author: BOUTALL, Judge. SCHOTT, Judge,

text:
    Buhlar O. PRATS v. Louise H. MOFFETT et al.
    No. 11314.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 12, 1980.
    Rehearing Denied Jan. 19, 1981.
    Johnston & Duplass, Robert M. Johnston, New Orleans, for Buhlar O. Prats, plaintiff-appellee-appellant.
    Schafer & Schafer, Timothy G. Schafer, New Orleans, for United Services Automobile Assn., defendant-appellant.
    Before BOUTALL, SCHOTT, and SAR-TAIN, JJ.
   BOUTALL, Judge.

This appeal arises from a judgment of the trial court awarding $180,000 in damages for personal injuries suffered in a rear end collision.

On April 21, 1978 in the early afternoon the plaintiff, Mrs. Buhlar O. Prats, was travelling in a southerly direction on Belle Chasse Highway when she stopped for a traffic signal. Shortly thereafter, her vehicle was struck from the rear by a car being driven by the defendant Mrs. Louise H. Moffett. The plaintiff suffered damages to her automobile as well as personal injuries.

Mrs. Prats filed suit against Mrs. Louise Moffett, James Moffett as owner of the car being driven by Mrs. Moffett, United Services Automobile Association and the Tiavel-ers Insurance Co. as the auto liability carriers of the Moffetts. Subsequently, plaintiff voluntarily dismissed her suit against Travelers. The remaining defendants answered and pleaded the affirmative defense of contributory negligence. Upon conclusion of the trial in this matter, the lower court awarded judgment in favor of Mrs. Prats in the amount of $180,000 against the United States Automobile Association. James and Louise Moffett were not named in the judgment.

On appeal the issue before us is the validity of the quantum award made by the trial court. United Services Automobile Assoc., as appellant contends that the quantum award to the plaintiff-appellee was excessive and should be reduced. Mrs. Prats, as appellee, in her answer to the appeal prays that the amount of quantum be increased from $180,000 to $300,000. Appellee also requests that Louise H. Moffett be cast in judgment as a party defendant and that the judgment be amended so as to the name United Services Automobile Association in judgment instead of United States Automobile Association.

I

The evidence reveals that after the accident occurred the plaintiff went to the home of her daughter were she resided. Mrs. Prats was very upset and not feeling well, so she went to bed for the rest of the day. The next morning she continued to feel poorly and was taken to the emergency room of Southern Baptist Hospital. The plaintiff complained of pain in her upper extremities including her back, neck and head, two black eyes and spots in front of her eyes. We will discuss briefly the injuries complained of by the plaintiff.

Neck and back injuries:

Three days after the accident on April 24, 1980, the plaintiff visited the office of Dr. Bernard L. Manale, an orthopedist. He diagnosed the plaintiff’s injuries as a severe cervical sprain with a possible ruptured disc. He prescribed a collar to be used by the plaintiff, as well as medication in the form of Pereodan, a narcotic, and Triavil, an anti-depressant, for the purpose of reducing the pain and muscle spasms experienced by the plaintiff in her upper extremities. X-rays revealed that Mrs. Prats had degenerative joint disease at several levels of her neck.

The plaintiff returned to Dr. Manale’s office one week later on May 1, 1978 complaining of continuous neck pains. Dr. Ma-nale described the range of motion in plaintiff’s neck as 15% on a scale of 100%. Over the course of the next 2V2 weeks the plaintiff’s condition failed to improve. Consequently she was admitted to St. Charles General Hospital on May 17, 1978 for treatment. At that time Dr. Manale made the following diagnosis in relation to the plaintiff’s injury to her upper extremities: 1.) acute cervical lumbar strain; 2.) degeneration joint disease, cervical and lumbar spine; and 3.) cervical radiculopathy, due to trauma. Items No. 1 and 3 were the proximate result of the accident and item No. 2 was rendered symptomatic as a result of the trauma experienced from the accident. This diagnosis was based on the performance of several tests including x-rays and a myelogram. The plaintiff also experienced a central nervous system disorder and symptoms of brain injury which will be discussed below. Upon discharge 12 days later the plaintiff was prescribed several medications. Due to the effect of these medications the plaintiff was required to severely curtail her physical activities including no driving or prolonged trips outside the house.

On June 19, 1978, or approximately 2 months after the accident, the plaintiff visited Dr. Manale’s office for the third time since the previous period of hospitalization. At that time, Dr. Manale described the range of motion in plaintiff’s neck as 50% which represented a 35% improvement. Subsequently, the plaintiff was hospitalized on two occasions for reasons unrelated to the cervical injuries. The plaintiff visited Dr. Manale once or twice a month over the next 3 months. On Sept. 6, 1978, or 4V2 months after the accident, Dr. Manale in an examination of the plaintiff, indicated that the range of motion in the plaintiff’s neck had improved to 75%.

The plaintiff visited Dr. Manale on October 16, 1978 or approximately 6 months after the accident. Dr. Manale examined Mrs. Prats and concluded that she had a normal range of motion in her neck. This conclusion is supported by the testimony of the defendant’s expert, Dr. James Williams. Dr. Manale further concluded that the plaintiff had a 15% permanent physical impairment of the body as a whole which was attributable to the cervical spondylosis reactivated by the trauma of the accident. Dr. Williams reached a different view finding that plaintiff had completely recovered from the accident. This latter conclusion is highly suspect as it was based on one 10 minute physical examination of the plaintiff and a few x-rays taken in December of 1978. No consideration was given to any of the previous hospital records or the x-rays compiled on her. Finally, Dr. Manale concluded that the plaintiff would have to be reexamined every 2 to 3 months for an indefinite period of time.

Brain Injury:

On the morning after the accident, the plaintiff complained of 2 black eyes and seeing black spots in front of her eyes. However, examination by Dr. Manale 3 days after the accident serves to dispute the plaintiff’s complaint of black eyes. He testified that, he did not see this on the plaintiff nor did he find any other physical evidence of a blow to her head as there were no bruises, abrasions or cuts. At first glance this would lead one to conclude that the plaintiff could not have suffered any damage to her brain. However, both Dr. Mary, the plaintiff’s treating internist and Dr. Dysart, the plaintiff’s treating neurologist, testified that an individual could suffer brain damage without having suffered the physical signs of a severe blow or without having lost consciousness. Dr. Mary testified that:

“You see, you have to ... to understand the acceleration factor. In other words a man can break a concrete block with his hand and not bruise his hand. The brain is a very soft tissue and the skull is very rigid. So a severe enough acceleration-deceleration motion can give someone damage which later causes symptoms, without being knocked or rendered unconscious and without having large abrasions or cuts.” P. 228.

These opinions are directly applicable to this case. Mrs. Prats experienced vomiting, difficulty in walking, spots in front of her eyes and temper tantrums during the period of time between the emergency room visit the day after the accident and three weeks later when she was first hospitalized. This is reflected by the testimony of Dr. Manale and the plaintiff’s daughter. Drs. Mary and Dysart indicated that the problems experienced by Mrs. Prats are characteristic of post traumatic encephalopathy, also known as post concussion syndrome. Mrs. Prats continued to exhibit these problems, as well as rambling speech and headaches, during the period of her first hospitalization from May 17 to 29,1978. This led Drs. Mary and Dysart to conclude that the plaintiff had suffered an injury to the brain or post traumatic encephalopathy. Various medications were prescribed to the plaintiff so as to improve her condition.

Following discharge the plaintiff continued to experience the symptoms of post concussion syndrome, including vomiting, nausea and ataxia. The plaintiff was hospitalized on July 10,1978 for a stomach disorder known as reflux esophagitis. Although Mrs. Prats had a previous history of this problem, Dr. Mary testified that this condition was caused by the accident. During this period of time, the plaintiff also received treatment for the problems she experienced in connection with her brain injury. It should be noted that the plaintiff was hospitalized for a third time, which was attributable to high blood pressure and hypertension. It is doubtful that this was accident related.

Up until the time of trial, or one year after the accident, the plaintiff continued to experience the various problems associated with post concussion syndrome, although to a lesser degree. Both Dr. Dysart and Dr. Mary opined that the plaintiff’s condition had improved somewhat. Dr. Dysart gave the following prognosis: “Over the last year, she’s continued to gradually improve slowly, with some periodic dips. She is apparently not functioning as she was before, but on the other hand, she’s allowed some degree of dysfunction by her age, simply her age. She apparently has not been able to build herself psychologically back with the same defense mechanisms to be comfortable to be going out to be with friends, so, I think things are quite guarded, and that she’ll need a lot of support. She could go ahead and continue at this rate, and come back. She may not quite make it back.”

Dr. Mary also made a prognosis. He stated: “I think she’s reached a plateau and she’ll probably continue at this level for a while. It’s possible she’ll improve.”

Finally, Dr. Dysart indicated that Mrs. Prats has a possibility of incurring epileptic seizures in the future. To control this situation as well as the other problems experienced by the plaintiff, she will continue to have to take several medications.

The defendant’s expert, Dr. William Martin, a neurologist, upon examination of the plaintiff concluded that she had no indication of brain damage. This expert’s testimony is discounted because of several factors: the examination conducted by Dr. Martin was very brief and occurred over 7 months after the accident; he testified that he did not have enough information to determine if the plaintiff had suffered a brain injury as a result of the accident; and the basis for his conclusion of no brain injury was not objective as the doctor did not review all of the medical records compiled on the plaintiff.

