author: GUIDRY, Judge. LABORDE, Judge,

text:
    CONCERNED CITIZENS OF RAPIDES PARISH and Lorena Pospisil, Plaintiffs-Appellees, v. Paul HARDY, Secretary of the Louisiana Department of Transportation and Development, Defendant-Appellant.
    No. 8110.
    Court of Appeal of Louisiana, Third Circuit.
    March 26, 1981.
    Dissenting Opinion March 30, 1981.
    Rehearing Denied May 11, 1981.

      William J. Doran, Jr., Baton Rouge, for defendant-appellant.
    Christopher J. Roy, Alexandria, for plaintiffs-appellees.
    Before DOMENGEAUX, GUIDRY, CUTRER, SWIFT and LABORDE, JJ.
   GUIDRY, Judge.

In this suit the plaintiffs, Ms. Lorena Pospisil and a group of people who style themselves as “Concerned Citizens of Rap-ides Parish” seek issuance of a permanent injunction and/or declaratory relief which would prevent the State of Louisiana, Department of Transportation and Development (hereafter DOTD) from going forward with the letting of bids and the construction of a vertical lift-style bridge over the Red River in Rapides Parish, Louisiana, on State Project No. 700-08-69. In support of their demand for the relief sought plaintiffs urge that DOTD has failed to comply with the provisions of the National Environmental Policy Act (42 U.S.C.A. § 4321 et seq.). Defendant filed exceptions of no right and no cause of action and an answer averring full compliance with NEPA and other laws of the State of Louisiana.

The exceptions were referred to the merits and after a lengthy hearing the exceptions were overruled and judgment was rendered by the trial court granting a preliminary injunction enjoining and restraining defendant from taking any further steps in connection with State Project 700-08-69 pending further orders of the court. From this judgment defendant has prosecuted this appeal.

Before proceeding to a discussion of the issues raised on appeal it is appropriate and necessary to set forth the factual circumstances giving rise to the instant litigation.

The cities of Alexandria and Pineville, Louisiana, are separated one from the other by the Red River. There are three bridges which cross the Red River in the immediate vicinity of these two cities, the O.K. Allen bridge, a high-rise bridge located some distance from the downtown area of the two cities; and, two lift-style bridges known as the Fulton Street and Murray Street bridges, which are located approximately 2000' apart, in and/or near the downtown area of both cities. Pursuant to State Project No. 700-08-69 the DOTD proposes to replace the existing “Murray Street” bridge, which connects downtown Alexandria and downtown Pineville, with a semi-high-level vertical lift span to be constructed approximately 400 feet northwest from the existing structure. After construction the bridge would connect Main Street in Pineville to Jackson Street in Alexandria.

Planning for the construction of the new bridge began in the year 1973. In the initial planning stages the DOTD informed local officials that a semi-high lift-style bridge serving the same traffic corridor was contemplated. Sometime in late 1973 or early 1974 the DOTD contracted with the firm of Palmer and Baker, an engineering firm of Mobile, Alabama, to prepare design proposals for a lift-style bridge to replace the existing Murray Street bridge. In addition to this action the DOTD began to make environmental studies for the purpose of ultimately complying with NEPA. On April 27, 1975, pursuant to 42 U.S.C. § 4332(2)(C), the DOTD prepared, in consultation with the Federal Highway Administration (hereafter, FHA), a document entitled “Environmental Assessment”. The latter document described the proposed action, the alternatives considered, and the probable social, economic and environmental impact of such action. Thereafter, along these same lines, a document entitled “Draft Negative Declaration” was prepared and filed on July 29, 1975. This latter document indicates that the proposed replacement of the Murray Street bridge will have no significant impact on the environment and that a “Negative Declaration” rather than an “Environmental Impact Study” is warranted under the provisions of NEPA. Petitioners point out that in neither of these documents was a high-rise bridge replacement considered as an alternative nor do such studies address the frequent openings of such proposed bridge for river traffic and the environmental impact such openings will have on traffic, air pollution, noise, loss of man hours.and expense to employers and employees etc.

On September 16, 1975 the DOTD conducted a “Corridor Location Public Hearing” in Alexandria. At this meeting interested persons were afforded an opportunity to express their views concerning the proposed location of the facility, its general design features and the environmental effects of the proposed project. Many persons in attendance at this hearing expressed the need for a high-rise bridge as opposed to a lift-style bridge although there was no real disagreement over the need for a new facility or that it should be located so as to keep the corridor at Jackson and Murray streets as proposed by the DOTD. Sometime following this hearing the DOTD contacted Palmer & Baker and requested a study regarding the feasibility of a highrise bridge at various locations but basically in the Jackson Street corridor. As a result of this study several alternatives were proposed by Palmer and Baker, however, none were acceptable. Two of the proposed alignments were unacceptable because such proposed projects could not be constructed with bridge replacement funds. Another alignment (the “Elliott Street Alignment”) was rejected because of its proximity to an existing hospital and the taking of properties adjacent to property belonging to the Catholic Diocese of Alexandria and because the touchdown point would have been well beyond Fourth Street. Another alignment, referred to in the record as Scheme 1, with a touchdown on Jackson Street was rejected because although structurally satisfactory it was geometrically imperfect. Following the latter study and on March 29,1978, the DOTD prepared and filed pursuant to 42 U.S.C. § 4332(2)(C) and 23 U.S.C. § 128(a) a “Final Negative Declaration” proposing to construct a vertical lift bridge as a replacement for the old “Murray Street” bridge. The “Final Negative Declaration” states as follows regarding the sufficiency of such declaration in lieu of a detailed environmental impact statement:

“The effect of the project on the air, noise, and water will be minimal as explained in Section 3. The relocations will be few and will not constitute a major disruption of the community. The existing and proposed land use will not be adversely affected. Construction impacts will be temporary, and the existing bridge will continue to be used until the new bridge is completed. Because the adverse environmental effects will be few and temporary, this project is not expected to cause any long-term ill effects to the cities of Alexandria and Pineville.”

The FHA concurred in the filing of the “Final Negative Declaration” and thereafter, presumably when the DOTD advertised for bids for the construction of the proposed bridge, this suit was instituted.

At trial on the merits, it was basically the position of plaintiffs that the proposed action by the DOTD was not preceded by a thorough investigation and study of the impact frequent openings of a vertical lift bridge would have on the environment. Particularly, plaintiffs urge that the studies do not consider or allude to the effect frequent bridge closures for the passage of water traffic will have on traffic in the downtown areas of Alexandria and Pine-ville; the cost to employers and employees of delays caused by bridge closures; and, the overall loss in productivity. In this same vein, plaintiffs contend that the consideration and study by Palmer and Baker and the DOTD of high-rise bridge alternatives was perfunctory and that neither ever seriously and conscientiously studied or considered the high-rise bridge alternatives available to the Alexandria-Pineville area. Plaintiffs contended that if such studies had been made a substantial impact on the environment would be demonstrated requiring an “Environmental Impact Statement” (EIS) as opposed to a “Negative Declaration”. Thus plaintiffs contend the proposed action by defendant is in violation of the provisions of NEPA and should be enjoined.

The trial court, after overruling defendant’s exceptions of no right and no cause of action, concluded, for written reasons assigned, that the requirements of NEPA had not been satisfied. In reaching this conclusion the trial court made the following findings:

“1. Local officials acquiesced in the lift-style bridge proposal in the early meetings because they were told by state and federal officials that funding was not available, except for a lift-style bridge. The record reflects that funding for a high-rise bridge was available.
2. The Department of Transportation and Development operated under the faulty premise that the proposed bridge could not penetrate Main Street in Alexandria whereas the then Alexandria may- or and the commissioner of streets and parks in meetings with defendant and federal and highway officials offered to lower Main Street to have a high-rise bridge with .a touchdown on the north end of Third Street. The record does not reflect that this proposal was ever studied or presented at any public hearing or included in the final Negative Declaration.
3. The consulting engineers, Palmer and Baker of Mobile, Alabama, substituted their judgment rather than considering that of local city officials on the effect of a bridge touchdown point past Main Street. Because of this error in judgment they did not conduct a thorough and competent study of the bridge alternatives available to the Alexandria-Pineville area, and make a fully informed recommendation to the defendant.
4. From the beginning of the project the defendant only considered building a lift-style bridge as shown by CC-1 (1975 environmental assessment) and the public was so informed at the 1975 corridor location hearing (CC-3, page 13) that funds were not available for a high-rise bridge. The State’s original contract with Palmer and Baker was for a lift-style bridge. No high-rise alternative was presented at either public meeting, and only after much public clamor did the defendant consider it as an alternative, and when considered did not give it as much consideration as it did its earlier proposals (see CC-5) as NEPA requires. Such conduct by the defendant is hardly defensible and is evidence to this Court that it did not adequately study the high-rise alternative.
5. Further, the public views at the design public hearing (CC-4) held in (sic) August 7, 1978, were not included in the final Negative Declaration (CC-5) as it was compiled and approved by the Federal Highway Administration on March 29j 1978, several months prior to the design hearing. This further shows that the defendant did not approach the design hearing with an open mind to evaluate the views to be expressed by the people of the Alexandria-Pineville area at the hearing as NEPA contemplates.
6. As proposed, downtown Alexandria-Pineville will be served by two lift-style bridges approximately two thousand feet apart with minimum heights of ninety nine feet and one hundred four feet. Due to the heights’ similarity and the proximity of the bridges, one must reason that bridge openings could affect both bridges at the same time. Projected openings of the proposed bridge will entail at least eight to twenty minutes per opening. The older Fulton structure will require a longer time. Vehicular and pedestrian traffic will back up on both sides of the river resulting in noise and air pollution, traffic congestion on the bridge arteries and cross streets in downtown Alexandria and Pineville. The defendant admits it did not consider these factors important. This Court disagrees. These are significant factors affecting the human environment and must be studied.
7. There was no study made of the lost time of employees commuting to either side of the river. Because of the unique geography of the metropolitan area as previously described, this is an important factor to consider and should have been studied. The only economic study made was road-user costs or the cost of a commuter travelling from a closed bridge to an open bridge. If the defendant’s engineers had studied the geography of the area along with the close proximity of the proposed structure to the present Fulton bridge, reason would require a more thorough origin and destination study than that made by the defendant.
8. The Department of Transportation and Development was presented in early June, 1980, with a Corps of Engineers’ proposal that the proposed pool stage of the Red River will be raised from fifty-eight feet to sixty-four feet. The original Corps projection at the fifty-eight foot pool stage would require the proposed bridge to open for twenty per cent of the barge traffic. During the taking of evidence in this case, this was revised to twenty-seven per cent. At the sixty-four foot pool stage, now under consideration by the Corps, the proposed bridge would be required to open for sixty (sic) four per cent of the barge traffic, a two hundred twenty per cent increase in openings over the first projection. These revisions and proposed actions came after the preparation of the final Negative Declaration. The defendant studied this proposal and decided that, even with the pool stage at sixty-four feet and more bridge openings being required (at the Fulton bridge and proposed structure), the proposed structure would still not have a significant effect on the human environment. Such a conclusion, in light of the considerations hereabove noted on traffic congestion, shows clearly that an inadequate study was made of the effect of this impact factor. A good faith effort was required of the State when confronted with this proposal and this Court rules that the State has failed in its duty.”

