author: SAMUEL, Judge.

text:
    Harry R. LAYNE v. Gerald L. SCHROEDER.
    No. 11775.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 2, 1981.

      Thomas S. Loop, Metairie, for plaintiff-appellant.
    Montgomery, Barnett, Brown & Read, Sylvia Landry Holder, New Orleans, for defendant-appellee.
    Before SAMUEL, REDMANN and STOULIG, JJ.
   SAMUEL, Judge.

Plaintiff, Harry R. Layne, filed suit against defendant, Gerald L. Schroeder, to recover $327,000 representing damages he claims resulted from his purchase from defendant of a building, located in the City of New Orleans, which did not comply with city building ordinances. Plaintiff alleges and seeks damages of $7,000 to comply with the building ordinances and $320,000 resulting from lost lease income, additional construction loan expenses, and future damages which may result from delays occasioned in completing improvements required by a lessee of the building. Alternatively, he seeks reduction of the purchase price by the amount of $7,000.

Defendant answered, admitted the sale on December 18,1975, but otherwise denied liability. Alternatively, defendant pled matters complained of by plaintiff did not constitute a breach of warranty or defect in the premises, and that any defect in the premises was apparent on reasonable inspection.

Subsequently, defendant filed an exception of prescription of one year, asserting that the face of the petition and admissions in the record demonstrated the sale and the discovery of the alleged defect both occurred more than one year prior to commencement of plaintiff’s suit.

The trial judge maintained defendant’s exception of prescription and rendered judgment dismissing plaintiff’s suit with prejudice. Plaintiff has appealed.

It is clear that plaintiff’s alternative prayer for reduction in the purchase price has prescribed. Civil Code Article 2534 provides a redhibitory action must be instituted within a year, at the farthest, commencing from the date of sale. Civil Code Articles 2545 and 2546 provide that when the seller knows the vice in the thing he sells, a redhibitory action may be commenced within one year from discovery of the vice. Article 2541 further provides that one entitled to prosecute a redhibitory action may limit his demand to one for reduction of the purchase price, and Article 2544 provides that the action for reduction of price is subject to the same rules and limitations as the redhibitory action.

Plaintiff’s suit was filed on October 24, 1977. His petition alleges that: On December 8, 1975 he purchased from defendant a portion of ground and a building thereon in the City of New Orleans; it was specifically understood by the parties that the building and improvements situated on the property complied with all applicable building ordinances; and in December, 1975 plaintiff leased the building for five years, agreeing to make improvements required by the lessee, but when he applied for appropriate permits from the City of New Orleans, he learned the building was excessive in total area for a “Type IV” building, since it exceeded 15,000 square feet.

The petition also alleges that the records of the New Orleans Office of Building and Safety Permits show excessive square footage previously was brought to the attention of defendant by letter dated March 26,1975 by the Office of Building and Safety Permits, and that on March 27, 1975 defendant responded to the City’s notice by a letter affidavit acknowledging the excessive square footage and agreeing to provide two “hour” walls between the tenant areas to reduce the square footage below the 15,000 square foot maximum. The petition contains a verbatim quotation of defendant’s letter to the city.

The petition further alleges defendant’s failure to advise plaintiff that the building did not comply with applicable building restrictions and defendant’s failure to remedy the defect after notice resulted in a breach of the contract to sell and of defendant’s warranty to plaintiff. Plaintiff alleges he is entitled to damages because defendant was fully aware the property did not comply with all building ordinances and knew he had promised to rectify this non-performance in his letter affidavit of March 27, 1975.

The suit was brought more than one year after the date of the purchase of the property in question. Moreover, in response to a request for admissions of fact, plaintiff admits receiving a letter from H. Hirsch-burg & Associates on September 2, 1976, in which a disclosure of the building restrictions and the excessive square footage in the building was made known to him. Thus, the suit filed by plaintiff on October 24, 1977 came approximately thirteen and one-half months after plaintiff discovered the defect, and he is not entitled to recover in either redhibition or quanti minoris.

Nevertheless, plaintiff argues he is entitled to maintain an action for damages on the basis of defendant’s fraudulent conduct, and that such an action prescribes in five years pursuant to Article 3542 of the Louisiana Civil Code. He relies primarily upon the decision of this court in Musser v. Copping. In that case plaintiff purchased a home upon defendant’s representation that it had acquired a non-conforming use. More than one year after purchase, plaintiff sued to rescind the sale, and to recover the purchase price, cost of renovation, and other damages. Defendant’s exception of prescription was overruled on the basis of Article 2547 of the Louisiana Civil Code, which provides:

“A declaration made by the seller, that the thing sold possesses some quality which he knows it does not possess, comes within the definition of fraud, and ought to be judged according to the rules laid down on the subject, under the title: Of Conventional Obligations.
“It may, according to circumstances, give rise to the redhibition, or to a reduction of price, and to damages, including reasonable attorneys’ fees, in favor of the buyer.”

In Musser we concluded the allegations in the petition averring misrepresentations as to the qualities possessed by the home purchased by plaintiff was sufficient to satisfy the requirements of Article 2547 and served as a basis for a suit under that article. The court then applied the five year prescriptive period contained in Civil Code Article 3542, and held plaintiff’s action had not prescribed. It is significant to note that the word “fraud” was not expressly used in the petition.

Defendant in this case attempts to avoid a fraud remedy on two grounds. First, he cites Crowley Grain Drier, Inc. v. Fontenot, for the authority that any action involving a breach of the warranty in a contract of sale must be founded upon redhibition and subject to the prescription of one year. The wording quoted by defendant reads as follows:

“Ordinarily, as the defendants contend, the prescription applicable for damages caused by a breach of contract is not a one year prescription, but is rather the ten year prescription provided by LSA-Civil Code Article 3544. See American Heating & Plumbing Co. v. West End Country Club, 171 La. 482, 131 So. 466; Vicknair v. Rapides Parish School Board, La.App. 3 Cir., 128 So.2d 821. However, unlike damages for other contractual breaches, damages caused by a breach of the warranty in a contract of sale are regarded as founded upon redhibition and subject instead to the cited codal prescription of one year applicable to redhi-bitory actions. Rapides Grocery Co. v. Clopton, 171 La. 632, 131 So. 734; Walton v. Katz & Besthoff, Inc., La.App.Orl., 77 So.2d 563, certiorari denied.”

Defendant also argues plaintiff may not come under Article 3542, providing the five year prescription, because “fraud must be pled with specificity or else such an action will not lie.”

With regard to the first argument made by defendant, a reading of Crowley Grain Drier, Inc. v. Fontenot shows the reconven-tional demand filed by defendant was based on a simple redhibition claim, and there was no allegation of a knowing misrepresentation. The claim for the defect in the grain was purely one based on redhibition principles, with no element of fraud involved in the defective merchandise. Consequently, the court clearly was obliged to apply the prescription of one year.

Next, Article 856 of the Louisiana Code of Civil Procedure provides in pertinent part:

“In pleading fraud or mistake, the circumstances constituting fraud or mistake shall be alleged with particularity.”

While this article requires a particularized statement of facts which constitute fraudulent conduct, it does not mandate that the word “fraud” be used.

In the present case, the petition alleges the parties specifically understood the building and improvements thereon complied with all applicable building ordinances. It alleges the building did not comply with all ordinances, because it exceeded 15,000 square feet. It further alleges with great particularity that this violation was brought to defendant’s attention by the City by letter dated March 26, 1975, and that by letter dated March 27,1976 defendant responded with the promise to rectify the violation by taking steps to reduce the square footage below the maximum of 15,-000 square feet. Copies of both letters were attached to the petition as exhibits.

As in the Musser case, we conclude the allegations containing averments of misrepresentation as to the qualities possessed by the building were sufficient to satisfy the requirements of Article 2547 and to serve as the basis for a suit thereunder. As in Mus-ser, the allegations of the petition state facts which demonstrate fraudulent conduct, even though the word “fraud” was not used in the petition.

A reading of the petition as a whole demonstrates plaintiff’s suit was based upon defendant’s breach of contract in selling a building known to violate ordinances controlling the size of such buildings. The request for a reduction of the purchase price was contained only in the prayer as an alternative request, apparently in the event the court should find plaintiff was not entitled to recover the damages alleged for breach of contract. Plaintiff is therefore entitled to proceed under the allegations of his petition.

For the foregoing reasons, the judgment appealed from is affirmed only insofar as defendant’s exception of prescription applies to plaintiff’s alternative claim for a reduction in the purchase price. The judgment is reversed insofar as it dismisses plaintiff’s entire suit with prejudice, and this case is remanded to the district court for trial of all claims other than that for a reduction in purchase price, all in accordance with law and with the views expressed in this opinion. All costs are to await a final determination.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

      . See Cotton States Chem. Co. v. Larrison Enterprises, La.App., 342 So.2d 1212.

      . La.App., 325 So.2d 681.

      . LSA-C.C. Art. 3542 provides:
      “The following actions are prescribed by five years:
      “That for the nullity or rescission of contracts, testaments or other acts.
      “That for the reduction of excessive donations.
      “That for the rescission of partitions and guarantee of the portions.
      “This prescription only commences against minors after their majority.”

      . La.App., 132 So.2d 573.

      . Supra, note 2.

      .Civil Code Article 2547; Musser v. Copping, supra, note 2.


source: Caselaw Access Project

author: CHEHARDY, Judge.

license: Public Domain

text:
    Donald C. SCOTT v. Paul H. RAMOS.
    No. 11907.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 2, 1981.
    Donald J. Pickney, Bruce A. Scott, New Orleans, for plaintiff-appellee.
    Nicaud, Justrabo & Rousset, René R. Ni-caud, Felix 0. Rousset, and J. Courtney Wilson, New Orleans, for defendant-appellant.
    Before GULOTTA, GARRISON and CHEHARDY, JJ.
   CHEHARDY, Judge.