Besides considering the nature and severity of the injuries experienced by the plaintiff, we also have to examine the effect that these injuries have had on the lifestyle of Mrs. Prats. The evidence reveals that the plaintiff, a woman of 65 years of age, was in good health prior to the time of the accident. This is supported by the testimony of Dr. Lynn Hickman who examined the plaintiff one month prior to the accident. Mrs. Prats led a very active lifestyle prior to the accident. She worked part time in her nephew’s restaurant five or six days per week serving as a waitress, cook, and cashier at various times. The plaintiff travelled back and forth across the river three times a week to take her grandchildren to school. She played cards twice a month and took an occasional trip with her friends. Mrs. Prats resided with her daughter and participated in many of the daily family chores. Since the time of the accident the plaintiff has had to severely curtail her activities due to the hallucinations, ataxia, headaches, nausea experienced by her. It is unclear as to the exact effect of the medications taken by the plaintiff, but there is little doubt that it also has played a role in contributing to the plaintiff’s condition. She is no longer able to drive, play cards, or take trips. Furthermore, Mrs. Prats spends the majority of her waking hours in bed. Thus, there has been a drastic change in the plaintiff’s lifestyle as a result of the accident.

The judgment of the trial court was a lump sum award of $180,000. There was no division of general and special damages. In examining the record we find that the plaintiff has exhibited past medical and hospital expenses in the amount of $8,113.44. This does not include the expenses of the third period of hospitalization as the plaintiff has failed to prove that this was accident related. Estimated future medical expenses are $20,000. Total special damages amount to $28,113.44.

II

In considering the validity of the trial court’s award of quantum we are obligated to apply the reasoning expressed in Reck v. Stevens, 373 So.2d 498 (La.1979). It states:

“[3] Thus, the initial inquiry must always be directed at whether the trier court’s award for the particular injuries and their effects upon this particular injured person is, a clear abuse of the trier of fact’s ‘much discretion,’ La.Civ.C. art. 1934(3) in the award of damages. It is only after articulated analysis of the facte discloses an abuse of discretion, that the award may on appellate review, for articulated reason, be considered either excessive, Carollo v. Wilson, 353 So.2d 249 (La.1977); Schexnayder v. Carpenter, 346 So.2d 196 (La.1977), or insufficient, Olds v. Ashley, 250 La. 935, 200 So.2d 1 (1967). Only after such determination of abuse has been reached, is a resort to prior awards appropriate under Coco for purposes of then determining what would be an appropriate award for the present case.”

In its reasons for judgment the trial court concluded that the plaintiff proved by a preponderance of the evidence that the physical and mental problems experienced by the plaintiff were caused by the accident. The trial court made the award of quantum based on the past and future medical and mental problems that have been and will be experienced by the plaintiff as well as the effect that these problems have had in severely altering the lifestyle of the plaintiff from one of much activity' to one of virtual inactivity.

In considering the nature and severity of the injuries experienced by the plaintiff, the past and future effect that these injuries have had and will have on the plaintiff’s way of life, the special damages, and the trial court’s reasons for judgment, we do not find that there has been an abuse of discretion by the trial court. Accordingly, we affirm the judgment awarding $180,-000 to the plaintiff. We amend the judgment to east United Services Automobile Association in judgment instead of United States Automobile Association.

The finding by the trial court that the injuries experienced by the plaintiff were caused by the accident establishes liability not only on the part of United Services Automobile Association as an insurer but also on the part of Louise H. Moffett as driver of the automobile which struck the plaintiff’s car. As previously indicated we do not find that the trial court abused its discretion in reaching this determination as to causation. Consequently the decree casting only United Services Automobile Association in judgment must be amended so as to also include Louise H. Moffett.

AMENDED AND AFFIRMED.

SCHOTT, J., concurs.

SCHOTT, Judge,

concurring.

The general damage award of over $150,-000 can only be justified if plaintiff did suffer brain damage as a result of the accident and if all of the symptoms she seems to have at this time are caused by the brain damage and not by the drugs she is taking.

From my own review of the testimony I am satisfied that plaintiff did not prove her case by a preponderance of the evidence, and I would dissent except for the guide lines for appellate review set out in Arceneaux v. Dominque, 365 So.2d 1330 (La.1978) Dyson v. Gulf Modular Corp., 338 So.2d 1385 (La.1976) and Canter v. Koehring Co., 283 So.2d 716 (La.1973). The evidence which convinces me that plaintiff did not receive a permanent injury to her brain in this accident consists of the testimony of those physicians who examined her for defendant, including a doctor of internal medicine, an orthopedist and a neurosurgeon. However, in the Arceneaux case, the court said that even though the appellate court may consider its own evaluations as reasonable as the trial judge’s the appellate court should not disturb reasonable findings of the trial court when there is conflict in the testimony. This is precisely what we have here with plaintiff’s internal medicine specialist, the orthopedist and especially the neurosurgeon, Dr. Dysart, all attributing plaintiff’s symptoms to brain damage caused by the accident.

In the application of the cited cases from the Supreme Court I feel that I have no alternative but to affirm the judgment even though I believe an award of $50,000 plus special damages would be adequate compensation for the injuries caused by the accident.


source: Caselaw Access Project

author: BOUTALL, Judge.

license: Public Domain

text:
    Suzanne Noland HOWELL, w/o Evan Park Howell, v. Evan Park HOWELL.
    No. 11357.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 12, 1980.
    Rehearing Denied Jan. 19, 1981.

      Ronald P. Whittington, Kenner, for Evan Park Howell, appellant.
    Henican, James & Cleveland, C. Ellis Henican, Jr., New Orleans, for Suzanne No-land Howell, appellee-respondent.
    Before BOUTALL, SCHOTT and SAR-TAIN, JJ.
   BOUTALL, Judge.

This appeal arises from a judgment of the trial court in changing the awards of child custody, alimony, and child support granted in a previous consent judgment.

The plaintiff, Evan Park Howell, was married to the defendant, Suzanne Noland Howell on June 3,1961. Of the union three children were born. Marital relations between these two parties broke down in 1975 resulting in a judgment of separation by default in favor of Mrs. Howell and which awarded to her custody of the 3 minor children. More than 1 year later, on December 30, 1976, Dr. Howell obtained a judgment of divorce a vinculo matrimonii by default. On March 9, 1977, judgment of permanent custody of the minor children was entered in favor of Mrs. Howell. Also, Dr. Howell was ordered to pay permanent child support in the amount of $750 per month and permanent alimony in the amount of $350 per month. One year later, in response to motions by both parties for changes in both the alimony and child support awards, the trial court entered judgment increasing the award of child support to $850 per month and made no change in the award of alimony. Subsequently these parties sought a second change in the trial court’s permanent award of alimony and child support. On July 7, 1978, a consent judgment was entered requiring Dr. Howell to pay alimony in the amount of $500 per month and child support in the amount of $400 per month. Additionally, Dr. Howell was required to pay the school expenses of the 3 minor children, their medical and dental expenses and an allowance for each child.

In the case before us, Dr. Howell filed a motion for a change of custody for his minor daughter Elizabeth Howell and for a reduction in the amount of alimony and child support. Mrs. Howell responded by requesting that there be no change in the consent judgment previously entered or, in the alternative, that the awards of alimony and child support be increased. This matter came for hearing on Nov. 16, 1979. The trial court entered judgment awarding custody of Elizabeth Howell to her father, and changing the previous awards of alimony and child support to the amounts of $400 and $500 per month respectively. Additionally, Dr. Howell was required to pay the school, dental, medical expenses of the other two children remaining in the custody of Mrs. Howell. From this judgment, Dr. Howell has appealed devolutively, assigning as error the ruling of the trial court as to alimony and child support. Mrs. Howell answered the appeal requesting that she be granted custody of the minor child, Elizabeth Howell, and that the amounts of alimony and child support be increased.

I

The first issue before us for consideration concerns the validity of the trial court’s judgment changing the previous award of custody of the minor child Elizabeth Howell from her mother to her father. LSA-C.C. Art. 157 (as amended in 1979) establishes the standard to be used in determining the award of permanent custody. It states: “In all cases of separation and divorce, permanent custody of the child or children shall be granted to the husband or the wife, in accordance with the best interest of the child or children, without any preference being given on the basis of the sex of the parent.” The standard is no longer the maternal preference or double burden rules as they are merely aids in determining what in fact is in the best interest of the children. Schexnayder v. Kincke, 372 So.2d 742 (4th Cir. 1979); Delatte v. Delatte, 358 So.2d 974 (1st Cir. 1978); McCarstle v. McCarstle, 356 So.2d 491 (1st Cir. 1977). Furthermore, it is well established that the conclusion reached by the trial court in child custody cases is entitled to great weight and will not be disturbed unless there has been a clear showing of an abuse of discretion. Howard v. Howard, 339 So.2d 1275 (1st Cir. 1976); Stevens v. Stevens, 340 So.2d 584 (1st Cir. 1976); Schexnayder, supra.

A review of the testimony in the record reveals that Elizabeth Howell is 15 years of age and a sophmore in high school. Approximately 6V2 months before the trial of this matter, Elizabeth moved in with her father. Her change of residence, though voluntary and with the consent of her mother, was precipitated by the somewhat strained relations between Mrs. Howell and her daughter. Prior to her departure, Elizabeth indicated to her mother on several occasions that she would prefer to live with her father. Mrs. Howell responded by suggesting that Elizabeth should move in with her father. The discontent existing between Mrs. Howell and her daughter is supported by the fact that they see one another only one or twice a month. The lifestyle being provided to Elizabeth by her father is financially better than most children her age as it includes personal use of a car, countryclub membership, and fashionable clothes. Despite the above evidence there is no doubt that Mrs. Howell continues to have a deep love and concern for her daughter.

In view of the foregoing evidence, we conclude that the trial court did not abuse its discretion in finding that the interests of Elizabeth Howell would be served best by changing the award of custody from her mother to her father.

II

A second issue presented for consideration is the validity of the judgment of the trial court in reducing the award of permanent alimony from $500 to $400 and in increasing the award of permanent child support from $400 to $500.