Defendant has appealed specifying the following errors:

1. The Court erred in failing to sustain the exceptions of no cause of action and no right of action filed by defendant.
2. The Court erred in misapplying the provisions of the National Environmental Protection Act and, particularly in its findings that a negative declaration as filed by the Department in this matter was not in compliance with the National Environmental Protection Act.
3.The Court erred in finding that the actions of defendant in this matter were unreasonable, arbitrary and capricious and in its determination that the plaintiffs are entitled to injunc-tive relief.

EXCEPTIONS OF NO CAUSE AND NO RIGHT OF ACTION

Defendant contends that the trial court erred in overruling its exceptions of no cause and no right of action. We find that the trial court correctly disposed of this issue ¿nd we are pleased to adopt as our own the trial judge’s well written reasons in connection therewith.

“EXCEPTION OF NO CAUSE OF ACTION
The peremptory exception of no cause of action questions whether the law affords any remedy to the plaintiffs under the allegations of their petition. LSA-C. C.P. 927(4); Guillory v. Nicklas Oil & Gas Co.. 315 So.2d 878 (3rd Cir., 1975). All well-pleaded facts must be accepted as true and any doubts must be resolved in favor of the sufficiency of the pleadings to state a cause of action. Landry v. Landry. 339 So.2d 360 (1st Cir., 1976) (sic) Although petitioners’ allegations are based on federal law, this Court has concurrent jurisdiction with the federal courts in a NEPA dispute, and can adjudicate the issues between the parties since Congress has not given the federal courts exclusive jurisdiction. Testa v. Katt. 330 U.S. 386, 67 S.Ct. 810 [67 S.Ct. 810] (1947). A reading of the petition as a whole alleges sufficient facts that the conduct on the part of the defendant violates Public Law 91-190 of the United States government (NEPA). Therefore, since this Court has subject matter jurisdiction and the petitioners specifically allege a failure by the defendant to follow the NEPA requirements; which this Court has to accept as true for purposes of this exception, the exception of no cause of action be and is hereby overruled.
EXCEPTION OF NO RIGHT OF ACTION
Next, the Court will consider the exception of no right of action which raises the question of whether a remedy afforded by the law can be invoked by these plaintiffs. LSA-C.C.P. 927(5); Bamber Contractors. Inc, v. Henderson Bros., Inc., 345 So.2d 1212 (1st Cir., 1977). Concerned Citizens of Rapides Parish is an organization of 150 members. Mrs. Lorena Pospisil, one of the members, testified in her individual and organizational capacity, along with Terry Trimble and Stephanie Dufour, who testified as members of the organization. Mrs. Pospisil lives on the north side of the Red River, works on the south side, and makes deliveries for her business on both sides; Terry Trimble is an Alexandria city councilman, works for Cutter Laboratories and crosses the river frequently to make calls on three medical institutions on the north side of the river; Stephanie Dufour lives on the north side of the river and has been told by the State that because of the proposed project, the street where she resides will be repaved to within eight feet of her front door.
Article 681 of the Louisiana Code of Civil Procedure requires that for a party to bring an action, he must have a “real and actual interest which he asserts”. The articles in the Code of Civil Procedure are to be liberally construed, and with due regard for the fact that rules of procedure implement the substantive law and are not an end in themselves. LSA-C.C.P. Article 5051.
The issue for this Court to determine is whether these plaintiffs have a ‘real and actual interest' in bringing this suit based upon a NEPA cause of action. Since the Louisiana state courts have not dealt with this area of the law, it is necessary to look to federal jurisprudence to decide what ‘real and actual interest’ a plaintiff is required to have in a NEPA ' suit.
To establish a right of action to challenge an environmental impact statement (or the lack of one), plaintiffs must allege first that the challenged administrative action will cause them injury in fact, economic or otherwise, and secondly that their injury is arguably within the zone of interests protected by the National Environment Policy Act of 1969. See Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361 [31 L.Ed.2d 636] (1972). This ‘injury in fact’ test for a right of action under NEPA is not limited to economic injury, but includes aesthetic and environmental injuries, Edwards v. First Bank of Dundee [D.C.], 393 F.Supp. 680 (1975), as well as the injurious effects on quality of life for city residents due to the effect of the project on vehicular and pedestrian traffic. Hanly v. Mitchell [2 Cir.], 460 F.2d 640 (1972).
Once a right of action under NEPA is invoked by a proper plaintiff, he may argue the public interest in support of his claim that the defendant has failed to comply with its statutory mandate. Also, it is clear that an organization whose members are injured may represent those members in a proceeding for judicial review. Sierra Club v. Morton, supra, [92 S.Ct.] page 1368.
These plaintiffs satisfy the ‘injury in fact’ test of NEPA. Mrs. Pospisil’s living standards will be adversely affected and injured by the proposed project because of time delays getting to and from work as well as for the deliveries for her business. The same is true for Mr. Trimble who travels on the north side of the river as well as Mrs. Dufour whose property will be affected by the proposed route of the bridge. Also, all plaintiffs testified that they had been adversely affected by traffic congestion around the Red River bridges this past winter due to one of the bridges being closed, and that such would also be true if there was another lift-style bridge built between the downtown areas of Alexandria-Pineville. This adverse effect will increase due to the construction of locks and dams and the impending reopening of the Red River for year- round barge navigation. The record clearly reflects that these plaintiffs will be adversely affected by the proposed project and the requisite ‘injury in fact’ required by NEPA is present.
Finding that plaintiffs will suffer the required injury of NEPA, we must decide whether they fall within the zone of interests protected by the Act. Plaintiffs have a sufficient geographical nexus to the site of the challenged project that they will suffer whatever environmental consequences the project may have. This clearly places the plaintiffs within the ambit of NEPA’s protection. Mansfield Area Citizens Group v. U.S. [D.C.], 413 F.Supp. 810 (1976); Conservation Law Foundation Rhode Island v. General Services Administration [D.C.], 427 F.Supp. 1369 (1977).
The Court is cognizant of cases in our state jurisprudence which prevent parties from litigating a cause which might pertain to the whole people in common. Such is not applicable here due to the federal right given to citizens of the United States under NEPA provided the citizens show the necessary real and actual interest in the subject matter in dispute.
Therefore, since this Court finds the potential for these plaintiffs to be injured by the proposed action and that these plaintiffs fall within the ambit of NEPA’s protection, they have a ‘real and actual interest’ in bringing this suit against the defendant, and, therefore, the defendant’s exception of no right of action is overruled.”

DID THE TRIAL COURT ERR IN GRANTING THE PRELIMINARY INJUNCTION SOUGHT BY PLAINTIFFS?

All parties agree that replacement of the “Murray Street” bridge is a major project which requires compliance with NEPA. The disagreement arises with respect to whether or not this project will have a significant effect upon the quality of the human environment. Under the provisions of NEPA if a major federally funded project will have a significant effect upon the quality of the human environment the appropriate agency must prepare and file an Environmental Impact Statement (EIS) in accordance with the provisions of 42 U.S.C. § 4332. The DOTD in consultation with the FHA concluded, after considerable study, that the project in question would not have any reasonably foreseeable significant impact on the human environment and’ thus determined that a “Negative Declaration” would suffice in lieu of a detailed “Environmental Impact Statement”. Plaintiffs contend otherwise and urged in the court below that an injunction should issue preventing further steps until the provisions of NEPA are fully complied with. The trial court held for plaintiffs and defendant has appealed.

At the outset we observe that appellate review of the issuance by the trial court of a preliminary injunction is limited. The issuance of a preliminary injunction addresses itself to the sound discretion of the trial court and is subject to reversal only if it be shown that such discretion has been abused or improvidently exercised. Schwegmann Bros. G. S. Markets v. Louisiana Milk Commission, 290 So.2d 312 (La.1974); Particle Data Laboratories, Inc. v. Coulter Electronics, Inc., 420 F.2d 1174 (7th Cir. 1969).

Although the threshold determination of whether a major project will significantly affect the quality of the human environment is reserved to the agency, such determination is a proper subject for judicial review. In Save Our Ten Acres v. Kreger, 472 F.2d 463 (5 Cir. 1973), the U. S. Court of Appeals, 5th Circuit, considered the proper standard for judicial review of an agency’s threshold determination not to file an EIS and concluded that to best effectuate NEPA the agency determination should be court-measured under a rule of reasonableness, rather than by the narrower standard of arbitrariness or capriciousness.