Defendant, Paul H. Ramos, appeals a district court judgment on a motion for a new trial in favor of plaintiff, Donald C. Scott, and against the defendant, recalling an earlier judgment rendered by that court and recasting the defendant as follows:

“IT IS ORDERED, ADJUDGED AND DECREED that a permanent injunction issue herein, directed to defendant Paul H. Ramos, ordering him to keep the tree, its limbs and branches cut so that they remain cut back to the property line to a point ten feet above the eaves and at no point shall they be closer than ten feet above any part of the roof.
“It is further ordered that defendant reimburse plaintiff the reasonable cost of screening all the gutters on the plaintiff’s house and keeping them in repair.
“It is further Ordered that between December 15th and December 31st of each year, defendant reimburse plaintiff for the reasonable cost of removing leaves and other fallen debris from the roof of plaintiff’s house and garage.
“It is further Ordered, Adjudged and Decreed that when necessary, but not more often than once a month, in addition to the above, defendant shall reimburse plaintiff reasonable expense incurred in removing leaves and branches from plaintiff’s yard.
“It is further Ordered, Adjudged and Decreed that in addition to the above, should a storm cause the falling of unusual amounts of leaves or other debris from the tree, defendant shall reimburse plaintiff the reasonable expense of removing said debris.”

This judgment was also later amended assessing costs against the defendant. In giving his reasons for the amended judgment, the district court judge also stated:

“According to the uncontradieted testimony, the trimming required by previous judgment would effectively destroy the tree. As indicated, I have visited the area and inspected the two yards so as to develop an impression of how best in equity to adjust the differences between these neighbors.
“The tree is large and beautiful (if you like trees) and should be preserved, not only for the sake of Mr. Ramos, but for the sake of his neighborhood.
“C.C. Art. 688 qualifies the right of a land owner to demand that overhanging branches be trimmed by requiring a demonstration that the overhanging branches ‘interfere with the use of his property’.
“If overhanging branches can be trimmed to a point short of the property line but which trimming eliminates interference with the neighbor’s ‘enjoyment’, the article seems to prefer such a result.
“The injunction order fashioned, hopefully, achieves an equitable adjustment of the rights afforded each party under this article.”

LSA-C.C. art. 688 provides:

“A landowner has the right to demand that the branches or roots of a neighbor’s trees, bushes, or plants, that extend over or into his property be trimmed at the expense of the neighbor.
“A landowner does not have this right if the roots or branches do not interfere with the enjoyment of his property.”

We find no prior jurisprudence related to this particular article which became effective January 1, 1978. It is our opinion, in view of this article, that a landowner has only a qualified right to demand from a neighbor trimming of branches from the neighbor’s trees extending over the landowner’s property at the neighbor’s expense and that right is limited to the extent that the branches interfere with the landowner’s enjoyment of his property.

The plaintiff and the defendant own adjacent properties. The defendant has a large oak tree which extends over the property of the plaintiff and, to some extent, overhangs the roof of plaintiff’s house. Plaintiff testified that every time the wind blows the tree deposits leaves and branches on his roof requiring him to get roofers out on a number of occasions to clean out the gutters, sweep debris off the roof and repair broken shingles. The plaintiff also testified he had bought the property in July of 1973, moved there in November of that year, and continued to reside there until the fall of 1976. He remained the owner of the then tenant-occupied property at the time of the September 4, 1979 trial. Pictures introduced in evidence, before and after trimming, establish that there were still many branches overhanging the house. Evidence was also introduced that plaintiff paid for the work of cleaning the gutters and down pipes on the entire main building, removing all debris and sweeping clean a metal valley in the rear. Scott further testified the situation with the tree has caused him apprehension regarding safety of tenants now residing in the property.

The defendant, who acquired his property in 1964, admitted the tree is approximately 50 feet tall and extends out in all directions and that there are limbs over the roof of the plaintiff’s house. He also said the last time he had the tree trimmed was in July of 1979.

Lawrence Kuhn, who was recognized by the court as a tree expert, said the subject tree is a more than 50-year-old water oak which has surpassed its period of best growth and would soon be less vigorous in its response to attacks of decay and fungi. He added if a certain type of rot got into the large branch stubs at this advanced age it would be expected to accelerate decay, causing a hazardous situation due to its becoming more susceptible to “wind throw” and uprooting in severe winds or hurricanes.

Kenneth Wheeler, an expert in tree surgery, said leaves from the tree would fall on Scott’s house primarily in late November and early December, and that the plaintiff’s property would get perhaps 30 percent of the falling leaves with approximately 20 percent falling on his roof. Wheeler further stated if the tree were to be cut back to the property line, it would be susceptible to sun scald, which could cause large injuries or death. He added large cuts do not heal fast and the tree could become weakened and die, resulting in danger to both parties’ properties. The finding of fact by the district court judge — that if the branches of the tree were cut back to the property line it would effectively destroy the tree — is substantiated by the testimony of the two expert witnesses. LSA-C. C.P. art. 3601 also states an injunction shall issue where irreparable injury, loss or damage may otherwise result to the applicant, or in other cases specifically provided by law. LSA-C.C. art. 688 obviously provides that injunctive relief is available to a plaintiff landowner under this article in the form of demanding of his neighbor under certain circumstances that branches or roots be trimmed at the neighbor’s expense. It is reasonable to infer, therefore, that the article also gives the right to injunctive relief to prevent roots or branches from interfering with a neighbor’s enjoyment of his property as an alternative to actually ordering the branches or roots to be trimmed and certainly the choice of this alternate resolution is within the discretion of the trial court judge. Considering the age and beauty of the tree, as well as the finding of fact that severe cutting back of the large limbs to the property line would effectively destroy it and perhaps create a serious safety hazard to the properties of both parties, this court cannot find that the trial court judge abused his discretion in choosing this alternative resolution to the problem.

We find no error in the district judge’s assessment of costs against the defendant.

For the reasons assigned, the trial court judgment is affirmed.

AFFIRMED.


author: BARRY, Judge.

text:
    Sylvia Bridgewater WEAVER v. OTIS ELEVATOR COMPANY and Sears, Roebuck and Company.
    No. 11922.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 2, 1981.

      David Band, Jr., New Orleans, for plaintiff-appellant.
    Chaffe, McCall, Phillips, Toler & Sarpy, Harry McCall, Jr., New Orleans, Borrello & Huber, Bruce J. Borrello, Metairie, for defendants-appellees.
    Before BOUTALL, SCHOTT and BARRY, JJ.
   BARRY, Judge.

Plaintiff sued Sears, Roebuck and Co. (Sears) and Otis Elevator Co. (Otis) for personal injuries allegedly received on a freight elevator in Sears’ downtown store in New Orleans. The district court dismissed the lawsuit and plaintiff now appeals assigning various errors for consideration.

Plaintiff was employed as a janitorial worker for a private company. She went to the Sears building to work and was alone when she took the freight elevator to the fourth floor to sign in. She testified that the elevator was “jerking” and stopped once between floors, and when she reached the fourth floor the inner screen gate opened but the two outside doors only partially opened. Plaintiff then attempted to force open the outer doors but they suddenly closed on her right wrist. A few minutes later the outer doors opened and she went about her duties. Plaintiff testified that she told a co-worker that she hurt her hand, but did not report the incident to her supervisor nor did she report the alleged malfunctioning elevator doors. She did not seek medical attention until the following day and was subsequently paid compensation benefits for a period thereafter.

The record shows this freight elevator has an inner steel mesh gate that opens upward. The mesh is too small to place a hand through. The elevator shaft on each floor of the building is closed by two metal doors which open vertically. Once inside the elevator the inner mesh gate must be fully closed before the outer metal doors start to close: to leave the elevator the mesh gate does not go up until the metal doors are open. The elevator is owned by Sears and serviced by Otis.

Plaintiff testified that she had witnessed previous problems with the opening and closing of the two metal doors. At the time of her injury she stated that the mesh gate opened first but the metal doors “... didn’t go wide enough to stick my feet in there, so I stuck my hand in there to push the door down and it clamped back on my hand.” She said she was unable to extract her hand and with her other hand punched the “open” button which released the metal doors and freed her hand.

The co-worker confirmed plaintiff told her about the accident on the evening of the occurrence and stated she (the co-worker) had to manually open the two metal doors on prior occasions.

A fellow worker testified that the metal doors do not always close completely and sometimes he had to close them with his hand.

Plaintiff’s supervisor was not told about the accident until he saw plaintiff the following day with her arm bandaged. The supervisor asked what happened and plaintiff responded that she hurt her arm on the elevator. The supervisor confirmed that no accident report was made because plaintiff did not report an accident and on the evening in question he observed plaintiff’s work and saw nothing unusual about it. The supervisor also testified if there had been a malfunction of the elevator it would have been reported to him, but he did not receive a report and to his knowledge the elevator was working at that time.

The operating superintendent of Sears testified he learned about the alleged accident approximately six days later from Sears’ insurer, but that no report had been received of any malfunction of the elevator. Sears’ chief engineer testified he had no knowledge nor report of any malfunction on the night of the alleged accident and it was a week or so before he was informed.

A maintenance examiner employed by Otis and assigned to the Sears store testified that he was not notified of any accident on the date in question.

There was testimony that the edges of the upper and lower metal doors were covered with a flat rubber material folded over which compresses when the two doors meet. The Otis maintenance examiner stated the rubber runs the length of the two edges for safety purposes, and for emphasis stated he had placed his hand between the doors during closing and did not experience pain or discomfort. He also explained that the speed of the doors is under torque control which causes the doors to slow down and close gently.

Sears’ chief engineer testified that he experimented to determine the force of the two doors on closing and a cardboard box placed between the doors was not mashed.

Plaintiff submits defendants should be held liable under strict liability, under the application of res ipsa loquitur, and because the elevator is a common carrier owing the highest duty of care. However, before exploring the application of these principles, we look to the written reasons for judgment submitted by the trial court which state:

“The court is of the opinion that plaintiff has failed to carry the burden by proving, by a preponderance of the evidence, that the accident which plaintiff claims to have caused the injuries for which she has made claim, did occur as alleged by plaintiff.”

We therefore conclude that the trier of fact did not believe plaintiff’s testimony that she sustained an accident or if there was an accident that it caused the injury for which plaintiff seeks damages.