The Louisiana jurisprudence establishes that a consent judgment of alimony is not subject to modification unless a change of circumstances supporting the modification is proved. Bernhardt v. Bernhardt, 283 So.2d 226, 229 (La.1973); Johnson v. Johnson, 357 So.2d 69 (4th Cir. 1978). This rule applies to child support awards as well as alimony awards. Laird v. Laird, 363 So.2d 244 (4th Cir. 1978); Gennaro v. Gennaro, 306 So.2d 756 (4th Cir. 1975). The change in circumstances must occur during the period of time between the date of the consent judgment and the date of the rule for modification of the award of child support and alimony. Bernhardt, supra. The party requesting a modification of a support award bears the burden of proving a change in the financial condition of one of the parties. Cole v. Cole, 338 So.2d 152 (2d Cir. 1976); Rachal v. Rachal, 250 So.2d 560 (1st Cir. 1971). Finally, the jurisprudence clearly establishes the rule that an award of alimony and child support are within the sound discretion of the trial court and will not be disturbed on appeal in the absence of a clear showing of an abuse of discretion. Nicolle v. Nicolle, 308 So.2d 377 (4th Cir. 1975); Fakouri v. Perkins, 322 So.2d 401 (3rd Cir. 1975).

Regarding the modification of the alimony award, a review of the evidence reveals that there has been a change in the monthly income of Mrs. Howell between the time of the award of alimony in the consent judgment and the date of the rule for modification of this form of support. Formerly, Mrs. Howell’s net earnings were approximately $700 per month. At the time of the rule, her net earnings were approximately $900 per month. This increase in monthly income is a sufficient change in circumstances to warrant a modification of the award of alimony. Woods v. Woods, 338 So.2d 178 (2d Cir. 1976). Accordingly, the trial court in reducing the award of permanent alimony from $500 to $400 did not abuse its discretion.

In considering the child support award, LSA-C.C. Art. 227 establishes that both parents have the obligation of supporting, educating, and maintaining their children. Alimony awarded in fulfillment of this obligation must be granted in proportion to the needs of the child and the circumstances of the parent who is to pay. LSA-C.C. Art. 231. Cowen v. Cowen, 375 So.2d 118 (3d Cir. 1979). Moreover Ducote v. Ducote, 339 So.2d 835 (La.1976) establishes that: “* * * * if the parents are divorced and the children are living with their mother, the children are entitled to the same standard of living as if they resided with their father whenever the financial circumstances of the father permit.” Also see Wilmot v. Wilmot, 223 La. 221, 65 So.2d 321 (1953).

In Cowen v. Cowen, supra, the above rules were applied. There the wife sought an increase in the award of permanent alimony and child support from the in globo award of $250 per month on the grounds that the husband’s income and the expenses of the children had increased greatly since the previous award. In the interim between the time of the previous award of support and the rule for increase in support, the oldest of the 3 minor children left the mother’s household and went to live with the father. The facts further reveal that the husband’s income increased from $800 per month to approximately $2,077. In considering the wife’s motion the court upheld the trial court’s judgment increasing the award of support. The court stated:

“* * * * after carefully considering the totality of these circumstances, including the substantial increase in defendant’s salary, we do not believe that the trial court abused its wide discretion by ordering an increase of $75.00 per month, despite the fact that plaintiff has one less child to support.”

In the case before us the evidence reveals that the income of Dr. Howell has increased substantially. At the time of the consent judgment, his income was approximately $2,500 per month and at the time of the rule his income increased to a minimum of $6,000 per month. This represents an increase of $3,500 per month. The evidence further reveals that the second child of the marriage, Elizabeth, has transferred her residence from her mother’s home to that of her father’s, thereby leaving Mrs. Howell with only 2 children in her custody. However, the testimony indicates that the minor child Elizabeth enjoys a better standard of living by residing with her father than do the other two children who reside with Mrs. Howell. Under the principle established in Ducote, supra, the two minor children are entitled to the same standard of living as that furnished to Elizabeth by her father because the healthy financial condition of the father so permits. Also, the facts in the case before us are very similar to those in Cowen, supra, wherein the court permitted an increase in support where the income of the husband increased substantially, despite the fact that the wife had one less child to support. Accordingly, application of the jurisprudence and the statutory rules cited above to the instant case dictates a finding that the trial court did not abuse its discretion in increasing the award of child support from $400 to $500 per month.

Ill

One final issue for consideration is Dr. Howell’s request that the award of child support be apportioned as per child because of the fact that one of the two children remaining in the custody of Mrs. Howell has reached the age of majority while this matter is on appeal. He contends that fulfillment of his request would eliminate the necessity of a further modification of the support. The trial court refused this request. In view of the current jurisprudence we hold the trial court acted correctly. The jurisprudence reflects the view that an award of child support may not be modified, reduced, or terminated unless proper suit is brought, operation of law occurs, or a conventional obligation suspending the award is entered into between the parties. The obligation of support does not terminate by operation of law when a child reaches the age of majority. Moga [Dubroc] v. Dubroc, 380 So.2d 672 (La.1980); Halcomb v. Halcomb, 352 So.2d 1013 (La.1977); Marshall v. Marshall, 390 So.2d 1365 (1980). In view of the fact that proper suit has not been brought and there is no evidence of a conventional obligation suspending the award in the record, Dr. Howell’s request cannot be granted.

For the reasons assigned above, the judgment of the trial court is hereby affirmed.

AFFIRMED.


author: SCHOTT, Judge.

text:
    Leander H. PEREZ, Jr. et al. v. PLAQUEMINES PARISH COMMISSION COUNCIL, et al.
    No. 11689.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 12, 1980.
    Rehearing Denied Jan. 19, 1981.

      Camille F. Gravel, Jr. and Susan M. Theisen, Gravel, Robertson & Brady, Alexandria, Michael S. Fawer and Matthew H. Greenbaum, New Orleans, for defendants-appellants.
    Jerald N. Andry and Gilbert V. Andry, III, New Orleans, for plaintiffs-appellees.
    Before BOUTALL, SCHOTT and SAR-TAIN (assigned), JJ.
   SCHOTT, Judge.

Leander H. Perez, Jr., District Attorney of Plaquemines Parish, and one of his employees, Arthur 0. Cope, obtained a preliminary injunction against the Plaquemines Parish Commission Council and four of its five members, Luke A. Petrovich, Albert J. Beshel, Michael E. Kirby and Lennard H. Mackenroth, enjoining them from spending any public funds for any investigation relating to Perez and Cope. From that judgment defendants have appealed. The issue is whether Ordinance No. 248 adopted by the Council on January 23, 1980, and a companion resolution adopted on February 13,1980, exceeded the limitations placed on the Council by the Constitution and laws of the State of Louisiana, and, if so, whether plaintiffs were entitled to the relief they obtained in the trial court.

In assigning his reasons for granting the injunction the trial judge focused his attention on the final paragraph of the resolution which provides as follows:

“BE IT FURTHER RESOLVED that it is in the public interest that the Plaque-mines Parish Commission Council be and it is hereby authorized to pursue any proper and legal recourse for the removal, recusal, impeachment or recall of the present District Attorney for the Parish of Plaquemines, Leander H. Perez, Jr.”

The trial judge reasoned that this language caused the resolution and the ordinance to be stricken with constitutional infirmity because of the prohibition established by Art. XI, § 4 of the Louisiana Constitution of 1974:

“No public funds shall be used to urge any elector to vote for or against any candidate or proposition, or be appropriated to a candidate or political organization. This provision shall not prohibit the use of public funds for dissemination of factual information relative to a proposition appearing on an election ballot.”

We are convinced that the trial judge’s resolution of the problem was only a partial solution, his injunction was overly broad, and the injunction must be modified so as to enable defendants as public officials to exercise their rights and discharge their obligations.

Plaquemines Parish operates under a home rule charter adopted by the people in November, 1966. That charter contains a number of pertinent provisions concerning the power of the Parish Council. For instance, Art. II, § 3, of the charter authorizes the Parish Council to do the following:

* * * * * *
“6. Conduct investigations, with the right to issue subpoenas for the production of books and papers, and summonses to compel the attendance of witnesses and their examination under oath to secure data and information helpful in the adoption of Ordinances to carry out the objects and purposes of this Charter; and to secure evidence regarding the violation of any provisions of this Charter or Ordinances.”
sk ¡‡:
“15. Regulate public health, morals, peace and good order of the people within the Parish of Plaquemines in any and all matters not prohibited by State law.”

Art. II, § 4, provides:

“The Parish Council shall have full power and authority to conduct and operate the government of the Parish of Plaquemines and of the other political subdivisions and districts situated therein, in any and all matters not prohibited by state law.”

Defendants contend that these provisions of the Charter are sufficiently broad to authorize the action they took and that their authority was reinforced by the fact that the home rule Charter of Plaquemines Parish was already in existence at the time of the passage of the Constitution of 1974, so that Art. VI, § 4, of the Constitution is pertinent to the issues:

“Every home rule charter or plan of government existing or adopted when this constitution is adopted shall remain in effect and may be amended, modified, or repealed as provided therein. Except as inconsistent with this constitution, each local governmental subdivision which has adopted such a home rule charter or plan of government shall retain the powers, functions, and duties in effect when this constitution is adopted. If its charter permits, each of them also shall have the right to powers and functions granted to other local governmental subdivisions.”

While portions of the ordinance and resolutions might be authorized by the charter and constitution, the problem is with other portions which infringe upon the constitution and statutory powers of the District Attorney, the source of which is Art. V, § 26(B) of the Louisiana Constitution of 1974:

“Except as otherwise provided by this constitution, a district attorney, or his designated assistant, shall have charge of every criminal prosecution of the state in his district, and be the representative of the state before the grand jury in his district, and be the legal advisor to the grand jury. He shall perform other duties provided by law.”