In Vermont Yankee Nuclear Power Corp. v. Natural Resource Defense Council, Inc., et al., 435 U.S. 516, 55 L.Ed.2d 460, 98 S.Ct. 1197 (1978) the United States Supreme Court, in considering the scope of judicial review of agency actions under NEPA, stated:

"... the role of a court in reviewing the sufficiency of an agency’s consideration of environmental factors is a limited one, limited both by the time at which the decision was made and by the statute mandating review.
‘Neither the statute nor its legislative history contemplates that a court should substitute its judgment for that of the
agency as to the environmental consequences of its actions. Kleppe v. Sierra Club. 427 U.S. [390], at 410 n. 21, 96 S.Ct. [2718], at 2731 n. 21 [49 L.Ed.2d 576].”
“NEPA does set forth significant substantive goals for the Nation, but its mandate to the agencies is essentially procedural. See 42 U.S.C. Sec. 4332. See also Aberdeen & Rockfish R. Co. v. SCRAP, 422 U.S. [289] at 319, 95 S.Ct. [2336], at 2355 [45 L.Ed.2d 191]. It is to insure a fully informed and well-considered decision, not necessarily a decision the judges of the Court of Appeals or of this Court would have reached had they been members of the decisionmaking unit of the agency. Administrative decisions should be set aside in this context, as in every other, only for substantial procedural or substantive reasons as mandated by statute, Consolo v. FMC, 388 U.S. 607, 86 S.Ct. 1018, 1026, 16 L.Ed.2d 131 (1966), not simply because the court is unhappy with the result reached... ”

A perusal of the trial judge’s written reasons reflects that he concluded that defendant failed to comply with NEPA based upon two salient factors: (1) the alleged inadequate study by the DOTD of the effect of projected bridge openings on the quality of the environment; and, (2) the alleged inadequate study and consideration by the DOTD of high-rise bridge alternatives.

Our review of the record in light of the settled principles set forth above prompts us to conclude that the trial court manifestly erred in its finding that the DOTD and the FHA failed to comply with the provisions of the National Environmental Policy Act.

The construction project under scrutiny is not one which will greatly change the surroundings in the area. It is merely a replacement bridge and is designed to substitute a new and modern facility for an antiquated and structurally unsound bridge. The latter facility will be torn down following completion of the new bridge which is to be located approximately 400 feet northwest from the existing bridge.

The determination of the trial court that the projected openings of the new bridge and the Fulton Street bridge will be of such frequency as to cause vehicular and pedestrian traffic to back up on both sides of the river resulting in noise and air pollution and traffic congestion on the bridge arteries and cross streets in downtown Alexandria and Pineville is not borne out in the record. Rather, this determination represents little more than the trial judge’s own conclusion as to the effect of future bridge openings.

A letter from the United States Coast Guard dated June 4, 1979, filed in evidence by plaintiffs as Exhibit CC-13, reflects the following with regard to projected openings:

“My staff has analyzed the New Orleans District Corps of Engineers’ projection of tow usage on the Red River for the years 1985 through 2035 at ten year intervals. Our analysis revealed that land traffic crossing the proposed bridge would not experience unreasonable delays as a result of operating the draw-span for tows. Based on the Corps projection that 20 percent of the tows would require opening of the draw, our analysis revealed that 20 openings a month or .6 per day would be required in 1985; 89 a month or 2.96 a day in 2005; 234 a month or 7.8 a day in 2035. We also calculated that the total time for operating the draw and the time an average six-barge tow could transit the bridge would be approximately 8 to 20 minutes.”

These calculations admittedly do not take into consideration the proposal of the Corps of Engineers to raise the pool stage of the Red River from 58' to 64' and the opening of the river to Shreveport, Louisiana, and possibly Daingerfield, Texas. This possibility was not considered by the DOTD in its initial studies because the Department did not become aware of the Corps proposal until early June of 1980. However, after this information became known, the DOTD and the FHA studied the possible effect of the proposed change and came to the conclusion that such change would not be of such significance as to change their opinion concerning going forward with the semi-high level, vertical lift bridge.

These later studies revealed that at pool stage 64' the proposed bridge would be required to open for 64% of the barge traffic. The following analysis by the Corps of Engineers prepared in May of 1980 reflects the anticipated tows monthly with River Reach Up to Shreveport, Louisiana, and with River Reach Up to Shreveport, Louisiana, and Daingerfield, Texas:

Considering the above analysis it is seen that in the year 2005 with River Reach Up to Shreveport, Louisiana, there would be approximately five openings per day and with River Reach Up to Daingerfield, Texas there would be approximately nine openings per day. Defendant’s experts all testified that the number of openings anticipated as a result of such analysis is extremely low. There testimony in this regard is corroborated by reference to a “Summary of Navigation Openings-Movable Bridges— 1979” which was introduced in evidence as D-33.

We observe that although the responsible. agencies did give consideration to this proposed change in the pool stage of the Red River, the record reflects that such proposal is only in its planning stages. There is no certainty that the pool stage of the Red River will be raised or that the river will be opened for barge traffic to Shreveport, Louisiana or Daingerfield, Texas. In this latter connection we note that the “Tow Analysis” dated May 1980 submitted by the Corps of Engineers and introduced in evidence as D-27 contains the following pertinent comment:

“Evaluation of the number of tows passing the proposed US 165 bridge in the years 1988-2037 is presented in two columns. One with the navigation project in place to Shreveport, Louisiana, and one with the navigation project in place through Shreveport to Daingerfield, Texas. Our past economic analysis indicates that navigation to Dainererfield is not economically justified, but we are reevaluating this reach at this time.” (Emphasis ours)

In our view the trial court erred in its heavy reliance on this possibility in concluding that the environmental studies of the DOTD were inadequate. As stated by the U. S. Supreme Court in ICC v. Jersey City, 322 U.S. 503, 514, 64 S.Ct. 1129, 1134, 88 L.Ed. 1420 (1944):

“Administrative consideration of evidence ... always creates a gap between the time the record is closed and the time the administrative decision is promulgated (and, we might add, the time the decision is judicially reviewed).... If upon the coming down of the order litigants might demand rehearings as a matter of law because some new circumstance has arisen, some new trend has been observed, or some new fact discovered, there would be little hope that the administrative process could ever be consummated in an order that would not be subject to reopening.”

In Vt. Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., et al., supra, the court stated:

“We have also made it clear that the role of a court in reviewing the sufficiency of an agency’s consideration of environmental factors is a limited one, limited both by the time at which the decision was made and by the statute mandating review.”

Suffice it to say that the record reflects that the DOTD in consultation with the FHA.took a “hard look” (State of California v. Bergland, D.C., 483 F.Supp. 465) at the consequences related to projected bridge openings and reached the conclusion that such openings would have no significant impact on air pollution, traffic congestion and other environmental considerations. It is true that representatives of both agencies readily admitted that no specific study was made of the loss to employers and employees in time and money which might be occasioned by projected bridge openings, however, we attach no particular significance to this alleged inadequacy. As stated in County of Suffolk v. Secretary of the Interior, 562 F.2d 1368, (U. S. Court of Appeals 2nd Cir., 1977):

“In making such a determination a court is governed by the ‘rule of reason’, under which an EIS need not be exhaustive to the point of discussing all possible details bearing on the proposed action, but will be upheld as adequate if it has been compiled in good faith and set forth sufficient information to enable the decision-maker to consider fully the environmental factors involved and to make a reasoned decision after balancing the risks of harm to the environment against the benefits to be derived from the proposed action as well as to make a reasoned choice between alternatives.”

Nor can we agree with the learned trial judge’s finding that the studies made by DOTD of bridge design alternatives was inadequate.

The trial judge in his written reasons alludes to the fact that from the beginning of the project the defendant only considered building a lift-style bridge. The record confirms this fact to be true however, in sum, the testimony of the bridge design engineers was to the effect that in their judgment this particular type facility was best suited to the environment and would better serve the traffic needs in the area. In this connection Mr. David Huval, the bridge design engineer for the DOTD, testified as follows:

“I think, Mr. Roy, what you have to realize and I think the point that I can’t sell to you and I can’t seem to sell to the people of Alexandria at the time I presented this on four occasions, was the fact that Murray Street as it exists now is a land service facility.... It serves the basic downtown areas of Alexandria and Pineville. The downtown areas. Land services. It has no other real and I think the 0 & D studies that we made shows this, that the traffic was primarily from the railroad across into downtown Pineville and from Pineville, the railroad side and cross. This was represented, I don’t recall the exact facts, but 80% of the whole traffic on the bridge was basically the downtown areas of both cities.”

In spite of the original conclusion that a semi-high-lift style bridge would best serve the needs of the people and that such design would have no substantial impact on the quality of the environment, the DOTD in response to the requests of various citizens, who at public hearings expressed the need for a high-rise bridge, engaged Palmer and Baker to study and consider the feasibility of a high-rise bridge at various locations. It is clear from the record, particularly the testimony of Mr. David Huval, the bridge design engineer for the DOTD, and Messrs. Hammill and Roberson, consulting engineers for Palmer and Baker, that several high-rise bridge alternatives were considered. In studying these various high-rise alternatives engineering consideration was given to the effect that the touchdown point of the bridge would have upon the closure of streets, existing traffic patterns, aesthetic and other environmental considerations. With these considerations in mind the studies were conducted with the constraint that the touchdown point should not extend beyond Main Street.

The DOTD and Palmer and Baker after considerable study concluded that a high-rise bridge with a touchdown at Jackson Street (scheme 1) was unacceptable because of its failure to comply with proper engineering standards. The responsible agencies did not consider the feasibility of a high-rise bridge with a touchdown point beyond Main Street because, in their judgment, the required touchdown point would penetrate too far into the city causing closure of streets, disruption of existing traffic patterns etc. Able counsel for plaintiff sought by extensive cross-examination of the defendant’s experts, to demonstrate that it would be possible to construct a high-rise bridge in the area. All of the experts agreed that if the touchdown point were moved away from the river beyond Main Street that construction of a high-rise bridge would be possible. However, they all agreed that such a high-rise facility would penetrate the city well beyond Main Street. The trial judge concluded that because no alternatives were studied with a touchdown point beyond Main Street a thorough and complete study of bridge alternatives was not made and thus the DOTD violated the provisions of NEPA. We cannot agree.