Plaintiff was alone on the elevator and there is no witness corroboration as to what happened, if anything. The only indirect verification was supplied by the co-worker who simply stated that the plaintiff mentioned to her that she hurt her hand on the elevator. No accident report was made nor was a report concerning malfunction of the freight elevator doors.

We are impressed with the testimony of the elevator personnel from Sears and Otis which is uncontroverted that plaintiff nor anyone else reported a malfunction of the freight elevator doors on the date this alleged incident occurred. Their testimony concerning the lack of damaging impact when the outer metal doors close seriously questions the possibility of wrist damage claimed by the plaintiff. Most importantly, the testimony convinces us that the inner mesh door does not open until the outer doors open first, making it impossible for plaintiff to reach the outer doors as she claims.

In order to consider imposition of strict liability or res ipsa loquitur or any other basis for liability, plaintiff must first establish that she was injured as a result of the faulty elevator. Under Marquez v. City Stores, Inc., 371 So.2d 810 (La.1979), plaintiff need only prove “any unusual occurrence” on the elevator with resultant injury in order to impose strict liability. The district court’s reasons for judgment do not specify if plaintiff’s lawsuit was dismissed because of insufficient proof of any unusual occurrence or through disbelief that plaintiff sustained any injury on the elevator.

Even if we were to disagree with the conclusion of the trial judge the record must support on appellate review that there was manifest error. Canter v. Koehring Co., 283 So.2d 716 (La.1973). Our responsibility is to afford great weight to the factual conclusions of the trier of fact even if there be conflict in the testimony because of the trial court’s ability to evaluate live witnesses as compared to our proverbial “cold record”. We resolve that appellant has not established manifest error in the trial court’s finding of fact.

We therefore affirm the district court’s judgment dismissing plaintiff’s lawsuit and assess all costs of this appeal to plaintiff/appellant.

AFFIRMED.

      . The compensation carrier sued for reimbursement herein.


author: SCHOTT, Judge.

text:
    Philip J. BOYKIN v. Steven A. KLOOR and United States Fidelity and Guaranty Company.
    No. 11924.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 2, 1981.
    Harry T. Widmann, New Orleans, for plaintiff-appellant.
    Daniel Lund, Alexander N. Breckinridge, IV, Montgomery, Barnett, Brown & Read, New Orleans, for defendants-appellees.
    Before BOUTALL, SCHOTT and BARRY, JJ.
   SCHOTT, Judge.

Plaintiff has appealed from a judgment in his favor seeking an increase in the damages awarded. The issue is whether he is entitled to recover expenses he incurred for extensive medical tests for cancer, and general damages for his fear or emotional distress over the possibility of having cancer where cancer symptoms were not caused by the accident but were discovered incidentally when plaintiff was examined for injuries he sustained in the accident.

Plaintiff was struck by defendants’ automobile on October 11, 1975, and was brought to Charity Hospital for emergency treatment. On October 14 he consulted his private physician who, in turn, referred him to an orthopedic surgeon, Dr. Earl J. Rozas. He found contusions on plaintiff’s right hip and right shoulder area with partial separation of the right shoulder. During the course of the examination Dr. Rozas also discovered some cysts in the right hip which suggested the possibility of malignancy and led Dr. Rozas to recommend a bone scan. This revealed isotope localizations (referred to as “hot spots”) in the left hip, the right sacroiliac joint, the lower thoracic vertebrae in the region of T-10, and the right shoulder which further suggested the possibility of cancer and led Dr. Rozas to refer plaintiff to an internist, Dr. Hak Kian Oei.

Dr. Oei admitted plaintiff to the hospital where extensive tests for cancer were performed over a six day period. All of these were negative except that his prostate showed an elevated acid phosphatase which Dr. Oei felt might be an indication of cancer. However, the next diagnostic step would be a biopsy from the prostate which Dr. Oei preferred to postpone for a few weeks. Plaintiff was readmitted to the hospital in January, 1976, for the biopsy but when tests showed that the acid phosphatase in his prostate was now within normal limits the biopsy was no longer necessary. On the basis of extensive testing, including a bone scan which revealed only one area of abnormality thought to be the result of trauma, cancer was ruled out by Dr. Oei.

The trial court awarded plaintiff $4,000 in general damages and medical expenses limited to Charity Hospital and the initial treatment by Dr. Rozas prior to plaintiff’s hospitalization. In his reasons for judgment the trial court specifically declined to include in the award the expenses incurred in the hospitalizations because he concluded that these were not caused by the accident. On appeal, plaintiff contends that he is entitled to recover these special damages and an increase in general damages to compensate him for his mental anguish associated with the fear that he had cancer.

Plaintiff argues that once the hot spots were revealed by the bone scan he was entitled to find out if they were caused by the accident. He relies on Sanders v. Western Casualty & Surety Company, 337 So.2d 286 (La.App. 2nd Cir. 1976) and Loret v. Armour & Co. 32 So.2d 55 (La.App. 1st Cir. 1947) to support this argument. In both of these cases the plaintiffs underwent tests for complaints that continued to be related to the accident until the tests were made.

But in the instant case it was the discovery of the cysts in plaintiffs hip which led to the first bone scan and the evidence is uncontradicted that the cysts were not caused by the accident. Thus, the hospitalization and tests were precipitated by the discovery of the cysts and were carried out to determine if the cysts and subsequently discovered isotopes and prostate abnormality indicated that plaintiff had cancer. The tests were not performed to determine the effects of the accident.

Plaintiff also argues that his mental anguish was caused by the accident because without its occurrence the cysts would not have been discovered and the suggestion that he had cancer would not have been raised. The fallacy of this argument is in the failure to recognize that the cause in fact of plaintiff’s mental anguish was not defendant’s fault but the discovery of the cysts which was purely incidental to the examination conducted by Dr. Rozas to determine accident related problems.

Accordingly, the judgment is affirmed.

AFFIRMED.


author: BOUTALL, Judge.

text:
    Claude Albert MASON v. Helen Ringer, wife of Claude Albert MASON.
    No. 11925.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 2, 1981.

      Bettyanne L. Bussoff, New Orleans, for Helen Ringer Mason, appellant.
    Sydney J. Parlongue, New Orleans, for Claude Albert Mason, appellee.
    Before BOUTALL, SCHOTT and BARRY, JJ.
   BOUTALL, Judge.

On May 19, 1964 the plaintiff, Claude Mason, was married to the defendant Helen Ringer Mason. These parties established a matrimonial domicile in Jefferson Parish. Of this relationship two children were born. Marital relations between the two parties broke down on October 8, 1978 resulting in a physical separation from bed and board, with the plaintiff moving to Orleans Parish. Subsequently, the plaintiff filed suit against his wife in Jefferson Parish on October 13,1978 for separation based on cruel treatment. Prior to a trial on the merits as to the separation, the plaintiff filed a suit for divorce in Orleans Parish on October 22, 1979, based on the ground that the spouses had been living separate and apart continuously for one year or more. R.S. 9:301. In response to this action the defendant filed exceptions of a lack of subject matter jurisdiction, improper venue and lis pendens. Upon trial in the divorce proceeding the district court overruled the exceptions brought by the defendant, granted a divorce in favor of the plaintiff, awarded custody of the two minor children to the defendant, established visitation privileges for the plaintiff, and awarded child support to the defendant. From this judgment the defendant has appealed.

On appeal there are three basic issues presented for our consideration: 1.) Can there be separate forums for a separation proceeding and a divorce matter or is it necessary that both proceedings be tried in the same court? 2.) Did the plaintiff establish a domicile in Orleans Parish thereby permitting him the right to bring an action for divorce in the district court for that parish? 3.) Can the 1 year period of separation required for divorce under LSA-R.S. 9:301 (as amended in 1979) be applied to circumstances wherein this 1 year period began running prior to the amendment and was completed after the amendment became effective as law?

Regarding the first issue before us, the defendant contends that venue in domestic cases must be the same for all of the proceedings related thereto and further that the parties should not be permitted to switch forums. Hence, the defendant argues that Orleans Parish was not the proper venue for the divorce proceedings where the original action for separation was brought in Jefferson Parish. Under this contention, the only place where the divorce proceeding could have been filed was in Jefferson Parish.

Under LSA-C.C.P. Art. 3941 the venue for an action for a separation or divorce is the parish where either party is domiciled or the parish of the last matrimonial domicile. Moreover, it is well established in the Louisiana jurisprudence that an action for separation and a suit for divorce may be brought in different parishes provided the requirements of LSA-C.C.P. Art. 3941 are observed. Smith v. Smith, 357 So.2d 93 (La.App. 4th Cir. 1978); Call v. Call, 274 So.2d 795 (La.App. 4th Cir. 1973). The cases that appellants cites to us are not relevant to the factual and procedural issues here.

Similarly appellant argues that the consideration of the ancillary matters of custody, visitation and child support in the Orleans divorce judgment are forbidden because of the Jefferson pendente lite judgment on these matters. First we conclude this is not a case where the spouse has switched forums to defeat the judgment of another court. The spouse had a right to bring his differently-based divorce suit in Orleans Parish. The Orleans court did not attempt to decide any pendente lite ancillary matters which may have conflicted with the Jefferson pendente lite judgment. Indeed we note that only on the divorce hearing did the judge take up the ancillary matters and then only to include the provisions of the Jefferson judgment in his divorce judgment as they apparently had been formulated through at least partial agreement of the parties.

Based on the foregoing we find that the district court in Orleans Parish acted properly in overruling the various exceptions raised by the defendant and in thereby exercising jurisdiction over the divorce proceedings.

In consideration of the second issue which concerns domicile we turn to the Louisiana Civil Code and the jurisprudence interpreting its provisions for guidance. LSA-C.C. Art. 38 provides that the domicile of a citizen is the parish of his principal establishment or habitual residence. To effect a change in domicile from one parish to another requires actual residence in another parish, together with the intention of making a principal establishment there and of abandoning the former domicile. LSA-C.C. Art. 41; Temple v. Jackson, 376 So.2d 972 (La.App. 1st Cir. 1979); In re Kennedy, 357 So.2d 905 (La.App.2d Cir. 1978). This intention is proved in one of two ways: 1.) by an express declaration of an intent to change domicile before the recorder of the parishes; or 2.) by proof showing a change in circumstances. LSA-C.C. Art. 42, 43; Brown v. Brown, 378 So.2d 164 (La.App. 1st Cir. 1979). The circumstances indicating establishment of a domicile include: “where a person sleeps, takes his meals, has established his household, and surrounds himself with his family and the comforts of domestic life.” Succession of Rhea, 227 La. 214, 78 So.2d 838 (1955); Charbonnet v. Hayes, 318 So.2d 917 (La.App. 4th Cir. 1975). The law is well settled that the party who seeks to establish a change of domicile bears the burden of proving it. Temple v. Jackson, supra.