In the implementation of this constitutional provision, the legislature adopted C.Cr.P. Art. 61, which provides as follows:

“Subject to the supervision of the attorney general, as provided in Article 62, the district attorney has entire charge and control of every criminal prosecution instituted or pending in his district, and determines whom, when, and how he shall prosecute.”

The only constitutional limitation on the plenary grant of powers to the district attorney with respect to criminal prosecutions in the parish is found in Art. IV, § 8, which provides:

* * * Jfc * *
“As necessary for the assertion or protection of any right or interest of the state, the attorney general shall have authority .... (3) for cause, when authorized by the court which would have original jurisdiction and subject to judicial review, (a) to institute, prosecute, or intervene in any criminal action or proceeding, or (b) to supersede any attorney representing the state in any civil or criminal action.”

C.Cr.P. Art. 62, provides: “The attorney general shall exercise supervision over all district attorneys in the state.”

The office of district attorney belongs to the judicial branch of the government as outlined in Art. V of the Constitution of 1974, while the Plaquemines Parish Commission Council’s powers are executive and legislative. Thus, relations between the council and the district attorney are controlled by Art. II, § 2, of the Constitution which provides:

“Except as otherwise provided by this constitution, no one of these branches, nor any person holding office in one of them, shall exercise power belonging to either of the others.”

The preamble of the ordinance accuses the district attorney of using his office to persecute members and employees of the council by bringing charges and indictments against various individuals and expresses the council’s intention to interfere with the district attorney’s activities in this regard. Sec. 1(3) authorizes a public investigation and hearing “regarding criminal charges filed and to be filed by the district attorney, and Sec. 1(11) calls for an investigation with respect to the embezzlement of public funds by various employees of the district attorney as well as activities of the district attorney which allegedly aid and assist “persons charged with a crime by the Plaquemines Parish Commission Council.” Sec. IV of the Ordinance would authorize the Council to: “File appropriate Criminal or Civil Proceedings against any person, firm or corporation which may be appropriate and as the circumstances and results of the investigations demand.”

The preamble of the resolution accuses the district attorney of misusing his powers with respect to a special grand jury investigating public corruption in the parish, and alleges that the district attorney has a conflict of interests. It further accuses the district attorney of “persecution” of various individuals involved with the formation of a second bank in the Parish, assisting an individual who is being prosecuted for criminal charges of theft from the parish, using his office for his own financial gain, especially with respect to the Delta Bank & Trust Company of which the district attorney is allegedly the principal stockholder and an officer, misusing public property and facilities, bringing false charges against various employees of the council, being guilty of misconduct and malfeasance by failing to function as legal adviser to various governmental agencies in the parish, violating the secrecy of grand jury proceedings under his supervision by releasing information to the news media, and condoning crimes of abuse and brutality against citizens by investigators employed by him. The preamble of the resolution concludes as follows:

“WHEREAS, because of the foregoing compelling public interest, the preservation of individual rights, the preservation of the ordinary functions of government vested in the Plaquemines Parish Commission Council, the interests of justice and common decency dictate that the present District Attorney for the Parish of Plaquemines, Leander H. Perez, Jr., should be recused, removed, impeached and recalled as District Attorney immediately in order to prevent irreparable injury and harm to the local governing body of the Parish of Plaquemines, to individuals and to the individual rights of the taxpayers and citizens of Plaquemines Parish, by a biased District Attorney driven by a compelling self-interest, personal animosity and bias;”

If the accusations made in the ordinance and resolution can be substantiated it would follow that the district attorney has abused his office and should be subjected to the penalties provided for by the constitution and laws of this state. They include impeachment, removal and recall provided for by Art. X, §§ 24, 25, and 26 as implemented by R.S. 42:1411 et seq. with respect to removing public officers, and R.S. 18:1300.1 et seq. with respect to recall. Under these provisions, the impeachment can be initiated only by the legislature, removal, by the attorney general, and recall, by the electors of the district.

The Plaquemines Parish Commission Council has no authority to investigate the district attorney in connection with impeachment or removal, since these procedures are initiated and conducted by the legislature and the attorney general respectively. As to the right of the council to conduct investigation for purposes of generating a recall of the district attorney, we have concluded that such activity would be inconsistent with the constitution.

Both §§ 24 and 25 make public officials liable to impeachment and removal for the same reasons, namely, “commission or conviction, during his term of office of a felony or for malfeasance or gross misconduct while in such office.” Thus, the successful use of these provisions depends upon proof of misconduct on the part of the public official. On the other hand, the recall provision, § 26 seems to be purely political in that, “The sole issue at a recall election shall be whether the official shall be recalled.” No reasons are given in the recall petition and the election is conducted the same as any other political contest. Thus, there may be some merit to the trial judge’s conclusion that the council’s use of the public funds to conduct an investigation leading to the recall of the district attorney violates Art. XI, § 4 of the Constitution’s prohibítion that “no public funds shall be used to urge any elector to vote for or against any candidate or proposition ...” However, we will not address this issue because we reach the same result on other grounds.

Since the overwhelming import of the accusations contained in the ordinance and resolution is that the district attorney has committed acts which make him vulnerable to impeachment and/or removal, and since the constitution has placed responsibility for the implementation of these procedures with others in such a way as to preserve the concept of separation of powers among the branches of government, the action taken by the Council to involve itself in these procedures was beyond the scope of its own constitutional authority. Because the ordinance and resolution are concerned in large measure with purposes and endeavors which are beyond the constitutional authority of the Council and indeed purport to interfere with the constitutional functions of the district attorney the trial court could properly enjoin the Council from the implementation of the particular ordinance and resolution under discussion. However, the judgment appealed from goes much further, enjoining the council from spending any public funds for any investigation relating to Leander H. Perez, Jr. and Arthur 0. Cope.

Much of what is contained in the ordinance and resolution has to do with the council’s authority over and control of parish funds and property. For instance, in the preamble of the ordinance there is a direct reference to a dispute over the Plaquemines Parish Criminal Court fund which the Parish has an interest in by virtue of R.S. 15:571.11. Under the statutory scheme for the administration of this fund the district attorney is authorized to share in this fund only for the purposes enumerated in R.S. 16:6 but the council is authorized to pay from its general fund only items of expense which are enumerated in that statute. Under R.S. 15:571.11(C) one-half of the surplus left in the fund at the end of the year belongs to the parish. Therefore, the council is justified in questioning how the funds are being spent by the district attorney. Another concern expressed in the ordinance and resolution is the status of parish funds on deposit in the only bank in the parish, which bank is allegedly controlled by Leander H. Perez, Jr. His activities with respect to the bank would not be related to his official duties, and if he as a private individual serving as a bank official is causing administrative problems for the parish in the use of its funds, the council has the right to investigate this problem and inquire into plaintiff’s involvement with it. Without unnecessarily prolonging this discussion, we have concluded that the parish has no right to interfere with the district attorney in his official capacity or to usurp his prosecutorial functions but it may investigate with respect to the property and equipment belonging to the parish, including the activities of Leander H. Perez, Jr. and Arthur 0. Cope, in their individual capacities relating to parish funds, property and equipment. Furthermore, the council may investigate the expenditures of Leander H. Perez, Jr. as District Attorney insofar as they relate to the criminal court fund and to the extent as may be necessary for the council to comply with the provisions of R.S. 15:371.11 and R.S. 16:6.

Accordingly, the judgment appealed from is annulled and set aside and the injunction as issued is dissolved but is recast as follows:

IT IS ORDERED, ADJUDGED AND DECREED that the rule herein be made absolute and that a preliminary injunction issue herein directed to defendants, Plaque-mines Parish Commission Council, Luke A. Petrovich, Albert J. Beshel, Michael E. Kirby and Lennard H. Mackenroth, enjoining them from implementing Ordinance No. 248 adopted on January 23, 1980, and the resolution adopted on February 13, 1980.

ANNULLED AND SET ASIDE INJUNCTION RECAST.

APPENDIX A

PLAQUEMINES PARISH COMMISSION COUNCIL ORDINANCE NO. 248

The following Ordinance was offered by Commissioner Kirby who moved its adoption:

WHEREAS, since 1967 there have been two high ranking public officials in the Parish of Plaquemines, namely Leander H. Perez, Jr., District Attorney, and his brother, Cha-lin 0. Perez, President of the Plaquemines Parish Commission Council, the parish governing body, who are both sons of the late Judge L. H. Perez who was District Attorney of Plaquemines Parish and then President of the Plaquemines Parish Commission Council; and

WHEREAS, Leander H. Perez, Jr., and Chalin 0. Perez, personally and as public officials are products and beneficiaries of a parish administration, founded, organized and headed by their father, Judge L. H. Perez; and

WHEREAS, since the death of Judge Perez in March, 1969, there have developed differences between these two brothers concerning affairs both private and public in nature, which, among others involve disputes over both private funds and public finances, controversies over parish funds, the Plaque-mines Parish Criminal Court fund, the purchase and control of a parish seaplane, ex parte orders affecting parish financial accounts, parish funds on deposit in the Delta Bank and Trust Company (of which Leander H. Perez, Jr., is Chairman of the Board), the investment of Parish Funds, the formation and organization of other banks in the Parish of Plaquemines, including a new bank known as the Mississippi River Bank, and the operation of their private interests; and