The fact that agencies charged with the responsibility of complying with NEPA do not consider every possible alternative, whether practical or not, is not a basis for a finding of non-compliance. As stated by the court in Vt. Yankee Nuclear Power v. Natural Resources Defense Council, Inc., et al., supra:

“Common sense also teaches us that the 'detailed statement of alternatives’ cannot be found wanting simply because the agency failed to include every alternative device and thought conceivable by the mind of man. Time and resources are simply too limited to hold that an impact statement fails because the agency failed to ferret out every possible alternative, regardless of how uncommon or unknown that alternative may have been at the time the project was approved.”

In the instant case for the reasons previously stated the agencies involved did not consider as a viable alternative, a high-rise bridge which would penetrate the City of Alexandria beyond Main Street. We are not prepared to substitute our judgment in this regard for that of the administrative agency. It is well settled that considerable latitude must be allowed to public agencies to perform the functions delegated to them under the law and that the courts should not intervene unless such conduct is clearly unreasonable and arbitrary. Acadian Officer Center, Inc. v. State Department of Highways, 307 So.2d 137 (La.App.1st Cir. 1974, writ refused).

For the above and foregoing reasons the judgment of the trial court granting a preliminary injunction enjoining and restraining the Honorable Paul Hardy, Secretary of the Louisiana Department of Transportation and Development, its agents, servants and all persons acting in concert with him, from taking any further steps in connection with Project No. 700-08-69, is reversed and set aside and plaintiffs’ demand for a preliminary injunction is denied. This matter is remanded to the trial court for further proceedings consistent with the views expressed herein and in accordance with law. Costs of all proceedings in this court are taxed to plaintiffs-appellees. All other costs are to await a final determination of this matter.

REVERSED AND REMANDED.

LABORDE, J., dissents and assigns rea- - sons.

LABORDE, Judge,

dissenting.

The majority opinion condones the DOTD’s violation of both the spirit and the letter of the National Environmental Policy Act (NEPA). For that reason, more fully explained as follows, I respectfully dissent.

NEPA is dichotomized, one branch setting forth its broad substantive policies and objectives; the other setting forth its important procedural requirements. For a more graphic view of this dichotomy, I quote from Scherr v. Volpe, 466 F.2d 1027 (7th Cir. 1972) wherein the court stated:

“The broad substantive policies and objectives of NEPA are contained in § 101 thereof. There the Congress expressed its basic goal that the federal government should strive for the protection of environmental values. Environmental protection was not established as an exclusive goal, rather the Congress restructured priorities in such a way that the ecological consequences of a federal action must now be given consideration. Thus § 101(b) of NEPA provides that “it is the continuing responsibility of the Federal Government to use all practical means, consistent with other essential considerations of national policy,” to “assure for all Americans safe, healthful, productive, and esthetically and culturally pleasing surroundings,” to attain “an environment without degradation”, to “preserve important historic, cultural, and natural aspects of our national heritage,” and to insure that “each person should enjoy a healthful environment.”
The method by which the national goals would be achieved was left undefined in Section 101. However, Congress did not simply provide us with a promise incapable of realization. Important and much less flexible procedural requirements designed to insure that federal officials meet the sweeping Congressional commitment to the environment are contained in Section 102 of NEPA. The pertinent portions of Section 102 read as follows:
“The Congress authorizes and directs that, to the fullest extent possible: ... (2) all agencies of the Federal Government shall—
(C) include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible federal official on—
(i) the environmental impact of the proposed action,
(ii) any adverse environmental effects which cannot be avoided should the proposal be implemented,
(iii) alternatives to the proposed action,
(iv) the relationship between local short-term uses of man’s environment and the maintenance and enhancement of long-term productivity, and
(v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.
Prior to making any detailed statement, the responsible Federal official shall consult with and obtain the comments of any Federal agency which has jurisdiction by law or special expertise with respect to any environmental impact involved. Copies of such statement and the comments and views of the appropriate Federal, State, and local agencies, which are authorized to develop and enforce environmental standards, shall be made available to the President, the Council on Environmental Quality and to the public as provided by section 552 of Title 5, [United States Code] and shall accompany the proposal through the existing agency review processes;” [emphasis supplied].

Through the enactment of these procedural requirements the Congress has not only permitted but has compelled the responsible federal agencies to take environmental values into account. See Calvert Cliffs’ Coord. Com. v. United States Atomic Energy Com’n., 449 F.2d 1109, 1112 (D.C.Cir. 1971). Not only must the environmental consequences of a particular action be considered, but Section 102 requires also that these consequences be weighed and balanced against other considerations, such as financial or social, which may be involved.

The environmental impact statement required by Section 102 is designed to insure that this balancing analysis is given its fullest effect. Pro forma compliance with the substantive guidelines of Section 101 simply will not suffice. Section 102 of NEPA provides that its procedures be implemented and carried out “to the fullest extent possible.” Thus the somewhat flexible and general guidelines articulated in Section 101 are not to be found in its companion Section 102. Absent a conflict of statutory authority,1 the responsible federal officials must give full consideration to the environmental consequences of a major federal action significantly affecting the environment. The procedural steps outlined in Section 102 apply notwithstanding considerations of administrative difficulty, delay or economic cost. Calvert Cliffs’ Coord. Com. v. United States Atomic Energy Com’n, 449 F.2d 1109, 1115 (D.C.Cir. 1971)”

Thus the law is that the requirements of § 102(2)(C) of NEPA apply to a proposed action if that action significantly affects the quality of the human environment. The narrow issue on appeal then is whether the proposed construction of a draw bridge connecting downtown Alexandria to downtown Pineville is a project which significantly affects the quality of the human environment and hence one where an Environmental Impact Study (EIS) is, by NEPA’s express terms, mandated.

The criteria for determining whether a major project “significantly affects the environment” include, among others, highly controversial projects and disruption of an established community or planned development. In the trial court’s findings of fact, which I strongly feel are correct, the court stated that:

“Any lift-style bridge built over the' Red River in Rapides Parish will create a complexity of environmental problems because of the unique geography of the parish. Rapides Parish is in the middle of the state with many major state and federal highways intersecting here. The river divides the parish in two parts, a north and south side. On the north side is a Veterans Administration Hospital, Huey P. Long Memorial Hospital, Central Louisiana State Hospital, Pinecrest State School, the airport for the Central Louisiana area, and many of the major industries of the parish, all of which draw their workforce from both sides of the river. On the south side is Alexandria with major state and federal highway interchanges, two major medical institutions, the only ambulance service for the parish, and the Louisiana State Police, Troop E. Also geographically significant on the Alexandria side is the short city blocks in downtown Alexandria with the three streets closest to the river — Main, Third and Fourth — running parallel to the river and all intersecting Jackson Street and Fulton Street.
Further, the Red River is scheduled to be opened for greater river navigation up to Shreveport, Louisiana and possibly Daingerfield, Texas. The port for the Alexandria-Pineville area is to be located in an area north and upstream of the present Fulton bridge and the proposed Jackson Street bridge. The present pool stage planned for this area is fifty-eight feet, but the U. S. Corps of Engineers is presently conducting public meetings to raise this elevation to sixty-four feet (CC-18). The fifty-eight foot pool stage would require the proposed bridge to open for twenty seven per cent of the barge traffic while the sixty-four foot pool stage would require openings for sixty-four per cent of the barge traffic.
At present there is one high-rise bridge located outside the city limits of Alexandria and Pineville (O. K. Allen) and two low-level bridges approximately two thousand feet apart connecting the two downtown areas. One of the low-level bridges is the Alexander Fulton bridge, built in 1964, which connects Fulton Street in Alexandria to the Pineville Expressway in Pineville. The second bridge is that sought to be replaced, the Murray Street bridge, built in 1902 and in dangerous condition, which connects Murray Street in Alexandria with Main Street in Pineville.”

Based upon the law and the evidence reviewed concerning whether the NEPA requirements were followed, the District Court also made these additional findings of fact:

“As proposed, downtown Alexandria-Pineville will be served by two lift-style bridges approximately two thousand feet apart with minimum heights of ninety nine feet and one hundred four feet. Due to the heights’ similarity and the proximity of the bridges, one must reason that bridge openings could affect both bridges at the same time. Projected openings of the proposed bridge will entail at least eight to twenty minutes per opening. The older Fulton structure will require a longer time. Vehicular and pedestrian traffic will back up on both sides of the river resulting in nois,e and air pollution, traffic congestion on the bridge arteries and cross streets in downtown Alexandria and Pineville. The defendant admits it did not consider these factors important. This Court disagrees. These are significant factors affecting the human environment and must be studied.
There was no study made of the lost time of employees commuting to either side of the river. Because of the unique geography of the metropolitan area as previously described, this is an important factor to consider and should have been studied. The only economic study made was road-user costs or the cost of a commuter travelling from a closed bridge to an open bridge. If the defendant’s engineers had studied the geography of the area along with the close proximity of the proposed structure to the present Fulton bridge, reason would require a more thorough origin and destination study than that made by the defendant.
The Department of Transportation and Development was presented in early June, 1980, with a Corps of Engineers’ proposal that the proposed pool stage of the Red River will be raised from fifty-eight feet to sixty-four feet. The original Corps projection at the fifty-eight foot pool stage would require the proposed bridge to open for twenty per cent of the barge traffic. During the taking of evidence in this case, this was revised to twenty-seven per cent. At the sixty-four foot pool stage, now under consideration by the Corps, the proposed bridge would be required to open for sixty four per cent of the barge traffic, a two hundred twenty per cent increase in openings over the first projection. These revisions and proposed actions came after the preparation of the final Negative Declaration. The defendant studied this proposal and decided that, even with the pool stage at sixty-four feet and more bridge openings being required (at the Fulton bridge and proposed structure), the proposed structure would still not have a significant effect on the human environment. Such a conclusion, in light of the considerations hereinabove noted on traffic congestion, shows clearly that an inadequate study was made of the effect of this impact factor. A good faith effort was required of the State when confronted with this proposal and this Court rules that the State has failed in its duty.”