The evidence before us reveals that prior to October 8, 1978 the plaintiff and defendant had a matrimonial domicile in Jefferson Parish. On that date the plaintiff left this domicile and moved to an apartment at 1765 Coliseum Street in New Orleans. The plaintiff has resided in that residence since that time. Additionally, the plaintiff has been employed in Orleans Parish since August of 1977, receives his mail at his residence, and uses the banking services of a New Orleans bank. At trial, the plaintiff testified that he intends to reside in New Orleans permanently. In considering all of these circumstances we find that the plaintiff has carried his burden of proof in establishing a change of domicile to the parish of Orleans. Accordingly, the plaintiff did have standing within which to bring an action for divorce before the district court in New Orleans.

Regarding the final issue presented for our review, LSA-R.S. 9:301 (as amended in 1979) provides that either spouse may sue for a judgment of divorce when the spouses have been living separate and apart continuously for a period of 1 year or more. Prior to the 1979 amendment this statute required that spouses live separate and apart for a period of 2 years or more before such an action could be brought. In the matter before us, the evidence reveals that the period of continuous separation upon which the action for divorce was predicated was 1 year and 2 weeks and further that this period began running prior to the 1979 amendment to LSA-R.S. 9:301 and was completed after the amendment became effective. The defendant contends that the statute prior to the amendment is applicable and therefore, the action filed by the plaintiff is premature as the 2 year period had not yet accrued as of the time the suit was filed. Hence, defendant argues that the 1 year period in the statute as amended is not applicable.

In Lott v. Haley, 370 So.2d 521 (La.1979), the Supreme Court was faced with a similar question concerning a statute of prescription. The court cited several principles that are to be used in resolving an issue of this nature. They stated:

“[2, 3] La. Civil Code art. 8 provides that ‘[a] law can prescribe only for the future; it can have no retrospective operation, .” Likewise, La.R.S. 1:2 states that no statute is retroactive unless it is expressly so stated. According to this court’s consistent interpretation, however, the general rule of prospective application applies only to substantive laws as distinguished from merely procedural or remedial laws which will be given retroactive effect in the absence of language showing a contrary intention. Ardoin v. Hartford Acc. & Indem. Co., 360 So.2d 1331 (La.1978); General Motors Acceptance Corp. v. Anzelmo, 222 La. 1019, 64 So.2d 417 (1953). This jurisprudential rule is subject to the exception that procedural and remedial laws are not accorded retroactive effect where such retroactivity would operate unconstitutionally to disturb vested rights. Orleans Parish School Board v. Pittman Construction Co., 261 La. 665, 260 So.2d 661 (1972); Succession of Lambert, 210 La. 636, 28 So.2d 1 (1946); Shreveport Long Leaf Lumber Co. v. Wilson, 195 La. 814, 197 So. 566 (1940).

After considering the above rules of law we find that the 1 year period of LSA-R.S. 9:301 (as amended in 1979) is applicable to the circumstances before us. It is not the date of separation that is controlling but the date of fulfillment of the statutory time requirement that is controlling and gives rise to the right to sue for divorce. In this case the period of continuous separation accrued after the amendment was enacted and became effective. Thus application of the statute after the amendment is prospective and in no way can be considered retrospective or retroactive. Accordingly, we further find that the judgment of the trial court granting the divorce based on the 1 year period of continuous separation under LSA-R.S. 9:301 (as amended in 1979) was valid.

AFFIRMED.


text:
    Patricia McCarthy, wife of Neal PENDLETON, Jacqulin Ann DeLaune, wife of Gerald DeLaune, Virginia Fremaux, wife of L. C. Soileau, III, Rose Mary Fremaux, wife of Robert Schlicher, Jr. and Edward C. Fremaux v. SHELL OIL COMPANY.
    No. 11933.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 2, 1981.

      Alonzo T. Stanga, III, Metairie, for plaintiffs-appellees.
    Hulse, Nelson & Wanek, Craig R. Nelson, New Orleans, for defendant-appellant.
    Before BOUTALL, BARRY and KLEES, JJ.
   BARRY, Judge.

Defendant appeals from a judgment ordering its eviction resulting from an alleged breach of contractual obligations as a lessee.

This scenario began in 1954 when Luches-ter McCarthy purchased property in Jefferson Parish and subsequently filed a counter letter providing that Edna C. Neely was a co-owner. In 1957 McCarthy leased the property to Shell Oil Company for fifteen years at $375.00 per month with a five year option at $600.00 monthly. Shell then constructed a service station and, in 1969, contacted McCarthy seeking an extension of the lease. On June 13, 1969 a new lease was negotiated to become effective August 1,1969 at a rental of $600.00 per month and during the following four years Shell spent approximately $80,000.00 to renovate the property. In 1979 Shell demolished the service station and constructed a self-service facility; on adjacent land, previously leased from another owner in 1958, Shell built a four-bay service station in conjunction with its operation.

Plaintiffs filed a rule to evict Shell alleging that under terms of the 1957 lease they became owners of the service station when that lease was terminated in 1969 and demolition of their station constituted a breach of the lease. Shell filed dilatory and peremptory exceptions, the matter received a full hearing, and the district court orally stated that “... by a preponderance of the evidence the lease was in fact breached”. Shell filed this appeal urging: that its dilatory exception to use of a summary proceeding for eviction was valid; that dismissal of its peremptory exception of non-joinder of an indispensable party, Shell’s sub-lessee, was error; that the trial court erred in determining Shell breached its lease and in holding that plaintiffs had a right of reversion; that the trial court committed error on rulings concerning admissibility of evidence; and that Shell did not receive a fair trial because of the lower court’s conduct during trial.

Ownership of the service station building at the time of its demolition should be determined first. Under the 1957 lease, Article 6, Shell had the right to and did construct an automobile service station at a cost of $25,000.00 and Article 14 of the lease provides in part:

“All buildings and improvements constructed, installed or placed on the premises by Shell, at any time during the term of this lease or any extension thereof or any tendency thereafter, shall become lessor’s property at the termination of this lease or any tenancy thereafter.”

It should be noted Article 14 was a specially typewritten clause used in lieu of a standard clause which provided that improvements on the leased property would be owned by the lessee at the end of the lease.

Again, in the 1969 lease the following standard language was stricken:

“All buildings, improvements, equipment, and other property constructed, installed or placed on the premises by Shell or acquired by Shell, at any time during the continuance of this or any previous lease or any tenancy thereafter; shall be and remain Shell’s property, and Shell shall have the right to remove any or all of the same from the premises at any time during, and within sixty (60) days after any termination of this lease or any tenancy thereafter.”

Had this provision remained a part of the 1969 lease, Shell could have reasonably argued that it retained ownership of the original service station and had the right to remove it during the term of the 1969 lease. However, the provision was lined out and initialed by the parties with the notation “see rider attached” which provides:

“All buildings and improvements constructed, installed or placed on the premises by Shell, at any time during the term of this lease or any extension thereof or any tenancy thereafter, shall become lessor’s property at the termination of this lease or any tenancy thereafter. All equipment or other property installed or placed on the premises by Shell or acquired by Shell, at any time during the term of this or any previous lease or any extension thereof or any tenancy thereafter, shall be and remain Shell’s property, and Shell shall have the right to remove any or all of the same from the premises, at any time during, and within sixty (60) days after any termination of, this lease or any tenancy thereafter.”

This rider to the 1969 lease refers to “buildings and improvements” constructed during the term of the 1969 lease, and makes no reference to buildings constructed during the 1957 lease. We also note that the 1969 lease distinguishes between “buildings and improvements” and “equipment and other property”, the former belonging to the lessors and the latter belonging to the lessee upon termination of the lease.

After the parties negotiated the new lease on June 13,1969, for some reason they signed an agreement on July 30, 1969 to terminate the 1957 lease effective July 31, 1969, one day prior to commencement of the re-negotiated lease on August 1,1969. The termination agreement provided that the parties:

“Agree that the lease dated June 19, 1957 ... shall be and is hereby terminated, effective as of July 31, 1969; and release each other from all claims which either now has against the other under or by virtue of the lease, as amended, supplemented or extended, reserving, however, to Shell its rights thereunder to remove its property from the premises. ..”.

Shell argues that this provision released both parties from any cause of action and there is no basis for this lawsuit. However, when the termination agreement was executed in 1969 the service station building had not been demolished and this cause of action had not yet accrued. The last portion, providing for Shell to remove its property from the premises, refers to “equipment or other property”. The provision “or any tenancy thereafter” is an alternative period to determine ownership of improvements, but is inapplicable if the lease is terminated.

Our courts have consistently enforced lease agreements providing that improvements placed on leased premises would become the property of the landowner on termination of the lease. Collette v. Blanchard, 348 So.2d 722 (La.App. 1st Cir. 1977); Salem v. Haggart, 189 So.2d 283 (La.App. 3rd Cir. 1966). Clearly, the 1957 lease provided and we conclude that any building constructed on the property during the lease became the lessors’ property when the lease was terminated in 1969.

The lessors urge, in the alternative, that the second (1969) lease constituted a novation between the parties; however, since the original lease was effectively terminated by the parties in writing there is no reason to consider a novation.

The next question is whether demolition of lessors’ building was sufficient to rescind the lease. Article 5 of the 1969 lease reads:

“USE OF PREMISES. Shell shall have the rights, at Shell’s expense: to enter the premises, at any time after the date of this Lease, for the purpose of making investigations and surveys; to use the premises for any lawful purpose; to construct and install on the premises, and paint in colors of Shell’s selection, an automobile service station, and any additional buildings, improvements and equipment (including advertising signs and billboards) that Shell may desire; and to make any alterations that Shell may desire in the premises and buildings, improvements and equipment at any time located thereon.”