WHEREAS, these differences have now increased and developed to where there is no communication between these two brothers and where it is alleged that the District Attorney, Leander H. Perez, Jr., is burdened with both a pervasive conflict of interest and a personal animosity as they both apply to his brother, Chalin 0. Perez, President of the Plaquemines Parish Commission Council, members of the Plaquemines Parish Commission Council who serve with Chalin 0. Perez and employees of the Plaquemines Parish Commission Council, to such an extent that he is intent upon the destruction of his brother, Chalin 0. Perez, and other members of the Plaquemines Parish Commission Council, the Plaquemines Parish Commission Council as governing body of the Parish of Plaquemines and any and all employees of the Plaquemines Parish Commission Council aligned with its President or any of its members; and WHEREAS, it is definitely established that within the last several months through the news media, furtherance of that now malevolent intent, the said District Attorney, Leander H. Perez, Jr., has orchestrated a publicity campaign designed to create an aura of public misconduct on the part of the officials and employees of the Plaquemines Parish Commission Council resulting in a series of tortious defamation against such persons; and

WHEREAS, the said District Attorney, Leander H. Perez, Jr., and his investigators are conducting a campaign of harassment, threats, intimidations and coercions, entrapment and other terror tactics against members and employees of the Plaquemines Parish Commission Council and against other honest, hardworking citizens of the Parish of Plaquemines; and

WHEREAS, the said District Attorney, Leander H. Perez, Jr., has caused to be brought charges and indictments against employees of the Plaquemines Parish Commission Council, including the Superintendent of Heavy Equipment, Superintendent of Beautification, Superintendent of Buras Maintenance and other employees of the Plaquemines Parish Commission Council who collectively represent 65 years of honest, dedicated public service under the administration of Judge L. H. Perez, Leander H. Perez, Jr., and Chalin 0. Perez, and who also collectively represent over 100 years of loyalty and dedication to the Perez political family; and

WHEREAS, the charges and indictments against these Plaquemines Parish employees include criminal charges from having no decals on parish vehicles and equipment, to unauthorized use of parish equipment, to payroll fraud, to thefts over $100.00, to thefts over $500.00, to thefts over $40,000.00 and finally to three counts of perjury against one parish employee who has less than a seventh grade education; and

WHEREAS, each of these employees so charged is claiming his innocence and is denying any guilt; and

WHEREAS, it has been suggested that the charges and indictments are questionable, not legitimate and null and void in that they are the products of a disqualified District Attorney who is burdened with conflicts of interests biased, prejudiced and animosity and is the very target of any investigation into criminal wrong doings such as unauthorized use of public property, payroll fraud, and misconduct among others; and

WHEREAS, despite the charges by the District Attorney or the claims of innocence by the employees of the Plaquemines Parish Commission Council this Council is burdened with the responsibility of protecting the public interest and at the same time preserving the individual rights and liberties of the persons charged and therefore must take objective and definitive action with respect to these employees charged and with respect to any other employees who may be charged by the District Attorney, Leander H. Perez, Jr., in order to determine whether the employment of these persons should be terminated, suspended or continued and whether these employees are the innocent victims of the persecution, abuse, prejudice, bias and selfish conflict of interest of the District Attorney Leander H. Perez, Jr. and are therefore entitled as a matter of right to a presumption of innocence rather than a presumption of guilt which the District Attorney has willfully bestowed upon them by his actions and whether these employees are entitled to the preservation of their individual rights and liberties which if violated, impaired and denied by this Council would further result in irreparable injuries to them and to the people of Plaquemines Parish, and in the tar-nishment, impairment and denial of the fair and impartial administration of justice.

NOW THEREFORE:

BE IT ORDAINED BY THE PLAQUE-MINES PARISH COMMISSION COUNCIL THAT:

Section I

The Plaquemines Parish Commission Council, authorized and empowered pursuant to its Charter of Local Self-Government to conduct investigations and hearings into the matters aforesaid hereby resolves itself into an investigative body according to the procedures herein established for the following purposes:

(1) Pursuant to Article II Section 3(6) under Plaquemines Parish Charter of Local Self-Government, to conduct investigations, with the right to issue subpoenas for the production of books and papers and summons to compel the attendance of witnesses and their examination under oath, to secure data and information helpful in the adoption of Ordinances to carry out the objects and purposes as established and authorized in the Plaquemines Parish Charter of Local Self-Government; and to secure evidence regarding the violation of any provisions of said Charter, or of any parish Ordinances, rules and regulations, or of any state and federal laws.
(2) Publicly investigate, conduct hearings, make regulations and take any action necessary to operate the government and to have the care, management and control of the Parish of Plaquemines and all other political subdivisions and districts therein and to enhance the health, safety, morals, peace and good order of the people within the Parish of Plaquemines in any not prohibited by State law, and to prevent injury, the destruction of or interference with public property, private property, and the rights and liberties of individuals.
(3) Publicly investigate and conduct hearings regarding criminal charges filed or which may be filed by the current District Attorney, or any against any presently employed parish employee or by any Grand Jury or law enforcement agency to which he is legal advisor or by any other agency of any government resulting from his direct or indirect actions in order and to preserve the individual rights and liberties of these employees charged and to maintain a stable and orderly function of government.
(4) Determine the employment status of any parish employee so charged.
(5) Publicly study, examine and investigate the management, operation, affairs, expenditures and revenues of any and all departments, districts and agencies of the Plaquemines Parish Commission Council and to make written reports, findings and recommendations so that this Council may reevaluate all of its procedures with respect to the operation of any department or agencies of the Parish of Plaquemines.
(6) Publicly study, examine and investigate the use of funds, revenues, properties, equipment and other assistance appropriated or provided to any office of parish government, fhe Plaquemines Parish School Board, the Office of the District Attorney, the Sheriff, the Clerk of Court, the Assessor, and any other office, department or agency.
(7) To publicly study, examine and investigate the use of funds, revenues, properties and equipment and sources of any revenues, funds or monies by the Parish of Plaque-mines, its agencies, departments or districts.
(8) Publicly study, examine and investigate present ordinances, practices, operations and procedures with respect to the organization, supervision, direction, and control and use of any and all Parish funds, services, equipment or assistance.
(9) Publicly study, examine and investigate sufficiency, adequacy, and desirability of present ordinances, resolutions, practices and procedures with respect to the organization, supervision and direction of all parish property, all parish funds, revenues and expenditures in the parish and of all departments, district agencies and officials of the parish government to determine efficiency, sufficiency, adequacy and desirability.
(10)Publicly study, examine and investigate present ordinances, practices, regulations and procedures with respect to the supervision and accounting of funds, revenues, services, equipment or other assistance provided by the Plaquemines Parish Commission Council to any agency or office of government to determine their proper use, efficiency, adequacy or desirability.
(11) Publicly investigate, study and examine the present controversy and charges between the Plaquemines Parish Commission Council, its members and employees and the District Attorney, Leander H. Perez, Jr. and his officers and employees involving, but not exclusively, the admitted embezzlement of funds by the former Parish Internal Auditor, the alleged embezzlement of funds by the former Administrator of the Plaque-mines Parish General Hospital, pending court actions, banking interests, the control and use of parish and public equipment, services and properties by any and all parish officials and the deliberate series of tortious defamation by the District Attorney against the Plaquemines Parish Commission Council its individual members and employees which aids and assists persons charged with a crime by the Plaquemines Parish Commission Council.
(12) Any and all matters, activities, or relationships which may or do affect any of the matters hereinabove specified and which are or may be to the best interest of the peace, welfare and dignity of the people of Plaque-mines Parish.

SECTION II

Subpoenas or summons shall be authorized by the Plaquemines Parish Commission Council and signed by the Secretary of the Plaquemines Parish Commission Council. Whenever any person summoned under this section neglects or refuses to obey such summons or to produce the books, papers, records or other data or to give testimony as required the Plaquemines Parish Commission Council shall apply with proper Judge of the District Court for the District in which the person so summoned resides or is found for an attachment against him as for a contempt. It shall be the duty of the Judge to hear the application, and, if satisfactory proof is made, to issue an attachment directly to some proper officer for the arrest of such person and upon his being brought before the said Judge to proceed to a hearing of the case and upon such hearing the Judge shall have power to make such order as he shall deem proper not inconsistent with the law but the punishment of contempt to enforce obedience to the requirement of the summons and to punish such person for his default or disobedience.

SECTION III

Employ a Court Stenographer to record and transcribe proceedings and sworn testimony and to administer oaths and to employ investigators, Attorneys at Law and any experts or employees as in the opinion of the Plaquemines Parish Commission Council is needed and proper and as the circumstances demand.

SECTION IV

File appropriate Criminal or Civil Proceedings against any person, firm or corporation which may be appropriate and as the circumstances and results of the investigations demand.

SECTION V

To immediately start public hearings in order to expeditiously accomplish the above and foregoing purposes.

Commissioner Beshel seconded the motion to adopt the Ordinance.

The foregoing Ordinance having been submitted to a vote, on roll call, the vote resulted as follows:

YEAS: Commissioners Luke A. Petro-vich, Albert J. Beshel, Michael E. Kirby and Lennard H. Mackenroth
NAYS: None.
ABSENT: None.
PRESENT BUT NOT VOTING: Commissioner Chalin 0. Perez (recused)

And the Ordinance was declared adopted on this the 23rd day of January, 1980.

I hereby certify the above and foregoing to be a true and correct copy of an Ordinance adopted by the Plaquemines Parish Commission Council at a special meeting held at its office in the Courthouse, Pointe ala Hache, Louisiana, on January 23, 1980.