The Court then concluded:

“For the reasons outlined above, this Court finds that the reliance by the defendant on its Negative Declaration is unreasonable and not in compliance with the spirit and letter of the National Environmental Protection Act. The citizens of Alexandria and Pineville have a right to an in-depth study of this project because they, unlike the planners, will have to live with the results for the next fifty to one hundred years.”

I am satisfied on this record and hence agree with the trial judge that the lift-style bridge project is one that has a significant impact on the quality of the human environment in that area. This is not to say that the environmental considerations outweigh the other considerations which attend the planning and construction of a bridge connecting the two downtowns here discussed. I decide only, and the record supports, that the project will have a significant impact on the environment and that the consequences to the environment should, as mandated by NEPA, receive the proper consideration by the officials involved.

Having concluded that an environmental impact statement is mandated under the facts and circumstances here presented, I think it relevant to discuss for a moment the harms caused by the DOTD’s failure to file the EIS in this instance.

For one, NEPA requires that part of its detailed statement be devoted to “alternatives to the proposed action. ...” 42 U.S.C. 4332(C). In addition, agencies are commanded to “[sjtudy, develop, and describe appropriate alternatives to recommended courses of action in any proposal which involves unresolved conflicts concerning alternative uses of available resources.” 42 U.S.C. 4332(E).

This duty to discuss alternatives has been described as the “lynch pin” of the entire impact statement. Natural Resources Defense Council v. Callaway (2d Cir. 1975) 524 F.2d 79, 92, quoting Monroe County Conservation Society, Inc. v. Volpe (2d Cir. 1972) 472 F.2d 693, 697-98. This duty is even more important where as here, the proposed action forecloses future consideration of an otherwise reasonable action or alternative i. e., a high rise bridge. At a minimum, the environmental impact of the foreclosed action or alternative must be assessed. Simply put, the DOTD should not be allowed to evade its duty.

Other harms were caused by the DOTD’s failure to file an EIS. For example, since the proposed action was not disclosed in the EIS, the public was denied its procedurally provided opportunity to consider and respond to the lift-style bridge proposal. This denial offends the NEPA regulations which contemplate a reasonable opportunity for public and official comment. The whole purpose of an EIS is to disclose the issues. Warm Springs Dam Task Force v. Gribble (9th Cir. 1977) 565 F.2d 549, 554. It is especially offensive where as here the proposed project is highly controversial and of great impact.

On this same subject the record shows and the trial court found as a matter of fact the following:

“Local officials acquiesced in the lift-style bridge proposal in the early meetings because they were told by state and federal officials that funding was not available except for a lift-style bridge. The record reflects that funding for a high-rise bridge was available.
The Department of Transportation and Development operated under the faulty premise that the proposed bridge could not penetrate Main Street in Alexandria whereas the then Alexandria mayor and the commissioner of streets and parks in meetings with defendant and federal and highway officials offered to lower Main Street to have a high-rise bridge with a touchdown on the north end of Third Street. The record does not reflect that this proposal was ever studied or presented at any public hearing or included in the final Negative Declaration.
The consulting engineers, Palmer and Baker of Mobile, Alabama, substituted their judgment rather than considering that of local city officials on the effect of a bridge touchdown point past Main Street. Because of this error in judgment they did not conduct a thorough and competent study of the bridge alternatives available to the Alexandria-Pine-ville area, and make a fully informed recommendation to the defendant.
From the beginning of the project the defendant only considered building a lift-style bridge as shown by CC-1 (1975 environmental assessment) and the public was so informed at the 1975 corridor location hearing (CC-3, page 13) that funds were not available for a high-rise bridge. The State’s original contract with Palmer and Baker was for a lift-style bridge. No high-rise alternative was presented at either public meeting, and only after much public clamor did the defendant consider it as an alternative, and when considered did not give it as much consideration as it did its earlier proposals (see CC-5) as NEPA requires. Such conduct by the defendant is hardly defensible and is evidence to this Court that it did not adequately study the high-rise alternative.
Further, the public views at the design public hearing (CC-4) held in August, 7, 1978, were not included in the final Negative Declaration (CC-5) as it was compiled and approved by the Federal Highway Administration on March 29, 1978, several months prior to the design hearing. This further shows that the defendant did not approach the design hearing with an open mind to evaluate the views to be expressed by the people of the Alexandria-Pineville area at the hearing as NEPA contemplates.”

The result is inescapable — by not testing its proposal via the channel of public comment and by not discharging its duties in good faith, the DOTD effectively undercut the goals of environmental impact statements; informed decisionmaking, and full disclosure.

In conclusion, Section 102 of NEPA mandates a particular sort of careful and informed decisionmaking process. This is to fulfill NEPA’s design to insure that the government closely examine the environmental effect of its program and disclose to the public, the factual and analytical basis of its decisions. If the decision was reached procedurally without individualized consideration and balancing of environmental factors — conducted in good faith — it is our duty, role, and responsibility to reverse. In this case, the DOTD failed to meet these procedural mandates. The DOTD is a product of the law — it has no legitimate power save that given to it by the law. When it fails to comply with the law, it is acting ultra vires — beyond its power. When an agency acts beyond its power, then the courts must perform their duty, which is to require the agency to comply with the law. The trial court discharged its duty by enjoining the DOTD from proceeding with the lift-style bridge until it has complied with the NEPA mandates. I would do likewise.

For the above and foregoing reasons, I respectfully dissent.

      . According to the record the unincorporated association known as “Concerned Citizens of Rapides Parish” was later incorporated as “Concerned Citizens of CENLA Inc. The corporation has not been made a party to this proceeding.

      . The existing “Murray Street” bridge was constructed in the year 1902. According to the record this facility is a narrow two-lane bridge with heavy daily traffic. The bridge, and its present day condition, is considered hazardous to the traveling public.

      . Plaintiffs allege and the trial court found that local officials acquiesced in the lift-style bridge proposal in these early meetings because they were informed by state and federal officials that funding was not available for a high-rise facility.

      . All parties agree that the replacement of the Murray Street bridge is a “major action” which requires compliance with the National Environmental Policy Act.

      . A “Corridor Location Hearing” is a hearing held before the route location is approved.

      . Scheme 1 called for two twenty-four degree curves on an eight percent grade, which would require a ten per cent super elevation, a condition considered by the bridge design engineers to be totally unacceptable.

      . The proposed bridge will be a 300-foot vertical-life bridge providing a minimum of 240 feet of horizontal clearance between faces of piers. The bridge is to be 104 feet in height and provides, considering a normal pool stage of 58' for the Red River, vertical clearance of 46 feet.

      . 42 U.S.C. § 4332 provides in pertinent part as follows:
      “The Congress authorizes and directs that, to the fullest extent possible: (1) the policies, regulations, and public laws of the United States shall be interpreted and administered in accordance with the policies set forth in this chapter, and (2) all agencies of the Federal Government shall—
      ******
      (C) include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on—
      (i) the environmental impact of the proposed action,
      (ii) any adverse environmental effects which cannot be avoided should the proposal be implemented,
      (iii) alternatives to the proposed action,
      (iv) the relationship between local short-term uses of man’s environment and the maintenance and enhancement of long-term productivity, and
      (v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.
      Prior to making any detailed statement, the responsible Federal official shall consult with and obtain the comments of any Federal agency which has jurisdiction by law or special expertise with respect to any environmental impact involved. Copies of such statement and the comments and views of the appropriate Federal, State, and local agencies, which are authorized to develop and enforce environmental standards, shall be made available to the President, the Council on Environmental Quality and to the public as provided by section 552 of Title 5, and shall accompany the proposal through the existing agency review processes;”

      . The evidence at trial reflects that a pool stage of 58' would require the proposed bridge to open for 27% of the barge traffic,


source: Caselaw Access Project

author: GARRISON, Judge.

license: Public Domain

text:
    DYNA INTERNATIONAL CORPORATION v. Michael MASHBURN.
    No. 11594.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 7, 1981.

      Kepper, Moulin & Kepper, Stewart J. Kepper, New Orleans, for plaintiff-appellee and third party defendant Dyna Intern. Corp. and Jude A. Sutton.
    Guste, Barnett & Shushan, J. Harrison Henderson, III, New Orleans, for defendant-plaintiff in reconvention third party plaintiff-appellant Michael Mashburn.
    Before BOUTALL, GARRISON and KLIEBERT, JJ.
   GARRISON, Judge.

This is an appeal from a judgment of the First City Court granting plaintiff’s demand for $1,952.00 plus 7% interest from November 29,1977 until paid, together with 25% attorney’s fees and costs. The case arose out of a suit on an open account brought by Dyna International to collect payment on the following equipment sold to the defendant:

6 #2 Hot Food Wells .$660.00
4 Paper Cup Dispensers . 192.00
1 Dyna - Metric Vent Hood .. . . . . 1,100,00
$1,95T.00

Defendant purchased the equipment in order to outfit a restaurant known as “Frenchy’s” located at 3230 Magazine Street in New Orleans. The terms of the sale specified that defendant should present a sight draft upon delivery. Through a clerical error on plaintiff’s part, the merchandise was delivered on open account. The delivery date and invoice date of the food wells and paper cup dispensers is November 10,1977. The vent hood was placed on “back order” and was delivered and invoiced to the defendant on November 29, 1977. On April 24, 1978, plaintiff sent a demand letter to the defendant. Defendant did not make any payments on any of the merchandise. On June 15, 1978, plaintiff filed suit. After full trial on the merits, the district court rendered judgment as stated above, and from that judgment, which we amend and affirm, defendant appealed.

On appeal, defendant argues that the trial court erred in granting judgment against him where there existed an error as to the thing which was the subject of the sale and where no privity of contract existed between plaintiff and defendant. Additionally, defendant argues that the trial court erred in awarding interest from the delivery date and in awarding attorney’s fees.