Plaintiffs maintain Article 5 only gives Shell the right to “construct and install on the premises ... an automobile service station ... and to make any alterations that Shell may desire in the premises and the buildings ... ”, but to read “alteration of premises and buildings” to mean “destruction of premises and buildings” would be an unwarranted interpretation of the clause. Plaintiffs cite LSA-C.C. Articles 2710 and 2729 as authority that Shell had an affirmative duty to preserve and protect the lessors’ building and land and to use the premises as a good administrator.

In its brief Shell argues it had the right “to do anything it desired with the building” and contends demolition of the building did not breach the lease because the building was in disrepair and worthless to plaintiffs; further, the improvements that replaced the building constituted a more valuable asset.

We feel a lessee, as a prudent administrator, does not have the unrestrained right to determine unilaterally and without lessors’ consent that a building on the leased premises should be demolished. Admittedly, the original service station was twenty years old, but in 1970 Shell spent $63,000 on improvements and during the following three years expended another $16,000. As a practical matter, it appears Shell wanted to expand this lucrative location and did so by utilizing its adjacent lease. Nowhere does the lease give Shell the right “to do anything it desired” and demolition of the service station was to the detriment of these lessors and constituted a breach of the lease.

We are not concerned with lessors’ “right of reversion” as stated by the lower court. The service station was not built or owned by lessors or their ancestors in title and it would be improper to say that this building would “revert” to lessors. Lessors’ claim of ownership comes from mutual agreement that termination of the 1957 lease resulted in a transfer of title and is part of the original consideration which occurred during negotiation and execution of the 1957 lease.

In support of its peremptory exception of non-joinder of an indispensable party, its sub-lessee, Shell relies on C.C.P. Article 641 which provides:

“Indispensable parties to an action are those whose interests in the subject matter are so interrelated, and would be so directly affected by the judgment, that a complete and equitable adjudication of the controversy cannot be made unless they are joined in the action.
No adjudication of an action can be made unless all indispensable parties are joined therein.”

Shell had the unrestricted right to sub-lease without first obtaining permission from the lessors, and alleges that it did execute a sub-lease, but the lease is not part of the record. Plaintiffs were not aware Shell had sub-leased the property, and without privity of contract, a sub-lessee is not an indispensable party to an eviction proceeding. See Miles v. Kilgore, 191 So. 556 (La.App. 2nd Cir. 1939) at pp. 559:

“All persons are presumed to know the law. Whether they do in reality know it or not is immaterial as its effects are visited upon all alike. One who subleases property is held to know what the penalty will be if the lessee breaches his contract of lease by not paying his rent. The foundation giving way carries with it the superstructure. This being true, a subtenant is without just grounds of complaint when he is forced to give up property, the subject of his lease, through the failure of the lessee to discharge his obligations to the lessor. The sub-tenant’s recourse, if aggrieved, is against his own lessor. Audubon Hotel Co. v. Braunning, 120 La. 1089, 46 So. 33, 124 Am.St.Rep. 456.
Strange as it may seem, there appears to be no precedent for our holding herein. We have searched diligently for one without success. The absence of a precedent construing laws so well known and so often resorted to, in the light of facts like or similar to those in this case, should argue forcefully in favor of the thought that there is near unanimity of opinion as regards the meaning and intendment of such laws.
We are clear in the opinion that the law governing ejectment proceedings by landlords does not contemplate nor require that sub-tenants shall be made parties thereto as a condition precedent to the right to eject them as a means of restoring full possession of the leased premises to the lessor. If this were not true, it is easy to conceive of a case, involving a large hotel or apartment house, wherein the lessor would be subjected to interminable delays and a multitude of law-suits before he could regain possession of his own property.”

We hold there is no requirement for a lessor to join a sub-lessee in an eviction proceeding against the lessee where there is no privity between the lessor and sub-lessee. The trial court’s dismissal of Shell’s exception of non-joinder of an indispensable party was appropriate.

Shell strongly urges that it was improper for the trial court to allow the eviction rule to be heard in a summary manner. We disagree.

C.C.P. Article 2592(3) states:

“Summary proceedings may be used for trial or disposition of the following matters only:
(3) An issue which may be raised properly by an exception, contradictory motion, or rule to show cause.”

C.C.P. Article 4731 provides:

“If the lessee or occupant fails to comply with the notice required to vacate required under this Title, the lessor or owner, or agent thereof, may cause the lessee or occupant to be cited summarily" by a court of competent jurisdiction to show cause why he should not be ordered to deliver possession of the premises to the lessor or owner.”

A case in point is Shell Oil Company v. Moore, 257 So.2d 177 (La.App. 4th Cir. 1972) wherein Judge (now Justice) Lemmon stated at p. 178:

“We conclude that Moore is in possession of the subject premises by virtue of a contract of lease and thereby occupies the status of a lessor or tenant. C.C. art 2677. When the lessee’s right of occupancy has ceased because of the termination of the lease for any reason, the lessor is afforded the use of summary proceedings to obtain possession of the premises. See C.C.P. art. 4701 et seq. In these summary proceedings the lessor must prove that the lease was validly terminated, and the lessee may assert any available defenses.
It would be unreasonable to adopt the argument advanced in this case that Shell should first prove its right to terminate the agreement in an ordinary proceedings, for this would compel Shell to use ordinary proceedings to obtain entitlement to eviction by summary proceedings.
In this particular case Moore is not being deprived of any defenses, but is simply required to assert these defenses at an advanced trial date.”

Shell further contends that summary eviction is not appropriate to try disputed title to property but is designed for situations where the possessor has no semblance of claim to title or possession. Foreman v. Luquette, 344 So.2d 1111 (La.App. 3rd Cir. 1977). There is no title dispute here and lessee’s right to occupancy ceased when it demolished lessors’ property. Our holding in Shell Oil Company v. Moore, supra, supports plaintiffs’ use of summary proceedings under these facts.

Shell complains that hearsay evidence (a statement and a letter) was improperly admitted in this bench trial. This evidence, even if excluded, would not change the above determinations and is not reversible error.

We have reviewed the entire record in order to evaluate Shell’s claim that it did not receive a fair trial. Verbal exchanges did occur between the trial judge and counsel, but we find no evidence to conclude or even indicate that the trial judge was biased or impartial.

Shell strenuously complains that an adverse judgment would cause total abandonment of its $281,000.00 investment, including the “new” service station on the adjacent property, and that it could not have utilized this property any differently from a marketing standpoint. Both points may be financially valid as a practical matter, but have no foundation to circumvent the legal and factual determinations expressed above.

Accordingly, the judgment of the District Court is affirmed, appellant to pay all costs of these proceedings.

AFFIRMED.

      . The present owners/lessors/plaintiffs/appel-lees are heirs of the original co-owners.

      . C.C. Article 2710. “The lessee is bound: 1. To enjoy the thing leased as a good administrator, according to the use for which it was intended by the lease. 2. To pay the rent at the terms agreed on.”

      . C.C. Article 2729. “The neglect of the lessor or lessee to fulfill his engagements, may also give cause for a dissolution of the lease, in the manner expressed concerning contracts in general, except that the judge can not order any delay of the dissolution.”

      . Shell claims it spent $157,000 for new construction on plaintiffs’ property. Assuming the amount is correct, the breakdown shows $48,-000 for land improvements, $6,000 for a cashier’s booth, a $29,000 canopy, and the balance of $74,000 in equipment and fixtures which could qualify for removal at any time.

      . This property forms one corner of Veterans Memorial Boulevard and Causeway Boulevard, one of the busiest intersections in Jefferson Parish.


author: KLIEBERT, Judge.

text:
    The HERTZ CORPORATION, TRUCK LEASING DIVISION v. BOH BROS. CONSTRUCTION CO., INC., Fimis Transfer, Inc. and Hanover Insurance Company.
    No. 11936.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 2, 1981.

      Turner & Young, Emile L. Turner, Jr., A Professional Law Corp., New Orleans, for plaintiff-appellee.
    Bienvenu, Foster, Ryan & O’Bannon, John W. Waters, Jr., New Orleans, for defendant-appellant.
    Before REDMANN, KLIEBERT and KLEES, JJ.
   KLIEBERT, Judge.

On January 17, 1978, a tractor-trailer, owned by the Hertz Corporation, Truck Leasing Division, plaintiff-appellee (hereafter Hertz), was being driven by Perry Wilkerson on Interstate 10 heading west towards New Orleans. Wilkerson was an employee of Fimis Transfer, who was originally a defendant herein but was subsequently dismissed by Hertz. At approximately 3:00 o’clock P.M., just past the twin bridge over Lake Pontchartrain, the truck, while traveling in the left lane, hit a “wet spot” on the road, which spot was covering all three west-bound lanes and which also covered a bump or “knot” in the road. After hitting the wet spot and the bump, Wilkerson lost control of the tractor-trailer and struck the curbing of the left-hand neutral ground, causing the tractor-trailer to flip onto its left side and skid.

Prior to the accident, Boh Bros. Construction Company, Inc., defendant-appellant (hereafter Boh Bros.) had been engaged in construction work at the site. Boh Bros, was replacing the shoulder of the neutral ground (left hand) side of the westbound lane, and on the day of the accident, was pumping muddy water (which had accumulated due to rains) from the point of construction to another area of the neutral ground. However, the area the water was pumped to was overflowing and consequently running across the westbound lanes to the outside (righthand) shoulder of the highway.

Hertz sued Boh Bros., contending Boh Bros.’ actions were the cause of the accident; hence, Boh Bros, was liable for damages to Hertz’s truck. After trial on the merits, judgment was rendered in Hertz’s favor in the amount of $9,394.16. Boh Bros, appeals.

On appeal, Boh Bros, relies on two assignments of error. First, Boh Bros, contends the trial court erred in finding the accident of January 18, 1978 was due to the fault of Boh Bros. Instead, Boh Bros, contends the negligence of Perry Wilkerson, the driver, was the sole proximate cause of the accident.