/s/ E. Lafrance

Secretary

APPENDIX B

RESOLUTION

The following Resolution was offered by Commissioner Petrovich who moved its adoption:

WHEREAS, Leander H. Perez, Jr., District Attorney in and for the Parish of Plaque-mines, State of Louisiana and Chairman of the Board of the Delta Bank and Trust Company is engaged in a conflict against the Plaquemines Parish Commission Council, its individual members and employees, and against officers, directors and stockholders of the Mississippi River Bank and against other citizens of the Parish of Plaquemines; and,

WHEREAS, Leander H. Perez, Jr., as District Attorney, has caused a constant stream of public statements for circulation by the news media, a series of tortuous defamations against honest parish officials and employees of the Plaquemines Parish Commission Council, and against citizens of the Parish of Plaquemines, and furthermore has caused criminal charges to be filed against parish officials and employees where there existed no intent on the part of such victimized persons to violate any laws; and,

WHEREAS, Leander H. Perez, Jr., as District Attorney for the Parish of Plaque-mines, is presently legal advisor to and is assisting a Special Grand Jury in the Parish of Plaquemines allegedly to investigate matters of purported public “corruption” in the Parish of Plaquemines involving among others — no decals on parish vehicles, unauthorized use of parish equipment, payroll fraud, theft, and extortion; and,

WHEREAS, Leander H. Perez, Jr., as District Attorney, has a hopeless conflict of interest involving his sworn duty as an elected public official and his personal financial revenues, properties, benefits and gains among which are particularly listed as follows:

1. Leander H. Perez, Jr., as District Attorney, has attempted to usurp the orderly functions of government vested in the Plaquemines Parish Commission Council in order to serve his personal interests in the unauthorized use of parish properties and in the investment and deposit of Parish public funds in the Delta Bank and Trust Company of which he is Chairman of the Board.
2. Leander H. Perez, Jr., as District Attorney and Chairman of the Board of the Delta Bank and Trust Company, has attempted to manipulate and control to his advantage the public funds belonging to the people of Plaquemines Parish held in trust by the Plaquemines Parish Commission Council.
3. Leander H. Perez, Jr., as District Attorney, has engaged in an unwarranted investigation and deliberate persecution of officers and stockholders of the Mississippi River Bank in order to protect his special interest and the interests of the stockholders and board members and officers of the Delta Bank and Trust Company — of which he is Chairman of the Board and a major stockholder.
4. Leander H. Perez, Jr., as District Attorney, has assisted the defendant, Michael M. Chauppette, in Chauppette’s defense of criminal charges of theft now pending against Chauppette in Plaquemines Parish.
5. Leander H. Perez, Jr., as District Attorney, has a hopeless conflict of interest as District Attorney involving his personal financial benefits and gains in the Delta Bank and Trust Company; in oil, gas and other mineral royalties and revenues from public lands owned by Plaque-mines Parish and other public lands, and from oil, gas and other mineral overrides on properties owned by private citizens in Plaquemines Parish.
6. Leander H. Perez, Jr., as District Attorney and as Chairman of the Board of the Delta Bank and Trust Company, is assisting in the defense of civil actions by the Plaquemines Parish Commission Council representing the citizens of Plaquemines Parish against the Delta Bank and Trust Company for restitution of certain public funds due the taxpayers and citizens of Plaquemines Parish and has caused the institution of civil actions by the Delta Bank and Trust Company against the Plaque-mines Parish Commission Council and its individual members so as to protect the vested interests of Leander H. Perez, Jr., and other officers and stockholders of the Delta Bank and Trust Company — all to the great harm and irreparable injury of the citizens and taxpayers of the Parish of Plaquemines.
7. Leander H. Perez, Jr., as District Attorney, has charged and accused the Plaquemines Parish Commission Council, its members and employees of criminal wrongful use of public properties and facilities when he, himself has such compromising and conflicting interests as District Attorney to protect himself against being investigated, indicted or otherwise accused for his own wrongful criminal conduct and misuse of public equipment, properties and facilities — such as public oil, gas and other mineral interests, public aircraft, public properties in Main Pass and Port Eads, misuse of parish vehicles, and Parish materials, and use of Parish employees on parish time at his private property at Idlewild Ranch and on his private house boats and on his private duck blinds.
8. Leander H. Perez, Jr., as District Attorney, has charged and accused Plaquemines Parish Commission Council members and employees of payroll fraud when he himself is a legitimate target of such investigation and charges.
9.Leander H. Perez, Jr., as District Attorney, has charged and accused the Plaquemines Parish Commission Council, certain individual members and employees, of theft of public properties when he himself is a legitimate target of such charges, accusations and investigations.
10. Leander H. Perez, Jr., as District Attorney, has caused to be indicated on television that a member of the Plaquemines Parish Commission x Council is being investigated for extortion when he himself is a legitimate target of such charges, accusations and investigations relating to threats, intimidations and harassment of officers, organizers and stockholders of the Mississippi River Bank and in his dealings and negotiations in his personal financial interest from oil, gas and other mineral royalties derived from public lands and private lands located within the Parish of Plaquemines.
11. Leander H. Perez, Jr., as District Attorney, has caused the widespread circulation and publication in the New Orleans Area of a series of defamatory remarks, false statements, innuendos and speculations against the Plaquemines Parish Commission Council, its members and employees, and citizens of Plaquemines Parish accusing them of various wrongdoings when he himself is a legitimate target of such actions.
12. Leander H. Perez, Jr., as District Attorney, has caused speculation and defamation against the members of the Plaquemines Parish Commission Council for not properly conducting the affairs of their office when he himself is a legitimate target of investigation for misconduct and malfeasance not only in the above matters but in failing to perform his duties as District Attorney as legal advisor to the Plaquemines Parish School Board, as legal advisor to the Plaquemines Parish West Bank Levee District and as legal advisor to the Plaquemines Parish General Hospital — having not attended one meeting with such boards nor has he ever conducted any business or given any advice to such boards as he is compelled to do under the provisions of statutory law.
13. Leander H. Perez, Jr., as District Attorney, has continually violated the constitutionally and statutorily-mandated secrecy of the Grand Jury by causing to be publicized on television, radio and the written news in the New Orleans area names of grand jury witnesses, the nature of such witnesses’ testimony given before such grand jury, the area of investigation by the grand jury and the persons targeted for such investigations so as to slander, libel and defame innocent parish officials, employees and citizens of Plaquemines Parish.
14. Leander H. Perez, Jr., as District Attorney, has caused the Delta Bank & Trust Company to resist and prevent the Plaquemines Parish Commission Council, as governing body of the Parish of Plaquemines, from investing and depositing any public funds with any bank other than the Delta Bank and Trust Company of which he is Chairman of the Board and a principal stockholder and of which his family and other members of the Perez family are major stockholders.
15. Leander H. Perez, Jr., as District Attorney, has admittedly, in sworn testimony conducted an investigation — as District Attorney — of his own bank and has attempted to show no wrong-doings and no necessity for any investigation in the affairs of that bank in connection with the embezzlement and theft of over two hundred fifty thousand dollars of public funds by Michael M. Chauppette — former Internal Auditor for the Plaquemines Parish Commission Council, which funds were passed through accounts in the Delta Bank and Trust Company by unauthorized and forged signatures.
16. Leander H. Perez, Jr., as District Attorney, is a defaulter — for being in arrears for money due the Plaque-mines Parish Commission Council for his utilization of the Port Eads Marina — for holding and preventing the restitution of public funds by and for the Plaquemines Parish Commission Council against Michael M. Chauppette the Delta Bank and Trust Company or any responsible individuals — and by manipulating and controlling the Plaquemines Parish Commission Council Criminal Court Fund through ex parte court orders issued simply on his written request.
17. Leander H. Perez, Jr., as District Attorney, has caused the widespread circulation and publication in the news media that he and the Special Grand Jury to which he is legal ad-visor are investigating officials and private companies doing business with Marathon Oil Company when in truth and in fact Leander H. Perez, Jr., himself, through his company “Delta Development Company”, is presently doing business with Marathon Oil Company — a business venture which Leander H. Perez, Jr. refuses to investigate because he has classified such as his “private business”.
18. Leander H. Perez, Jr., as District Attorney, has condoned a long tenure of repeated crimes of abuse and brutality against helpless individuals by investigators employed by him and responsible to him as District Attorney when in his sworn duty is to uphold the law protect the innocent and prosecute malefactors such as his own employees.

WHEREAS, Leander H. Perez, Jr., as District Attorney and Chairman of the Board of Delta Bank and Trust Company and legal advisor to the Special Grand Jury now convened in Plaquemines Parish, is able to obtain, solicit and utilize information derived from testimony given to the Special Grand Jury and derived from all civil lawsuits involving the Delta Bank and Trust Company and the Plaquemines Parish Commission Council in order to further his selfish interest, benefits and gains and in order to manipulate the evidence and testimony involved so as to enable him to protect and conceal his own conflicts of interest and in order to protect and conceal any wrongdoings or criminal conduct that may be directed to him or to any employees or officers of his bank; and,

WHEREAS, Leander H. Perez, Jr., as District Attorney, through the manipulation and control of the Plaquemines Parish Commission Council Criminal Court Fund, the lawsuits involving the Delta Bank and Trust Company and the Plaquemines Parish Commission Council, and the public funds on deposit with the Delta Bank and Trust Company — of which he is Chairman of the Board and a principal stockholder, has presented a grave and imminent danger to the people of Plaquemines Parish in that the public funds in the care, custody and control of the Plaquemines Parish Commission Council are subject to manipulation, control and gross misuse by Leander H. Perez, Jr., acting in the dual capacities of District Attorney and Chairman of the Board of Delta Bank and Trust Company all against the best interests of the taxpayers and people of Plaquemines Parish; and WHEREAS, because of the foregoing compelling public interest, the preservation of individual rights, the preservation of the ordinary functions of government vested in the Plaquemines Parish Commission Council, the interests of justice and common decency dictate that the present District Attorney for the Parish of Plaquemines, Leander H. Perez, Jr., should be recused, removed, impeached and recalled as District Attorney immediately in order to prevent irreparable injury and harm to the local governing body of the Parish of Plaque-mines, to individuals and to the individual rights of the taxpayers and citizens of Plaquemines Parish, by a biased District Attorney driven by a compelling self-interest, personal animosity and bias;

NOW, THEREFORE:

BE IT RESOLVED that the Plaquemines Parish Commission Council hereby authorizes the institution of any and all necessary and proper legal steps to insure that an impartial investigator is appointed to conduct a proper and impartial investigation into the business and affairs of the government, governing bodies and public offices and officials of the Parish of Plaquemines,

BE IT FURTHER RESOLVED that it is in the public interest that the Plaquemines Parish Commission Council be and it is hereby authorized to pursue any proper and legal recourse for the removal, recusal, impeachment or recall of the present District Attorney for the Parish of Plaque-mines, Leander H. Perez, Jr.