I ERROR AS TO THE THING

Defendant, by way of a reconven-tional demand sued for $2,000.00 in damages as a result of a loss allegedly incurred by him as a result of the vent hood. He argued that the vent hood failed to conform to the standards required by the City of New Orleans and for that reason he was denied a permit. The permit denial resulted in a later opening date and loss of profits. Additionally, he incurred the costs of modifying the hood in order that it would conform to the requisite standards.

We find, as did the court, that no error as to the thing exists. Mr. Mashburn was presented with a choice of two hoods, an inexpensive hood which did not conform to local standards and an expensive hood which did conform to local standards. He chose the inexpensive vent hood and got the thing that he bargained for. Hence, we cannot conclude that the trial court was manifestly erroneous in this factual determination. Arceneaux v. Domingue, 365 So.2d 1330 (1978). We note that Mr. Mash-burn raised no defenses to the sale of the hot food wells or paper cup dispensers.

II LACK OF PRIVITY

Defendant argues that there exists no privity between himself and Dyna International, that he dealt solely with Slidell Equipment Company, and that he did not pay Dyna International because he believed the money was owed to Slidell Equipment Co. We note that Slidell Equipment Co. acts only as an order-taker for Dyna. Sli-dell Equipment Co. did not have in its purchased inventory a stock of Dyna vent hoods. If Mr. Mashburn was confused as to the identity of the seller, that confusion should have been clarified upon the first delivery on November 11, 1977, when he received Dyna’s invoice and written sales contract. We note that no payments were made to Slidell Equipment Co.

III LEGAL INTEREST

Dyna International’s sales agreement provided for payment within 30 days and conventional interest at the rate of IV2 per month on past due accounts. Dyna neither made demand for nor sued for that amount. Accordingly, we conclude that the trial court erred in awarding legal interest from the delivery date of the vent instead of the date of judicial demand. C.C. Art. 2924 and 1940. We note that Act No. 402, Regular Session of 1980 raised the rate of interest to 10% per annum, effective September 12, 1980.

IV ATTORNEY’S FEE

R.S. 9:2781 provides as follows:

“When any person fails to pay an open account within thirty days after receipt of written demand therefor correctly setting forth the amount owed and a copy of the invoices in support thereof, that person shall be liable for reasonable attorney fees for the prosecution and collection of such claim when judgment on the claim is rendered in favor of the claimant...”

In the instant appeal, a demand letter dated April 24, 1978 is contained in the record. The letter correctly states the amount owed and invoices were enclosed therewith. The record also contains a registered mail return receipt bearing Mr. Mashburn’s signature. As defendants have complied with the statute, they are entitled to an award of attorneys’ fees. The trial judge awarded 25% attorneys’ fees. We find this to be a “reasonable attorney fee” within the context of the statute and cannot conclude that the trial judge abused his discretion in awarding this amount.

For the reasons discussed, the judgment of the district court is amended as follows, and as amended is affirmed:

IT IS ORDERED, ADJUDGED AND DECREED that:

1. On the principal demand, there be judgment in favor of Dyna International Corp. and against Michael Mashburn in the sum of $1,952.00, plus judicial interest thereon at the rate of 7% per annum from April 24, 1978 through September 11, 1980 and at the rate of 10% per an-num from September 12, 1980, until paid, together with 25% attorney’s fee on the amount of principal and interest due, and all costs of these proceedings; and
2. On the reconventional and third party demands, that there be judgment in favor of Dyna International Corp. and Jude A. Sutton, and against Michael Mashburn, dismissing both such demands, with costs to be paid by Mr. Mashburn.

AMENDED AND, AS AMENDED, AFFIRMED.


author: KLIEBERT, Judge.

text:
    In re L. Dowell ARNETTE Applying For the Adoption of Laura Elizabeth Valentine.
    No. 11796.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 7, 1981.
    O’Keefe, O’Keefe & Berrigan, W. Paul Weidig, Metairie, for plaintiff-appellant.
    Anthony J. Russo, New Orleans, for defendant-appellee.
    Before KLIEBERT, STOULIG and BAILES, JJ.
   KLIEBERT, Judge.

L. Dowell Amette seeks to adopt Laura Elizabeth Valentine, the child of his wife by her first marriage to Harold Gray Valentine, Jr. The child’s father opposed the adoption.

The facts material hereto are as follows: The Valentines were divorced on June 5, 1975, with Mrs. Valentine obtaining custody of Laura. In September, 1977, Mr. Valentine was ordered to pay $50.00 per month for the support of the minor child. Mr. Valentine fell behind on his payments and occasionally made payments on the arrear-ages. On April 17, 1978, Mrs. Valentine married petitioner. On March 3, 1980, plaintiff-appellant petitioned for adoption of Laura Elizabeth Valentine, alleging that the natural father’s consent was not required under L.R.S. 9:422.1 because Mr. Valentine had not complied with a court order of support for a period of one year. The trial court denied the adoption. The applicant appealed.

The appellant’s specifications of error are grounded on the following: In April, 1979, Mr. Valentine made an alimony payment of $500.00. In February of 1980, a check in the amount of $100.00, with no payee named therein, was mailed by Mr. Valentine to his daughter. His ex-wife returned the check to him. On February 28, 1980, Mr. Valentine mailed another check to his former wife in the amount of $200.00.

Under the ruling of State of Louisiana in ■ the Interest of Haynes, 368 So.2d 783 (La.App. 2nd Cir. 1979), the appellant’s argument (relative to the application of an alimony payment to the oldest alimony due) may appear to have merit; however, the argument overlooks the payment of $200.00 made by check dated February 29,1980, but mailed on February 28, 1980. On advice of her counsel, appellant did not process this check for payment. Applying the ruling of the Haynes case, supra, the $200.00 payment would cover the alimony payments due through June, 1980. Since the petition for adoption was not filed until March 3, 1980, we agree with the trial judge’s conclusion that the prerequisite for the application of R.S. 9:422.1 has not been met.

As was observed by the trial court, those laws terminating parental rights must be strictly construed. The natural father’s effort to meet his support obligation should not be prevented by the simple expediency of the mother’s failing to fill out the name of the payee in the check or by failing to process a check for payment. It is evident Mr. Valentine had made strong efforts to continue his relationship with his daughter. Although he did not maintain all of his visitation arrangements or make all of his promised gifts, even though he was in California and she was in Louisiana, he did visit with her and he did send her gifts and did make support payments, albeit late. It might also be noted that he made several attempts to visit which were unsuccessful because of prior commitments of the child or the mother.

We find no error in the trial court’s ruling. Therefore, the judgment of the trial court is affirmed. Costs of this appeal to be paid by appellant.

AFFIRMED.


author: HUGHES, Judge.

text:
    Madeleine Marie Burke SUPER v. William C. SUPER, M.D.
    No. 11725.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 7, 1981.

      Reed & Reed, Floyd J. Reed, New Orleans, for plaintiff-appellee.
    Parlongue & Riegel, Philip R. Riegel, Jr., New Orleans, for defendant-appellant.
    Before GULOTTA, BOUTALL and HUGHES, JJ.
   HUGHES, Judge.

Defendant, Dr. William C. Super, appeals the judgment of the trial court which refused his request for reduction in alimony payments and ordered him to continue paying $1500.00 a month to plaintiff-appellee. The primary issue is whether the trial court erred in continuing alimony payments of $1500.00 a month to Madeleine Marie Burke, putative wife of defendant-appellant, when the testimony and evidence showed that the appellee owned two pieces of immovable property and that she had no disabilities preventing her from earning a sufficient income to support herself.

Madeleine Super filed suit for separation against Dr. William C. Super in the 24th Judicial District Court for the Parish of Jefferson on August 1, 1977. Abandonment and cruel treatment were the alleged basis for the cause of action which also requested an award of alimony pendente lite. On November 18, 1977 judgment was rendered in favor of plaintiff-appellee ordering defendant-appellant to pay his wife $1500.00 per month alimony.

Following the judgment, Mrs. Super twice filed rules for contempt and to make past due alimony executory on December 9, 1977 and on March 26, 1979. On April 5, 1979 Dr. Super filed a suit for a reduction of alimony. Judgment on all three rules was rendered April 18, 1979 with Judge Gaudin denying the request for an alimony reduction and ordering that $1525.00 in past due alimony be made executory in favor of Madeleine Super and further granting her $250.00 in attorney’s fees.

On September 26, 1979, Dr. Super filed an exception of no cause or right of action to the suit for separation. The exception was based on the husband’s success in obtaining an annulment of his marriage to Madeleine Super during the pendency of the separation suit. The judgment declaring the marriage to be a nullity was appealed and affirmed by both the 4th Circuit Court of Appeal and the Louisiana Supreme Court. See Super v. Burke, 367 So.2d 93 (La.App. 4th Cir. 1979), affirmed 374 So.2d 1250 (La.S.Ct. 1979).

Plaintiff next amended her petition contending that since she was now entitled to all the civil effects of marriage in her favor, including the continuing right to alimony for her support maintenance. After taking evidence and testimony on the changed status of the parties, Judge Gaudin overruled the exception of no cause of action and ordered that past due alimony in the amount of $7225.00 be made executory. An additional award of $250.00 for attorney’s fees was also granted. This judgment was rendered on March 18, 1980.

Plaintiff-appellee was back in court again on April 18,1980 on a nile for contempt and to make past due alimony executory and for attorney’s fees. On the second day of May, 1980 testimony and evidence were taken on a renewed request from Dr. Super for reduction of alimony payments; once again the reduction was denied with written reasons. Judge Gaudin ordered Dr. Super to continue making alimony payments in the sum of $1500.00 per month. It is from this judgment that defendant appeals.

Dr. Super concedes the well established rule of law that a putative wife, in good faith, is entitled to alimony. This right flows from LSA-C.C. Articles 117 and 118 which declare that the marriage, which has been declared null, nonetheless produces its civil effect as it relates to the parties who have acted in good faith. Cortes v. Fleming, 307 So.2d 611 (La.1973).