Wilkerson testified that when he saw the signs saying “Under Construction”, he slowed down from about 58 miles per hour to 50 miles per hour. He then came upon a slick area composed of water and sand. As soon as he ran over the area, he hit a knot in the road (which knot was covered by the sand) which caused the tractor to bounce, causing him to lose control of the rig. Wilkerson recalled the slick covering two lanes of the roadway. He did not see the slick until he was approximately ten feet from it, nor were there any flagman or other warnings to warn oncoming motorists of the danger. Wilkerson witnessed another accident approximately thirty minutes after his when an automobile hit the same slick area and crashed.

Ross Latino was a grade foreman for Boh Bros, at the site of the accident. He admitted Boh Bros, had pumped water across the highway from approximately 9:00 A.M.— 2:30 P.M. on the day of the accident and that some sand was mixed with the water. Latino further testified that although the pumping operations had terminated approximately 20 minutes before the accident, no one washed or cleaned the residue from the surface. Latino testified to there being three signs warning of the construction— one at 1500' prior to the site, one at 1000' prior to the site, and one at 500' prior to the site. Additionally, there was a 10' barricade (referred to as a wing barricade) at the beginning of the construction zone. Latino further stated there were no puddles or standing water on the highway at the time of the accident, but there was sand on the highway.

Edwin Barrios, inspector for the Louisiana Department of Highways, corroborated Latino’s testimony regarding the signs. Barrios’ daily report, admitted into evidence, shows the weather to have been cold and cloudy with a drizzle. While Barrios did not witness any water or sand being pumped onto the highway, he stated that such actions are generally prohibited because it is considered an unsafe practice.

Michael Nuessley, the investigating officer, did not recall either a wet spot or knot or bump in the road, nor did he remember looking for one. His accident report described the road surface as being “wet and muddy,” and it further reflected that Wilkerson told him that he (Wilkerson) had been riding in the center lane when Wilkerson hit the slick area. Nuessley admitted he had no independent recollection of the accident and was testifying strictly from his accident report.

Blancher v. Samuels, 354 So.2d 213 (La. App. 4th Cir. 1977), writs denied 355 So.2d 257, 263, accepted the following summation of law in cases such as these (at 218-219):

“A contractor is under a duty to give reasonable notice to the traveling public in a highway under construction or undergoing repairs and open to public use of any unusual or hazardous condition of the road created by said construction or repair. However, the mere breach or commission of an act of negligence does not alone render the contractor liable for damages resulting from an accident on such a highway.
The act of omission or act of commission must be a proximate cause of the accident. Where a motorist involved in an accident is already aware that work is in progress in the area, aware of the speed limit therein, and already has knowledge of any notice or warning which is a contractor’s duty to give, any insufficiency of such warning is not considered to be a proximate cause of the accident. However, if a specific hazard exists now known to and a contractor has knowledge therefor, the contractor has a duty to give reasonable notice to the traveling public of the specific hazard in question. Failure to give such a reasonable notice may constitute proximate cause.” (emphasis added)

In the instant case, there were no signs or other warnings indicating that any type muddy water, mud, sand or other materials were on the road. This fact, coupled with Boh Bros.’ failure to clean the highways and to keep the same clear for safe passage, constitutes negligence on Boh Bros.’ part, which negligence the trial court found to be the proximate cause of the accident. We find no error in this finding by the trial court; this assignment of error lacks merit.

Simply stated, the second assignment of error is that the trial court abused its discretion in its award of damages to Hertz. Appellants contend the property damage award of $9,354.16 should only have been $5,289.04, which was the lowest estimate for repair which was submitted to Hertz.

Anthony Palermo, comptroller for Hertz, testified the truck was repaired by Craft Motor Company, Inc. (hereafter Craft), who usually does Hertz’s repair work. It was stipulated that repairs totalled $10,387.56. On cross-examination, Palermo admitted Craft does not perform all of Hertz’s repair work, but that International Harvester had done some in the past and their work had been satisfactory. Palermo further admitted Hertz had received an estimate from Independent Appraisal of $5,289.04 and that Craft’s original appraisal was for $8,351.52.

Robert Fine, an appraiser, testified his appraisal for the damages was $9,354.16. Fine explained the disparity between his bid and the bid submitted by Independent Appraisal was because of differences in parts prices and number of hours of labor estimated for repairs. Fine admitted he obtained his parts prices from Craft, not from International Harvester.

Jack Craft, the owner of Craft Motor Company, Inc., testified that he computed the price for parts by taking his cost and marking the price up 25-30%. Craft testified that he accepted the appraisal of Fine, completed the repairs, then billed Hertz an additional $933.40 for hidden damages.

Ed Badinger, an appraiser, estimated damages at $5,289.04. Badinger used the same crash manual that Fine used in making his estimate. He admitted two appraisers could see damages differently, and refused to say that Fine’s appraisal was inflated or erroneous. Badinger further admitted his prices for parts were based on fleet prices, which were available to Hertz but not to Craft. Although he testified he had used a manual to determine the amount of labor, his estimate did not have an itemization of the labor. He corroborated Fine’s testimony that the major differences between his and Fine’s appraisals were due from the difference in pricing the parts, the labor cost ($18.50 as opposed to $15.00), and the estimate of the length of time needed to perform the repairs.

Russell Alongi, assistant service manager for International Harvester’s body department, stated he had informed Hertz he would perform the necessary repairs for Badinger’s estimate plus unseen damages. Under cross-examination, he admitted he didn’t examine the vehicle carefully, but relied mainly on Badinger’s estimate of damages.

Louis A. Schwartz, Jr., owner of Louis Schwartz International Trucks, Inc., detailed the price schedule available for International Harvester parts. The schedule has four levels; first, if the buyer owned one to four trucks, he paid list price; second, if the buyer owned between five and twenty trucks, he would pay “C.T.” price, which is 30-35% over cost (which is what Craft paid); third, if the buyer had over thirty trucks, he would pay “clarified C.T.”, or “contract” price, which is 25% over cost; fourth, for special accounts (such as Hertz), fleet prices were available at cost plus 10% if purchased over the counter or at cost only if a stock order was submitted.

Boh Bros, argues that Hertz was under a duty to minimize its damages by either allowing International Harvester to repair the vehicle (where parts’ cost would have been cost plus 10%) or by Hertz ordering the parts themselves by submitting a stock order to International Harvester and then supplying the parts to Craft (the parts’ price then would have been “at cost”). In short, Boh Bros, argues that Hertz failed to mitigate its damages.

Darnell v. Taylor, 236 So.2d 57 (La.App. 3rd Cir. 1970) discussed mitigation of damages as follows (at 61):

“The doctrine of mitigation of damages applies in this state ... This doctrine, sometimes called the doctrine of unavoidable consequences, imposes on the injured person a duty to exercise reasonable diligence and ordinary care in attempting to minimize his damages after the injury has been inflicted. The care and diligence required of him is the same as that which would be used by a man of ordinary prudence under like circumstances. He need not make extraordinary efforts or do what is unreasonable or impracticable in his efforts to minimize the damages, but his efforts to minimize them must be reasonable and according to the rules of common sense, good faith and fair dealing.” (citations omitted; emphasis added)

It would have been impractical for Hertz to buy the parts, bring them to Craft and expect Craft to perform the repairs without earning any profit on the parts. Nor was it unreasonable for Hertz to have Craft repair the truck, since Craft was the usual repairmen for Hertz trucks, had a good reputation for performing and was among the largest, if not the largest, truck repairmen in the City. In addition, Hertz paid the total cost of repairing the truck ($10,-287.56), which was some $933.40 above the judgment awarded by the trial court. This $10,287.56 represents an actual “out-of-pocket” expenditure by Hertz long before the trial date. In addition, it cannot be said that Hertz was certain to collect the full amount of damages from Boh Bros, when it made the decision to allow Craft to perform the repairs. It was not alleged nor proven Fine’s appraisal was improper, unreasonable and not according to prevailing trade practices. (In fact, Ed Badinger, the appraiser for Independent Appraisal, refused to say that Fine’s appraisal was inflated or in error.)

In order to lower an award, we must determine that the award is above the highest point which is reasonably within the trial court’s discretion. Beal v. New Orleans Public Service, Inc., 365 So.2d 1118 (La.App. 4th Cir. 1978).

Given the foregoing, we find no such abuse of discretion in the amount awarded by the trial court here. The award being within the reasonable limits of the trial court’s discretion, the judgment is affirmed, costs to be paid by the appellant.

AFFIRMED.


author: REDMANN, Judge.

text:
    GENERAL MOTORS ACCEPTANCE CORPORATION v. Allen P. SMITH.
    No. 11945.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 2, 1981.

      Tucker & Schonekas, Arthur S. Mann, III, New Orleans, for plaintiff-appellee.
    John L. Dorsey, New Orleans, for defendant-appellant.
    Before REDMANN, SCHOTT and KLIE-BERT, JJ.
   REDMANN, Judge.

Louisiana’s statutory “public policy,” that “can not, and shall not be waived by a debtor,” La.R.S. 13:4107, is that a debt “shall stand fully satisfied and discharged insofar as it constitutes a personal obligation of the debtor,” R.S. 13:4106, whenever the creditor sells the debtor’s property other than by judicial sale with appraisement.

The question on this appeal is whether that policy, which expressly prohibits a judgment against the debtor for the balance of the debt allegedly remaining after crediting some amount as proceeds of the unappraised sale, also prohibits such a deficiency judgment against the debtor’s surety, notwithstanding the surety’s contractual stipulation that his liability “shall not be affected ... by the discharge or release of the [principal debtor] ..., by operation of law or otherwise.” We answer that it does and we therefore reverse a judgment for the creditor against the surety.

The statute as originally enacted in 1934 provided for full discharge of the debt by unappraised sale, and later amendments indicate no legislative intent to depart from that scheme except to preserve in rem liability as to other properly included in the pledge or mortgage. The logic of the full discharge is simple: because sales without appraisal often produce an unfair price (often with the creditor as the buyer), that price should not be treated as the equivalent of a price produced by a sale with appraisal, which must bring two-thirds of the appraised value or be readvertised; see Louisiana Nat. Bank v. Heroman, La.App. 1 Cir. 1973, 280 So.2d 362, writ refused 281 So.2d 755. The unappraised sale thus having no price providing an acceptable measure for deduction from the debt, the legislature has taken the position that an unap-praised sale will be treated as if its proceeds were sufficient to pay off the debt entirely, save, since, the 1952 amendment, the in rem liability of other pledged or mortgaged property.