Commissioner Kirby seconded the motion to adopt the Ordinance.

The foregoing Ordinance having been submitted to a vote, on roll call, the vote resulted as follows:

YEAS: Commissioners Luke A. Petro-vich, Michael E. Kirby, Albert J. Beshel and Lennard H. Mackenroth
NAYS: None.
ABSENT: None.
PRESENT BUT NOT VOTING: Commissioner Chalin 0. Perez (recused)

And the Resolution was declared adopted on this the 13th day of February, 1980.

I hereby certify the above and foregoing to be a true and correct copy of a Resolution adopted by the Plaquemines Parish Commission Council at its special meeting held at its office in the Courthouse, Pointe ala Hache, Louisiana, on February 13, 1980.

/s/ E. Lafrance Secretary

      . In order to facilitate the reading and understanding of this opinion, Ordinance No. 248 is attached as appendix “A”, and the resolution adopted on February 13, 1980, attached as appendix “B”.

      . The author of this opinion sees an inherent contradiction between the ideal of separation of powers expressed in Art. II, § 2, of the Constitution and the mechanism established by R.S. 15:571.11 and R.S. 16.6 for the administration of the Criminal Court Fund. We say on one hand that the Council may not infringe upon the prosecutional prerogatives of the District Attorney, but, on the other hand, the Council may investigate to see that the money the District Attorney takes from the Fund is spent only for the purposes spelled out in R.S. 16.6. Any inquiry into the use of these funds necessarily places the Council in the position of infringing on the District Attorney’s prosecuto-rial functions, and yet the Council would not discharge its duty with respect to the Fund if it simply gave the District Attorney a blank check. Perhaps this case points up the need for the abolition of the Criminal Court Fund in its entirety. The District Attorney of a Parish might function more independently — and properly — if his office were funded wholly by the state and fines and forfeitures generated by his efforts were deposited in the state and parish treasuries with no strings attached to the District Attorney. Nonetheless, under the law as presently written it appears that the Commission Council and the District Attorney of Plaquemines Parish may continue to push and shove each other with little if any restraint from the court. Ultimately the responsibility rests with these parties to resolve their differences and restore mutual cooperation and respect.


author: CHEHARDY, Judge.

text:
    Isaac FRANKLIN v. J. A. JONES CONSTRUCTION CO. et al.
    No. 11325.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 12, 1980.
    Tooley, Waldmann & Weidner, Lester J. Waldmann, Gretna, for plaintiff-appellant.
    Thomas L. Gaudry, Jr., René A. Pastorek, Gretna, for Aetna Cas. and Surety Co., defendants-appellees.
    Before SAMUEL, GARRISON and CHE-HARDY, JJ.
   CHEHARDY, Judge.

Plaintiff, Isaac Franklin, appeals a summary judgment in the trial court dismissing defendant Aetna Casualty and Surety Company (Aetna) from his suit for personal injuries allegedly sustained while in the course and scope of his employment with J. A. Jones Construction Company (Jones).

Plaintiff originally filed suit against Jones, its board of directors, stockholders and officers; and Aetna, claiming that Jones, through its officers, foremen and supervisors, was negligent and that said negligence was the cause of plaintiff’s resulting personal injuries.

The plaintiff also filed a supplemental and amending petition, joining in various other engineers and supervisors, none of whom were personally named insureds in Aetna’s policy.

On the date of the accident there was in force a comprehensive liability policy of Aetna in which the named insureds were J. A. Jones Construction Company Limited; Canada & Queens Properties Inc.; Livsey, Inc.; J. A. Jones International Inc. and Graphics Management, Inc.

Jones was dismissed from the suit on the peremptory exception.of no cause of action, and that judgment is not appealed.

The only issue presented on appeal is whether the liability policy in question provided coverage of Franklin’s injuries.

The policy contained the following endorsements:

“ADDITIONAL INSURED (ENGINEERS, ARCHITECTS OR SURVEYORS)
IT IS AGREED THAT SUCH INSURANCE AS IS AFFORDED BY THE BODILY INJURY LIABILITY COVERAGE AND PROPERTY DAMAGE LIABILITY COVERAGE APPLIES, SUBJECT TO THE FOLLOWING PROVISIONS:
1. THE WORD ‘INSURED’ ALSO INCLUDES ANY ARCHITECT, ENGINEER OR SURVEYOR ENGAGED BY THE NAMED INSURED BUT ONLY WITH RESPECT TO LIABILITY ARISING OUT OF THE PREMISES OF THE NAMED INSURED OR OPERATIONS PERFORMED BY OR FOR THE NAMED INSURED.
2. THE INSURANCE WITH RESPECT TO SUCH ARCHITECTS, ENGINEERS OR SURVEYORS DOES NOT APPLY TO BODILY INJURY OR PROPERTY DAMAGE ARISING OUT OF ANY PROFESSIONAL SERVICES PERFORMED BY OR FOR THE NAMED INSURED, INCLUDING
(A) THE PREPARATION OR APPROVAL OF MAPS, PLANS, OPINIONS, REPORTS, SURVEYS, DESIGNS OR SPECIFICATIONS AND
(B) SUPERVISORY, INSPECTION OR ENGINEERING SERVICES.
3. THIS COVERAGE APPLIES TO THE INSUREDS OPERATIONS ON AN OFFICE BUILDING AT THE CORNER OF MAIN, MURPHY & COMMERCE STS., DALLAS, TEXAS.
PREMIUM TO BE DETERMINED AT 10% OF THE BODILY INJURY AND PROPERTY DAMAGE PREMIUM FOR THIS JOB.
* * * * * *
ADDITIONAL INSURED
It is agreed that the ‘Persons Insured’ provision is amended to include any employee of the NAMED INSURED while acting within the scope of his duties as such, but the insurance afforded to such employee does not apply:
I. to BODILY INJURY to (a) another employee of the NAMED INSURED arising out of or in the course of his employment or (b) the NAMED INSURED or, if the NAMED INSURED is a partnership or joint venture, any partner or member thereof * * * It
The bodily injury liability policy also contains the following provisions:
“Exclusions
This insurance does not apply:
******
(i) to any obligation for which the insured or any carrier as his insurer may be held liable under any workmen’s compensation, unemployment compensation or disability benefits law, or under any similar law;
(j) to bodily injury to any employee of the insured arising out of and in the course of his employment by the insured, or to any obligation of the insured to indemnify another because of damages arising out of such injury; but this exclusion does not apply to liability assumed by the insured under an incidental contract;
******
II. PERSONS INSURED
Each of the following is an insured under this insurance to the extent set forth below:
******
(c) if the named insured is designated in the declarations as other than an individual, partnership or joint venture, the organization so designated and any executive officer, director or stockholder thereof while acting within the scope of his duties as such * *

We do not agree with the plaintiff that the above endorsements and provisions of the subject contract are, at least, ambiguous and therefore must be construed against the insurer. Rather, we hold that the terms of the policy are clear and unambiguous and refer to the case of Mauterer v. Associated Indemnity Corp., 332 So.2d 570 (La.App. 4th Cir. 1976), wherein this court noted the applicable law at page 572:

“ * * * When the terms of the policy are clear and unambiguous they form the law between the parties. RCC article 1901 and 1945; Jennings v. Louisiana and Southern Life Insurance Co., 280 So.2d 291 (La.App. 1st Cir. 1973). The words in an insurance policy are to be understood in the common ordinary sense without resort to grammatical rules. RCC article 1946; Schwegmann Bros. Giant Supermarkets v. Underwriters at Lloyd’s, London, 300 So.2d 865 (La.App. 4th Cir. 1974).”

Neither can we agree that the terms of Section “j” noted above under “Exclusions” and the terms of “1” listed under the exclusions of coverage under “Additional Insured” refer to only the employees of executive officers, directors or stockholders in the latter instance and the employees of architects, engineers or surveyors in the former instance and that, therefore, employees of only the company itself are not excluded. Rather, we hold that an understanding of the contract in the ordinary sense excludes coverage of the situation in this case, and once more refer to Mauterer, supra, wherein the court interpreted an exclusion almost identical to the one in the present case at pages 572-573:

“The second issue deals with coverage under the terms of the comprehensive automobile liability policy. Plaintiffs’ contention is that if Mauterer was killed loading an ‘automobile’ then the automobile policy ought to apply. Defendants again point to an exclusion in that policy, excluding the persons involved.
“The exclusion at issue is on page 3 of the policy under the section,
‘Persons Insured’
* * * * * *
‘None of the following is an insured (i) any person while engaged in the business of his employer with respect to bodily injury to any fellow employee of such person injured in the course of his employment; . .. ’
“It is not at issue that Mauterer was in the course of his employment when killed and that the negligence complained of by plaintiffs arose solely from the executive officers engaging in the business of the Sam P. Wallace Company. The sole issue becomes are the executive officers to be included within the meaning of the words ‘fellow employee’?
“This exclusion is commonly known as the ‘cross-employee exclusion’ and its intent is to deny coverage to employees that have a remedy under the Workmen’s Compensation Act. Manuel v. Liberty Mutual Insurance Co., 256 La. 480, 236 So.2d 807 (S.Ct.1970); Myers v. Fidelity and Casualty Company of New York, 152 So.2d 96 (La.App. 3d Cir. 1963).
“The question of whether an executive officer is an ‘employee’ within the meaning of the cross-employee exclusion has recently been answered in the federal courts, Heiser v. Gibson, 386 F.Supp. 901 (E.D.La.1974). The court in Heiser, citing Manuel v. Liberty Mutual Insurance Co., supra, held that in determining whether an executive officer is an employee it is proper to look to the Workmen’s Compensation Act. LSA R.S. 23:1044 states that executive officers are deemed to be employees for purposes of receiving compensation benefits. This being true they ought to also be employees for purposes of interpreting an insurance contract provision, the intent of which is to exclude persons with a remedy under the Workmen’s Compensation Act.”