It is our view that the trial court correctly found that the alimony to which a putative spouse is entitled after the marriage is declared null is permanent alimony (LSA-C.C. Art. 160) as opposed to alimony pendente lite (LSA-C.C. Art. 148) Cortes, supra; Austin v. Ok Hui Pac, 378 So.2d 623 (La.App. 3rd Cir. 1979). Appellant’s contention is that while Mrs. Super may have been entitled to $1500.00 as alimony pen-dente lite, the circumstances of the parties when considered under the permanent alimony article preclude an award to plaintiff-appellee. Specifically, appellant asserts that Madeleine Super, a woman of 39 years of age with no physical disabilities, who owns two pieces of immovable property valued at $118,000.00 and $62,500.00 is barred from receiving permanent alimony under Civil Code Article 160.

The well-repeated rule in alimony cases is that the trial judge is vested with much discretion in determining an appropriate ¡amount of alimony. Only if the judge has abused his “much discretion” and gone beyond the acceptable range of alimony awards, given the circumstances of the parties, is the award to be adjusted or reversed.

Dr. Super is a psychiatrist. In addition to maintaining a private practice, he is on the staff at Charity Hospital and does work for the New Orleans Coroner’s Office as well. Income tax returns for 1978 entered into evidence show that Dr. Super earned income from his practice as well as the hospital and the coroner’s officer which would probably be over $75,000.00 for 1980. Therefore, the award of $18,000.00 per year to plaintiff-appellee is well under the maximum amount awardable under Article 160: Vs of his income. In considering “Income” in article 160 the judge considers both gross income and net income. Ballard v. Ballard, 367 So.2d 1220 (La.App. 2nd Cir. 1979). Hamilton v. Hamilton, 388 So.2d 64 (La.App. 1st Cir. 1980).

Therefore, we need only consider whether the wife’s income or ability to work should preclude or lessen her right to alimony. Mrs. Super testified that she was unemployed. She had never worked, had no training for any kind of a job and was needed at home as she had three children there. Mrs. Super lives with two daughters from a prior marriage, ages 17 and 16, and Dr. Super’s daughter from a prior marriage, age 16. It is true that adolescents of this age would not seem to require constant supervisory care, however, under current jurisprudence the fact that a divorced wife is unemployed does not bar her right to alimony. The Supreme Court has so stated in Ward v. Ward, 339 So.2d 839 (La.1976).

Insofar as current earnings of the wife are concerned, they are treated no differently than other income. When she receives earnings, they become means for her support. Such earnings must be taken into account in awarding alimony. If the wife is unemployed, however, and receives no earnings, her earning capacity or potential income is not a proper basis for rejecting alimony. Earning capacity alone does not fall within the definition of “means” in Article 160. 339 So.2d 842.

We note that Ward was decided pri- or to the 1979 Amendment of Article 160, however, it has not been overruled in post-amendment jurisprudence from the Supreme Court. Also, Art. 160 as amended does not require the denial of permanent alimony where the wife is apparently capable of employment, it only lists earning capacity as a consideration to be made in determining an alimony award. We do not feel the trial judge committed manifest error in awarding alimony to Mrs. Super even though she was unemployed.

We turn next to a consideration of plaintiff-appellee’s assets in the form of property. Mrs. Super owns a home at 10121 Tiffany which was appraised at $118,-000.00 shortly before trial. This is the home in which Mrs. Super and her two daughters live and on which appellee pays a monthly mortgage note of $476.00. In addition to this Mrs. Super owns rental property at # 17 Fairlane, on which she pays a monthly mortgage note of $130.00 and receives rental income of $450.00 per month. She testified that the house on Fairlane had been vacant until just recently while necessary repairs were ongoing. Mrs. Super borrowed the money to make these repairs from her father and testified that she presently owes him: $1100.00 for carpet, $450.00 for dishwasher, $800.00 for painting, $1400.00 for new back porch, $500.00 for new stove. It is a fair conclusion from the figures that the money received by Mrs. Super as monthly rental was below the amount she had to pay out on mortgage notes near the time of the trial.

In Hodnett v. Hodnett, 347 So.2d 17 (La.App. 3rd Cir. 1977) a substantially similar set of circumstances was present in that the wife owned the family home in addition to rental property. The Court held that the divorced wife could not be forced to rent out a small cottage in back of her home in order to reduce the alimony she received. A wife is not required to sell her home or to deplete her assets entirely before she is entitled to alimony under LSA-C.C. Art. 160. Hodnett, supra; Morgan v. Morgan, 260 So.2d 336 (La.App. 4th Cir. 1972); Procell v. Procell, 226 So.2d 590 (La.App. 2nd Cir. 1969).

Mrs. Super estimates her monthly expenses at $5,761.68. Appellant objects to this stating that Mrs. Super could not possibly have monthly expenses greater than her monthly income. However, this situation is not so unusual and has come before the courts before. Hodnett, supra; Bruner v. Bruner, 373 So.2d 971 (La.App. 2nd Cir. 1979). Appellant further objects that the list of expenses appears to include expenses for the children, for whom Mrs. Super receives separate child support payments. To this contention we must answer that appellant failed to prove that any amount was not a living expense of Mrs. Super herself and that the judge having heard several rules for reduction and to make alimony payments executory had a far better knowledge of the parties and their status than do we. He was in better position to determine whether a reduction was called for and finding no abuse of discretion we affirm his judgment.

AFFIRMED.


author: GUIDRY, Judge.

text:
    STATE of Louisiana, DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT, Plaintiff-Appellant, v. BOYCE GIN COOPERATIVE, INC., Defendant-Appellee.
    No. 8182.
    Court of Appeal of Louisiana, Third Circuit.
    April 15, 1981.
    Amended Judgment May 13, 1981.

      Johnie E. Branch, Jr., Baton Rouge, for plaintiff-appellant.
    James D. Davis, Davis & Murchison, for defendant-appellee.
    Before GUIDRY, SWIFT and LA-BORDE, JJ.
   GUIDRY, Judge.

This is an expropriation suit instituted by the State of Louisiana, through the Department of Transportation and Development, hereafter DOTD, against Boyce Gin Cooperative, Inc., hereafter Boyce, under the provisions of LSA-R.S. 48:441 et seq., commonly referred to as the “quick taking” statute.

Plaintiff deposited the sum of $1261.00 for the taking of two parcels of land in fee, specifically a parcel designated as 43-6 containing 652.59 square feet and a parcel designated as parcel 43-16 containing 747.12 square feet. The aforementioned parcels were taken from a tract of land with improvements thereon situated, owned by Boyce which measured 100 feet along its north and south lines and 320 feet on its east and west lines. The Boyce tract is situated in the town of Boyce, Louisiana, at the intersection of La. Highway 1, also known as Pacific Avenue, and La. Highway 8, also known as Ulster Avenue, being bounded West by La. Highway 1 and North by La. Highway 8. At the time of taking Boyce operated its cotton ginning facility on the aforementioned tract of land. The takings comprise a strip of land approximately 4V2 feet in width commencing at the southwest corner and extending northerly along the west line of the Boyce property a distance of approximately 143 feet; and, a parcel approximately 4Vz feet in width commencing at a point in the west line approximately 178' north of the southwest corner and then extending northerly to a point 17.03 feet south of the northwest corner at which point the taking flares at an angle to a width of 27.68'. The latter parcel is flared at the northwest corner of the Boyce property in order to construct a barrier curb which is to facilitate traffic at the intersection of La. Highways 1 and 8. Utility poles and/or guy wires are situated within the limits of the property taken in the immediate vicinity of defendant’s seed hopper facility which is located at the approximate middle of the west line of the Boyce property. For purpose of clarity we attach, as appendix I, a survey of the Boyce property, introduced as Defendant’s Exhibit 1, which depicts the limits of the Boyce property, the parcels taken, and the location of the buildings and other improvements comprising the defendant’s ginning facility.

According to the record the State will construct a barrier curb, 6 inches in height, in the flared area, which barrier curb is to be located at the northwest corner of the Boyce property. Mountable curbs, also known as “rollover” curbs will be constructed along the rest of the frontage on Highways 1 and 8.

The parties stipulated that the land and buildings located on the property had a market value, as of the time of taking, as follows:

Land (32,027.59 sq. ft. @ .90$
per sq. ft.).$28,825.00
Gin Buildings.$21,362.00
Tractor Shed. $ 4,201.00

The State deposited the sum of $1261.00 in the registry of court for the taking of 1399.-71 square feet. Therefore, in effect, the parties stipulated that the plaintiff had deposited in the registry of court a sum exceeding by $1.26 the actual value of the land taken.

The disagreement between the parties centers around the question of severance damages. The State contends that as a result of the taking the property remaining to Boyce will suffer no damage. On the other hand defendant contends that as a result of the taking and the construction in the area taken and the immediate vicinity thereof it will be unable to operate its gin facility and therefore is entitled to recover, as severance damages, the total value of such facility less land value and the salvage value of buildings and machinery. The trial court decided in favor of defendant awarding the latter $163,314.00 in severance damages and attorney’s fees in the amount of $10,500.00. In addition the trial court awarded a fee of $2800.00 to defendant’s expert and cast plaintiff with all costs which can be legally assessed to it. The DOTD has appealed. Defendant has answered the appeal asking for an increase in both the severance damage and attorney’s fee awards.

SEVERANCE DAMAGES

All of the experts who testified agreed that the issue as to whether or not the property remaining to defendant suffered severance damage is resolved by a determination of whether or not Boyce’s ginning facility can operate, following the taking, as efficiently as it did before. On this issue plaintiff presented the testimony of its project engineer and the testimony of Messrs. Mike Gehr and Byron Core, real estate appraisers. These witnesses all expressed the opinion that the taking and proposed construction would cause no interference with ingress and egress to the property or the facilities located thereon and therefore defendant’s remaining property suffered no severance damage. On the other hand, defendant presented the testimony of Mr. Habeeb Monsur, Jr., expert appraiser, and Messrs. Lloyd Dean and Louis Stevens, both members of the Boyce Gin Cooperative, and former managers, all of whom expressed the opinion that considering the size of the Boyce property before the taking and the proximity of its facilities to the old right of way the taking and proposed construction would render the remaining Boyce property useless as a ginning facility. In support of this opinion these experts testified that ingress to and egress from the property would be severely restricted, particularly considering the size, weight and maneuverability of the vehicles which are used to haul cotton to the gin and those employed to transport baled cotton and seed from the facility. All of these experts testified that the presence of the barrier curb at the intersection of Highways 1 and 8 would greatly impede ingress to the tractor shed from Highway 1 and egress from the seed hopper onto Highway 8. Further, these experts testified that the taking and construction in the area of the seed hopper would render it useless because none but the most expert of drivers could maneuver a large vehicle so as to center the trailer directly beneath the hopper.