The public policy of R.S. 13:4106 is so strong and unwaivable that it prevents even a judgment by default for the “deficiency” in the absence of allegation and proof of sale with appraisal, Gumina v. Dupas, La.App. 4 Cir. 1964, 159 So.2d 377..

That public policy ordinarily discharges persons secondarily liable because the discharge of the person primarily liable releases one in the position of a surety, Simmons v. Clark, La.App. 1 Cir. 1953, 64 So.2d 520, or an indorser, Southland Inv. Co. v. Motor Sales Co., 1941, 198 La. 1028, 5 So.2d 324, unless the secondary obligor consented to the sale without appraisement, Southland above; Farmerville Bank v. Scheen, La.App. 2 Cir. 1954, 76 So.2d 581; Commercial Cr. Eq. Corp. v. Larry Parrott of Gueydan, La.App. 3 Cir. 1968, 212 So.2d 860, writ refused 214 So.2d 719 (see also Exchange Nat. Bank v. Spalitta, La.App. 4 Cir. 1974, 295 So.2d 18, rev’d on other grounds, La.1975, 321 So.2d 338).

Plaintiff argues in our case, however, that the surety’s contractual agreement was that his liability “shall not be affected” by discharge of the debtor and that therefore, as in Louisiana Bank & T. Co., Crowley v. Boutte, La.1975, 309 So.2d 274, the ordinary rule of law that the discharge of the debtor discharges the sureties, C.C. 2205, does not apply.

Our surety, unlike the sureties in Boutte, is not bound in solido with the debtor, but we will accept plaintiff’s argument that Boutte might imply enforceability of his agreement that his liability is to be unaffected by discharge of the debtor. Yet plaintiff’s argument concedes that Boutte, 309 So.2d at 278, n. 7, preserves the surety’s personal right to reimbursement from the debtor (apart from simple subrogation to the creditor’s now-extinguished right). The consequence would thus be that the principal debtor would be liable to the surety if the creditor obtains a judgment against the surety.

That consequence is inconsistent with R.S. 13:4106 and -7. The debtor cannot himself waive the public policy of § 4106, and a surety cannot be allowed to waive it for the debtor, and the creditor cannot be allowed to defeat that public policy by the simple device of obliging the debtor to provide a surety who can then collect from the debtor. The provision of the surety’s contract making his liability unaffected by the discharge of the debtor is inconsistent with the unwaivable public policy of R.S. 13:4106 and is therefore unenforceable. We therefore reverse the judgment appealed from.

Finally we note that C.I.T. Corp. v. Rosenstock, La.App. 4 Cir. 1967, 205 So.2d 81, involved an agreement similar to ours. The opinion does not say whether or not the judicial sale of the mortgaged property was with appraisement, but it relied on Wilson v. Brian, La.App. 2 Cir. 1955, 81 So.2d 142, and Simmons, above, in each of which sale was without appraisement. Rosenstock reasoned that the mere sale of mortgaged property by the creditor released the surety under C.C. 3061. C.C. 3061, however, has long been held to discharge a surety only to the extent he or she is injured by the creditor’s act; Provan v. Percy, 1856, 11 La.Ann. 179; Pontchartrain Apts. v. Maryland Cas. Co., 1930, 171 La. 67, 129 So. 671. We therefore prefer to rely on R.S. 13:4106 and -7 as the basis of our judgment.

Reversed; suit dismissed at plaintiff’s cost.

      . R.S. 13:4106. If a mortgagee or other creditor takes advantage of a waiver of appraisement of his property, movable, immovable, or both, by a debtor, and the proceeds of the judicial sale thereof are insufficient to satisfy the debt for which the property was sold, the debt nevertheless shall stand fully satisfied and discharged insofar as it constitutes a personal obligation of the debtor. The mortgagee or other creditor shall not have a right thereafter to proceed against the debtor or any of his other property for such deficiency, except as provided in the next paragraph.
      If a mortgagee or pledge affects two or more properties, movable, immovable, or both, the judicial sale of any property so affected without appraisement shall not prevent the enforcement of the mortgage or pledge in rem against any other property affected thereby.
      R.S. 13:4107. R.S. 13:4106 declares a public policy and the provisions thereof can not, and shall not be waived by a debtor, but it shall only apply to mortgages, contracts, debts or other obligations made, or arising on or after August 1, 1934.

      .At the time of its enactment in 1934 and incorporation into the Revised Statutes of 1950, the statute did not merely create a procedural bar: it decreed the debt “fully satisfied and discharged, and such ... creditor shall not thereafter have the right to proceed against the debtor or any other of his property for such deficiency, in any manner whatsoever.” La. Acts 1952 No. 20 amended the statute to qualify “fully satisfied and discharged” by “insofar as said debt constitutes a personal obligation against the debtor or debtors” and also limited the proscription against proceeding for the deficiency by adding a proviso that, notwithstanding a sale without appraisement, the creditor could proceed in rem against other property included in the mortgage or pledge.
      The purpose of the 1952 amendment was to allow execution on two or more things pledged or mortgaged to secure a debt, and for that purpose it was appropriate to describe the discharge of the debt as a discharge of the “personal obligation against the debtor.” In the light of that purpose of the amendment, however, there is no reason to infer from the cited words an intent to limit the discharge of the debt to the principal debtor alone and to deny discharge to sureties or other persons secondarily liable.
      (A later amendment by Acts 1960 No. 32 merely edited the 1952 text into two paragraphs, without changing its substance.)

      . The persons treated as sureties were in fact the comakers of a collateral mortgage note (secured by mortgage on their own property), and the collateral mortgage note was pledged to secure the principal debtor’s note (also secured by mortgage on his own property, which was sold without appraisement).

      . Query: if he were, would he not be directly discharged as a codebtor? But the agreement does not make him liable in solido; its full text reads:
      In consideration of the making of the within contract by the seller therein, the undersigned does hereby guarantee to said seller, or any assignee of said contract, payment of all deferred payments as specified therein and covenants in default of payment of any instalment or performance of any requirement thereof by buyer to pay full amount remaining unpaid upon demand. The liability of the undersigned shall not be affected by any settlement, extensions, variation of terms of the within contract effected with, or by the discharge or release of the obligation of the buyer or any other person interested, by operation of law or otherwise. Notice of acceptance of this guaranty, notices of nonpayment and non-performance, notices of amount of indebtedness outstanding at any time, protests, demands, and prosecution of collection, foreclosure and possessory remedies, and the right to remove any legal action from the court originally acquiring jurisdiction, are hereby waived.

      . The indorser “consent[s] that the holders may, ... without releasing the liability of [the indorser], ... release, by operation of law or otherwise, any rights against ... the maker _” 205 So.2d at 82.

      . The surety is discharged when by the act of the creditor, the subrogation to his rights, mortgages and privileges can no longer be operated in favor of the surety.


text:
    L. J. DUROUSSEAU v. LOUISIANA STATE RACING COMMISSION.
    No. 11961.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 2, 1981.

      William J. Guste, Jr., Atty. Gen., John E. Jackson, Jr., Asst. Atty. Gen., New Orleans, for Louisiana State Racing Commission.
    Michael F. Escudier, Arabi, for plaintiff-appellee.
    Before BOUTALL, SCHOTT and BARRY, JJ.
   SCHOTT, Judge.

The Louisiana State Racing Commission has appealed from the judgment in favor of plaintiff, L. J. Durousseau, declaring as invalid a decision of the commission upholding the one year suspension of Durousseau as a jockey. The issue in this court is whether the trial court properly invalidated the commission’s decision on the basis that the commission violated LSA R.S. 4:154(F) by not issuing a written decision within 48 hours after Durousseau’s appeal to the commission was heard.

After the tenth race on March 7, 1979, Durousseau was approached by two security personnel demanding that he show them what was in his left hand. Durousseau refused to submit to this search. On the following day a hearing was conducted by the stewards, after which they issued ruling No. 270, suspending Durousseau as a jockey for one year because of his refusal to submit to the search. Durousseau appealed this ruling to the commission pursuant to R.S. 4:154 and the commission held a hearing on March 29. At the conclusion of the hearing a motion was adopted by the commission upholding ruling No. 270. On April 27 a petition for review of the commission’s decision was filed in the district court.

The petition for review contains allegations and arguments that the commission acted arbitrarily, capriciously and unreasonably, it exceeded its statutory authority by promulgating rules of racing without compliance with R.S. 49:958, it abused its discretion, and the rule under which Durous-seau was disciplined for refusing to submit to a search is unconstitutional by virtue of the federal and state constitutions.

Immediately upon the filing of Durous-seau’s petition the trial court stayed the commission’s decision and the stewards’ ruling suspending Durousseau, pending his appeal for judicial review, and on December 3, 1979, the court rendered its judgment invalidating the decision of the commission with the following reasons:

“However, the hearing was held on March 29,1979, but the findings and decision on final appeal was not rendered until May 4, 1979, some seven days after the petition for review of the administrative ruling was filed in Civil District Court from the oral ruling of the commission.
LSA-R.S. 4:154(F) provides that the Commission must render a decision within forty-eight (48) hours following the conclusion of the appeal hearing. Although there was an oral motion at the conclusion of the hearing upholding the ruling of the stewards, the Court interprets the requirements of R.S. 4:154(F) as requiring a written decision within forty-eight (48) hours.
Accordingly, since the statutory mandate has not been followed there is no valid decree of the Louisiana State Racing Commission that suspends the petitioner from performing his duties as a jockey and enjoying all privileges of racing tracks under the jurisdiction of the Louisiana State Racing Commission.”

The trial court did not address the issues raised by Durousseau in his petition for judicial review and these issues were not raised in his brief to this court. The commission’s brief is likewise limited to the issue discussed in the trial court’s reasons for judgment. Therefore, we do not consider that the original issues raised by Du-rousseau are before us on appeal and we confine our consideration to the reasons for judgment assigned by the trial judge.