In the case of Kelley v. M and M Dodge, Inc., 370 So.2d 1267 (La.App. 3d Cir. 1979), the rationale of Mauterer, supra, was also followed in interpreting a similar cross-employee exclusion, and that court also concluded an executive officer should be considered a “fellow employee” under the terms of the exclusion. Although, in the present case, the terms “any employee of the insured” and “another employee of the named insured” are utilized, we hold the meanings of these exclusions to be identical to the insurance provisions discussed in Kelley, supra, and we conclude, therefore, that coverage is not afforded to the plaintiff in this instance.

Additionally, we find no merit in the plaintiff’s contention that the holding in the case of Credeur v. Luke, 368 So.2d 1030 (La.1979), is applicable to the present situation. In Credeur, supra, although the court held that a comprehensive general liability policy did not exclude the president of the company under cross-employee exclusionary provisions, the court specifically distinguished the case from Mauterer, supra, on the ground that the president of the corporation was individually named in the policy as an insured. The present case, therefore, is also distinguishable from Credeur, supra, on that basis.

Accordingly, the judgment of the district court is affirmed in all respects.

AFFIRMED.


author: SCHOTT, Judge. SAMUEL, Judge,

text:
    Mrs. Sheryl CHEATHAM, Individually and on Behalf of Her Minor Son, Charles Cheatham, v. The CITY OF NEW ORLEANS. In re CITY OF NEW ORLEANS et al. Applying for Writs of Certiorari and/or Review Directed to the Honorable Thomas A. Early, Jr., Judge, Civil District Court for the Parish of Orleans, Division “A”, No. 592-798. In re David J. DENNIS and Ernest Jones Applying for Writs of Certiorari, Prohibition, Mandamus and for a Stay Order Directed to the Honorable Thomas A. Early, Jr., Judge, Civil District Court for the Parish of Orleans, Division “A”, No. 592-793.
    Nos. 12067, 12084.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 24, 1980.
    Rehearing Denied Jan. 19, 1981.

      Ernest Jones, Harvey, David J. Dennis, Lafayette, for relator.
    Mack E. Barham, New Orleans, for respondent.
    John Paul Massicot, Douglas P. Wilson, Chief Deputy City Atty., New Orleans, for Dennis.
    Before SAMUEL, REDMANN and SCHOTT, JJ.
   SCHOTT, Judge.

We grant certiorari in order to examine the validity of two judgments of the trial court. In the first rendered October 16, 1980, the trial court overruled dilatory and peremptory exceptions filed by the City of New Orleans, and in the second rendered on November 4, 1980, the trial court made subpoenas duces tecum issued to Ernest Jones and David Dennis returnable on or before November 14, 1980, and issued a temporary restraining order against David Dennis from disposing of or otherwise processing funds in his possession previously paid to him in satisfaction of a judgment against the City of New Orleans and ordering him to deposit such sums in the registry of the court. For a complete understanding of the problem before us, a summary of the procedural steps is in order.

In Cheatham v. City of New Orleans, 378 So.2d 369 (La.1979) Mrs. Sheryl Cheatham obtained a judgment against the City of New Orleans and others for $619,000. This judgment became final when the court denied rehearing on January 11, 1980.

On March 21,1980, Luke Fontana, who is the respondent to these writ applications, filed a petition to intervene in suit No. 592-798 of the Civil District Court for the Parish of Orleans which was the original suit ultimately decided by the Supreme Court on January 11. In his petition respondent alleged that he had been employed by Mrs. Cheatham along with the firm of Cotton, Jones & Dennis to handle her claim against the City, with the understanding that he was to receive half of the attorney fees earned therein. He prayed simply for leave to file his petition of intervention along with a copy of the contract between Mrs. Cheatham, as client, and Cotton, Jones & Dennis and the respondent as attorneys and an affidavit in which respondent recited he was filing the contract pursuant to LSA R.S. 37:218.

In June, 1980, respondent filed a rule against the City of New Orleans to show cause why satisfaction of the judgment in this ease should not be made pursuant to the contract which he previously filed in these proceedings and also pursuant to R.S. 37:218.

The City of New Orleans responded with the dilatory exception of improper use of summary proceedings and peremptory exceptions of no cause or right of action based on respondent’s failure to file his intervention while the suit between the original parties was pending and before judgment became final.

On October 16,1980, the trial judge overruled these exceptions, dismissed a motion to quash the deposition of David Dennis and rescheduled that deposition for October 27, 1980.

On October 22, 1980, respondent caused a subpoena duces tecum to be issued to David Dennis ordering him to produce in the trial court on October 31, 1980, various contracts relative to the dispute over the fee as well as records of disbursements made to Sheryl Cheatham, his law firm and Mack Barham.

On November 4, 1980, the trial judge made the subpoenas duces tecum against Ernest Jones and David Dennis returnable on November 14, 1980 and issued the temporary restraining order with respect to funds in the hands of David Dennis.

On November 3 the City of New Orleans filed an application in this court for supervisory writs seeking a reversal of the judgment of October 16 overruling its exceptions.

On November 13 David Dennis and Ernest Jones filed an application in this court for supervisory writs seeking to set aside the trial court’s judgment of November 4 on the primary ground that the judgment overruling the City’s exceptions was erroneous and with the reversal of that judgment the judgment of November 4, which necessarily presupposed a valid pending suit would likewise fall.

In its application the City devoted a great deal of attention to attacking respondent’s petition for intervention filed in March, 1980. It is quite obvious that this “intervention” was a misnomer employed by respondent considering the provisions of LSA C.C.P. Arts. 1091 through 1094 with respect to intervention and considering that there was no suit pending in the trial court into which an intervention could be filed. However, regardless of the caption respondent put on his pleadings, his intention was to file the copy of his contract with Mrs. Cheatham and Dennis and Jones with the clerk of court and thereby comply with R.S. 37:218. In his rule to show cause respondent referred specifically to this filing of his contract and obtained an order against the City to show cause why the judgment should not be satisfied pursuant to his contract and the statute. Respondent claims entitlement to the use of summary proceedings on the theory that he is simply attempting to obtain a satisfaction of the judgment in which he has an interest. He asserts, in effect, that the City’s payment of the entire judgment to Mrs. Cheatham and Jones and/or Dennis in the face of the contract which he filed before payment was made, did not constitute satisfaction of the judgment since he did not receive any of the proceeds. Thus, his argument is based on two propositions, 1) he obtained an interest in the judgment by complying with R.S. 37:218, and 2) as a party holding an interest in the judgment which interest was not satisfied by the payment he is entitled to proceed by summary proceedings to obtain a satisfaction of his interest in that judgment.

By its own terms and by the court’s interpretation of R.S. 37:218 in Calk v. Highland Const. & Mfg., 376 So.2d 495 (La.1979) the statute is inapplicable. It provides protection to the attorney who is handling a pending suit against loss of his fee if the suit is settled between the adverse party and his client. The applicable statute in this case is R.S. 9:5001 which grants a privilege to attorneys to secure fees on judgments obtained by them.

In the instant case, the judgment in Mrs. Cheatham’s favor has been satisfied and the question to be resolved is whether the city has any liability to respondent for satisfying that judgment and ignoring respondent’s assertions that he was entitled to share in that judgment. The other question is the contractual dispute between respondent and Jones and Dennis. However, these are new causes of action which are not simply ancillary to the now final and completed case of Cheatham v. City of New Orleans.

Under LSA C.C.P. Art. 2592 summary proceedings may only be used in certain instances. The assertion of a claim for a money judgment by respondent against the City of New Orleans is not among those uses which are listed. We have concluded that the City is entitled to ordinary process and the dilatory exception of improper use of summary proceedings was erroneously overruled by the trial court. His judgment in this connection will be reversed. Because of this action taken on the dilatory exception it is unnecessary for us to address the exceptions of no right or cause of action but since our judgment will dismiss the proceedings filed by respondent against the City the judgment of November 4, 1980, with respect to subpoenas and the restraining order must necessarily be annulled.

The judgment of October 16, 1980, overruling the dilatory exception of improper use of summary proceedings filed by the City of New Orleans is reversed and set aside and there is judgment in favor of the City, maintaining its exception of improper use of summary proceedings and dismissing the claim of the respondent, Luke Fontana.

The judgment of November 4, 1980, is annulled and set aside. The stay order we issued on November 14, 1980, is recalled as moot.

All costs of these proceedings are taxed against respondent Luke Fontana.

WRITS PEREMPTORY REVERSED AND ANNULLED.

SAMUEL, J., concurs with written reasons.

SAMUEL, Judge,

concurring with written reasons.

I agree with the opinion and decree of the majority.

Additionally, however, the intervention itself is impermissible. Under the specific wording of Code of Civil Procedure Article 1091 a third party is allowed to intervene only in a “pending action” and here the intervention was filed after the judgment had become final.

Accordingly, I respectfully concur.