In resolving the issue of severance damages favorable to the defendant the trial court stated:

“The court, having considered all the testimony and evidence, is of the opinion the property on which the cotton gin now sits is so restricted by the expansion of the highway that the cotton gin cannot be run efficiently and will be forced to cease operations.”

The issue as to whether or not property remaining to a condemnee has suffered severance damage is essentially a question of fact. Our jurisprudence mandates that an appellate court should not alter a trial court’s finding of fact in the absence of manifest or clear error. Canter v. Koehring Co., 283 So.2d 716 (La.1973); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). This principle of appellate review is equally applicable in matters of expropriation. State, Department of Transportation & Development v. Van Willet, 383 So.2d 1344 (La.App. 3rd Cir. 1980); State, Department of Transportation & Development v. LeBlanc, 388 So.2d 412 (La.App. 1st Cir. 1980). Our careful review of the record in this case reveals not only a reasonable factual basis for the trial court’s conclusion but that there is no clear error in such finding. Arceneaux v. Domingue, supra.

Having found no clear error in the trial court’s finding that the cotton gin facility of Boyce has been rendered totally useless as a result of the taking we next consider the award of severance damages made by the trial court. In formulating the award in this case the learned trial judge accepted the “in globo” estimate of value for the Boyce Gin in place given by J. E. Bell, an expert in the field of cotton gin equipment, including the sale of new and used ginning machinery and cotton gins in place. Mr. Bell testified that the Boyce Gin, in place, had an “in globo” value, including land, buildings and machinery, of $250,000.00 and that the gin machinery, upon cessation of operations, could be sold for the sum of $65,000.00. Accepting the above values as accurate the trial court, in its written reasons for judgment, proceeded as follows in fixing the award of severance damages:

“... The Court finds that the value of the cotton gin including land on which it is situated was $250,000 after considering the testimony of all witnesses. This represents the value prior to the taking. From this must come the value of the equipment which could be sold, $65,000; salvage value of the buildings, $1,840; and remaining value of land, $28,825.
$65,000 Equipment Salvage
1,850 Building Salvage
28,825 Land Value
$95,675
In order that salvage on equipment and buildings can be realized, certain demolition costs, $10,250, must be deducted from amount received from salvage.
$95,675
10¿250 Demolition costs
$85,425
Therefore, the defendant should have land, equipment, and building with a vlue (sic) of $85,425 after the taking. By subtracting this sum from the original market value of $250,000, the Court arrives at $165,575. From this, the Court must subtract the original payment of $1,261, giving a total amount of severance damages of $163,314.”

The other values used by the trial court in formulating the award are those given by defendant’s expert, Mr. Mansour, except the land value which was stipulated to by the parties.

On appeal plaintiff urges that the award is too high and that the trial court erred in accepting the opinions as to value advanced by defendant’s experts particularly Mr. Bell’s “in globo” value over that of its expert, Mr. Aubrey McMaster, who itemized the machinery, etc. piece by piece. In its answer to the appeal, defendant urges that the award of severance damages should be increased pursuant to the estimate of Mr. Mansour.

We discern no error in the trial court’s acceptance of Mr. Bell’s “in globo” estimate of the value of the Boyce gin in place in formulating his award. LSA-Const. Article 1, Section 4 (1974) provides that in matters of expropriation “the owner shall be compensated to the full extent of his loss”. In State, Department of Highways v. Champagne, 356 So.2d 1136 (La.App. 3rd Cir. 1978) we expressed our views concerning a proper interpretation of the cited provision of our constitution and stated:

“We consider the intent of the redactors of the 1974 Constitution to be that once the landowner has received compensation in an amount sufficient to place him in as good a position pecuniarily as he would have been, had his property not been taken, the landowner has received compensation ‘to the full extent of his loss ’.”

If defendant is to be placed in as good a position pecuniarily as it would have been had no taking occurred, then in formulating an award of just compensation the value of its facility “in place” is the proper “before value” to be used in calculating severance damages.

The question as to what amount of damages will compensate a condemnee to the full extent of his loss is likewise an issue of fact. Such determination is necessarily dependent upon evidence presented in the form of opinions from expert witnesses. It is the particular province of the trial judge to weigh the credibility and expertise of such witnesses and his findings and conclusions on the basis of such evidence should not be altered on appellate review absent a showing of clear error. The trial court’s ultimate conclusion in regard to the amount of severance damage suffered by defendant is fully supported by the record. Finding no clear error in the trial court’s award we decline to either increase or decrease same.

EXPERT WITNESS FEES

Plaintiff complains that the expert witness fee of $2800.00 allowed to defendant’s expert, Mr. Hab Mansour, is excessive and should be reduced. We cannot agree. Mr. Mansour, filed a documented and well reasoned report. The trial court in fact accepted in part the opinion of Mr. Mansour in setting the award of severance damages. Mr. Mansour, as defendant’s expert, is entitled to reasonable compensation for his appearance in court and for preparatory work done by him. LSA-R.S. 13:3666; State, Department of Highways v. Mims, 336 So.2d 24 (La.App. 3rd Cir. 1976), writ denied, 339 So.2d 16 (La.1976). We do not find the fee awarded Mr. Mansour to be so out of line with the work performed or so inconsistent with awards in similar cases as to constitute an abuse of the much discretion allowed to the trier of fact.

ATTORNEY’S FEES

Defendant has answered this appeal requesting an increase in the award of attorney’s fees suggesting that it is entitled to be paid 25% on any amount awarded in excess of $1261.00. LSA-R.S. 48:453 provides for an award of attorney’s fees in expropriation matters, up to a maximum of 25%, if the amount of the compensation deposited in the registry of court is less than the amount of compensation awarded in the judgment. Defendant is therefore clearly entitled to an award of attorney’s fees however, the statute does not require the award of attorney’s fees to equal 25% of the excess award. Rather, the provisions of the statute allow for reasonable attorney’s fees not to exceed 25% of the excess award. In the instant case' the trial court awarded $10,500.00 as attorney’s fees. We consider this award to be reasonable and conclude that such sum is sufficient to compensate for the services rendered by counsel for defendant both at the trial level and on appeal.

COSTS

The trial court taxed the costs of these proceedings as follows:

“The plaintiff is cast for all costs which can be legally assessed to it and the defendant is cast for any remaining costs.”

Defendant, in answer to this appeal, requests an amendment of the trial court judgment which would cast the plaintiff for all costs of these proceedings. We -believe that defendant is entitled to this relief. LSA-R.S. 13:5112 provides as follows:

“A. In any suit against the state or any department, board, commission, agency, or political subdivision thereof, the trial or appellate court, after taking into account any equitable considerations as it would under Article 1920 or Article 2164 of the Code of Civil Procedure, as applicable, may award in favor of the successful party and against the state, department, board, commission, agency, or political subdivision against which judgment is rendered, such court costs under R.S. 13:4533 and other applicable law as the court deems proper but, if awarded, shall express such costs in a dollar amount in a judgment of the trial court or decree of the appellate court.
B. In accordance with Section 10 of Article XII of the Constitution neither the state nor any other department, board, commission, agency, or political subdivision thereof shall be required to pay court costs until the judgment rendered against the state, department, board, commission, agency, or political subdivision shall become final and definitive under the provisions of Articles 2166 and 2167 of the Code of Civil Procedure or otherwise nonappealable or nonreviewable beyond the delays set by law for same and the funds have been appropriated therefor in specific dollar amount.
C. This law shall not apply to, nor shall the Office of Employment Security or the administrator be cast for any court costs in, any judicial review proceeding under the provisions of R.S. 23:1634.”

In State, Department of Transportation & Development v. Van Willet, supra, we held the provisions of LSA-R.S. 13:5112 applicable to expropriation matters instituted by the DOTD wherein defendant reconvened for damages in excess of that deposited by the department. We adhere to our opinion that the cited statute is applicable in such cases. Accordingly, we will amend the trial court judgment only to tax plaintiff with all costs and to express such costs in a dollar amount as prescribed by such statute.

Accordingly, for the reasons assigned, the judgment of the trial court is amended so as to tax plaintiff with all costs of these proceedings in the trial court, the total costs at the trial level for which the plaintiff is cast being fixed at $ 2533.75 Costs of this appeal in the sum of $ 451.25 are taxed to plaintiff. Except as amended the judgment of the trial court is affirmed.

AMENDED AND AFFIRMED.

AMENDED JUDGMENT

We recognize, on our own motion, that we committed an error in calculation in framing the judgment rendered with regard to costs. Accordingly, we amend and correct the judgment rendered by this court in the captioned matter on April 15,1981, so as to tax plaintiff with all costs of the proceedings in the trial court. The total costs at the trial level for which the plaintiff is taxed is $3,020.00 and the cost of this appeal in the sum of $372.75 are also taxed to plaintiff. Except as herein amended, the judgment of this court rendered as aforesaid is reinstated and made the final judgment of this court.

      . The property was taken in two parcels in order not to disturb or affect the outer wall and supports of Boyce’s seed hopper which extended westerly to the old right of way limits of La. Highway 1. In other words the taking along Boyce’s west property line was made to jog around their existing seed hopper facility.

      . The record reflects that cotton trailers, usually hauled by tractors, vary in length from 27' to 40' and are difficult to maneuver. The cotton seed is usually transported by “over the road” tractor-trailers which have an overall length of 60'.