old colt “Custus Dandy Man”, trained by him, winner of 3rd race on 9-1, proved positive for the drug Amphetamine and/or a derivative thereof, the Stewards concluded that the drug contained in the sample could have produced analgesia in, stimulated or depressed the horse or could have masked or screened a drug that could have produced analgesia in, stimulated or depressed the horse and could have affected the performance or speed of the horse. Trainer Briley having been given a hearing on 9-8 conducted by Stewards of Evangeline Downs is suspended pursuant to the Louisiana SRC’s Rules of Racing, rule # 6 paragraphs (p) and (s) and his case is referred to the Commission with recommendation that he be suspended for sixty (60) days; 9-9 thru 11-7. Trainer Ronald Briley is denied access to all race tracks under the jurisdiction of the LSRC and horses trained and owned by him are refused entry until such time as their transfer is approved by the Stewards. The purse money for the 3rd race, 9-1, is ordered redistributed as follows: 1st, “Bad Bandit”; 2nd, “Zeff Walters”; 3rd “Green Goddess”; 4th “Becky’s Bounder” and 5th “Cause Ima Rebel”. The pari-mutuel payoff is in no way affected by this ruling. (38:61:563 & 564) 9-21-72 Louisiana SRC: Ruling of Stewards dated 9-8 is upheld and he is suspended 60 days, 9-9 thru 11-7, and is denied access to all race tracks under the supervision of the Louisiana SRC. (38:63:576)

        4-25-73 Evangeline Downs, La.: Fined $100 for a change of equipment on his entry in 2nd race, 4-22, without permission from the stewards. (39:32:187)
      8-3-73 Evangeline Downs, La.: Fined $50 for making entry of an ineligible horse. (39:62:458)”