R.S. 4:154 provides in part as follows:

“A. Except as otherwise provided by this Section, the commission’s hearing, practice and procedure and rule making procedure are as provided in Title 49, Chapter 13, administrative procedure act, R.S. 49:951, et seq.”
“F. The commission must grant a hearing within ten days of the receipt of this appeal, and must render a decision within forty-eight hours following the conclusion of the appeal hearing. Any continuance of a hearing must be reasonable in duration and for just cause.

R.S. 4:154(F) standing alone does not require that the commission render a written decision as the trial judge found to be necessary. However, Durousseau argues and presumably the trial court agreed that this section must be read in conjunction with pertinent sections of the Administrative Procedure Act of which R.S. 49:958 provides as follows:

“A final decision or order adverse to a party in an adjudication proceeding shall be in writing or stated in the record. A final decision shall include findings of fact and conclusions of law. Findings of fact if set forth in statutory language, shall be accompanied by a concise and explicit statement of the underlying facts supporting the findings.”

However, neither does this statute require the decision be in writing, but it affords an option to the agency to state its decision in the records. Thus, the commission complied with the statute.

The record shows that the hearing before the commission began with the following statement by the attorney for the commission:

“Mr. Chairman, Members of the Commission, this involves Fair Grounds Ruling Number 270, dated March the 8th, 1979. After the Tenth Race on March the 7th, 1979, Jockey Durousseau refused to be subjected to search of his person. And, as a result thereof, he was suspended by the stewards under the ruling, and the matter referred to the Louisiana State Racing Commission.”

The first witness called by the commission was B. B. Rayburn, Jr., State Steward at the Fairgrounds Race Track. He testified that he was one of the stewards who issued Ruling No. 270. He read to the commission the report of the two security officers made on March 7 and he gave the commission a summary of the testimony given by Durousseau and the two security officers at the hearing before the stewards on March 8. Rayburn testified to the commission that the ruling of the stewards was as follows:

“Ruling Number 270, dated 3/8/79, Jockey L. J. Durousseau is suspended for refusing to be searched after the Tenth Race on 3/7/79. His case is referred to the Louisiana State Racing Commission for any further action they deem necessary. During suspension, he is denied the privileges to the grounds of all racetracks under the supervision of the Louisiana State Racing Commission. Violation of Rule LAC 11-6-53, 53.25.”

At the conclusion of the hearing motion was made, seconded and adopted by the commission upholding the ruling of the stewards.

The motion to uphold the ruling incorporated that ruling by reference and the ruling itself contains findings of fact and conclusions of law, such as to be in compliance with R.S. 49:958.

Durousseau makes much of the fact that after he filed his petition for judicial review on April 27,1979, the commission on May 4, 1979, issued a document entitled Findings and Decision on Final Appeal. Durousseau contends that this was a belated attempt on the part of the commission to comply with both R.S. 4:154(F) and R.S. 49:958 by rendering a written decision with findings of fact and conclusions of law within 48 hours following the conclusion of the appeal hearing. But in our view the commission had already complied with the law and the subsequent document of May 4 was not required.

We also take note that R.S. 49:964(G) provides that in the judicial review of an adjudication proceeding the court may reverse the decision of the agency “if substantial rights of the appellant have been prejudiced.” Even if our conclusion that the commission followed the law were erroneous a reversal of the commission’s decision would not be warranted because Durousseau’s substantial rights were not prejudiced. He was adequately informed of the charge brought against him by the security officers and of the action taken by the stewards. He was afforded a complete and unrestricted opportunity to present evidence in his behalf before the commission, he was represented by counsel, he was afforded confrontation and the right of cross examination as to all the adverse witnesses, and he took a timely appeal for judicial review with full knowledge of the commission’s decision as well as its findings of fact and conclusions of law. Had the commission issued its written findings of fact within 48 hours after the decision was made rather than on May 4 Durousseau would have had no more information on which to base his appeal. There is no suggestion in Durousseau’s brief or argument of any prejudice to his substantial rights because of the alleged tardiness of the narrative report by the commission. In effect, he argues that the commission’s technical violation warranted a reversal of the commission’s decision by the trial court. We hold that this is inconsistent with R.S. 49:964(G).

Accordingly, the judgment of the district court is reversed and set aside. There is judgment in favor of Louisiana State Racing Commission and against L. J. Durous-seau, dismissing his petition for judicial review and affirming the decision of the Louisiana State Racing Commission suspending Durousseau as a jockey for one year. All costs of these proceedings are taxed against L. J. Durousseau.

REVERSED AND RENDERED.


text:
    Joseph E. SCHIELDER v. LOUISIANA OFFICE OF EMPLOYMENT SECURITY and Schwegmann Brothers.
    No. 11967.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 2, 1981.

      Ford T. Hardy, Jr., New Orleans, for plaintiff-appellant.
    C. Monk Simons, III, New Orleans, for defendants-appellees.
    Before GULOTTA, GARRISON and CHEHARDY, JJ.
   CHEHARDY, Judge.

Plaintiff, Joseph E. Schielder, appeals a district court decision in favor of defendants, Louisiana Office of Employment Security and Schwegmann Brothers, and against the plaintiff, denying his motion to remand his case to the Board of Review of the Louisiana Office of Employment Security for the taking of additional evidence.

This case originally came before the Louisiana Board of Review on an appeal filed by the plaintiff from a decision of an appeals referee, declaring that the determination of the agency disqualifying the plaintiff for unemployment benefits and canceling his wage credits with employer account No. 050894 for use to compute unemployment insurance benefits. The Board of Review denied the plaintiff’s appeal and ordered that the decision of the appeals referee be affirmed. The plaintiff then lodged an appeal in this matter with the district court pursuant to the provisions of LSA-R.S. 23:1634.

LSA-R.S. 23:1634 also states in part:

“ * * * In any proceeding under this Section the findings of the board of review as to the facts, if supported by sufficient evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of the court shall be confined to questions of law. No additional evidence shall be received by the court, but the court may order additional evidence to be taken before the board of review, and the board of review may, after hearing such additional evidence, modify its findings of fact or conclusions, and file such additional or modified findings and conclusions, together with a transcript of the additional record, with the court. * * * ”

Sehielder now argues on appeal that the district court should have ordered additional evidence to be taken before the Board of Review due to the allegations that new evidence has been found, plaintiff was not represented by counsel at the initial hearing, plaintiff was found “not guilty” in a criminal proceeding involving the facts surrounding the present case, and the findings of the referee of the Louisiana Office of Employment Security were arbitrary and capricious.

We cannot agree. The statutory law and jurisprudence surrounding cases such as the present one are very clear. In the case of Cotton Bros. Baking Co., Inc. v. Bettevy, 367 So.2d 1274 (La.App.3d Cir. 1979), the court articulated the scope of review applicable in the present case and also examined the provisions of LSA-R.S. 23:1601, under which the plaintiff in the present case was also denied wage credits, at 1276:

“At the outset, we note that the scope of our appellate review in cases arising under the Louisiana Employment Security Law is expressly limited by statute. In unemployment compensation cases, our jurisdiction is confined to questions of law, and the findings of the Board of Review as to facts, if supported by sufficient evidence, and in the absence of fraud, is conclusive. La.R.S. 23:1634; Lingo v. State of Louisiana, Department of Employment Security, 364 So.2d 1367 (La.App.3rd Cir. 1978).
“La.R.S. 23:1601 sets forth the circumstances under which a claimant for unemployment compensation benefits can be disqualified from receiving such benefits. Particularly applicable to this case is subsection 2 of the statute, which is concerned with discharge for misconduct. The sub-section states:
‘An individual shall be disqualified for benefits:
(1) .. ..
(2) If the administrator finds that he has been discharged for misconduct connected with his employment. Such disqualification shall continue until such time as the claimant (a) can demonstrate that he has been paid wages for work equivalent to at least ten times his weekly benefit amount following the week in which the disqualifying act occurred and (b) was not left his last work under disqualifying circumstances. In addition, if the administrator finds that such misconduct has impaired the rights, damaged or misappropriated the property of or has damaged the reputation of a base period employer, then the wage credits earned by the individual with the employer shall be canceled and no benefits shall be paid on the basis of wages paid to the individual by such employer.
“As can be seen from a simple reading of the sub-section, there are two levels of consequences which can flow following discharge from a position by virtue of misconduct. First, an employee is disqualified from receiving benefits simply by virtue of misconduct. Second, if the misconduct is more severe, and thereby impairs the rights, damages or misappropriates the property of, or damages the reputation of the employer, then, in addition to disqualification from benefits, the wage credits earned by the employee with the employer are cancelled.”

In the plaintiff’s case, the appeals referee made the following findings of fact:

“The claimant worked for the named employer from 7-14-78 until 9-5-79. As of his last day of employment, he was classified as a porter. He had been previously an assistant floor supervisor. This was a full time job and the claimant earned as a porter, $3.25 per hour. On the claimant’s last day of work, he was observed taking 2 grocery bags full of dog food to a cashier check out counter. Previously, a customer had requested the claimant to be paged and this was done by Ms. Jacqueline Roger, customer service clerk. Thereafter, the claimant was confronted by Mr. Steve Lougee, Security Office, concerning the merchandise. It was learned that the claimant had marked down the merchandise for the customer. The claimant had no authorization to mark down the merchandise. The retail value of the merchandise was $81.44 and the claimant had marked down the merchandise to $31.70. The merchandise had not previously [been] marked down and the claimant had obtained the merchandise from the regular bin and not from a damaged bin. Prior to this incident, the claimant had been warned concerning unauthorized marking down of merchandise. As an assistant floor supervisor, the claimant did have authority to mark down merchandise, but did not have the authority as a porter which was his job as of his last day of employment, 9-5-79. Upon being confronted, the claimant did admit that he had marked down the merchandise and had done so previously for this particular customer. Because of this action, the claimant was discharged.”

A review of the transcript of the administrative hearing before the appeals referee completely supports his above-quoted findings of fact. The plaintiff, in his position as a porter, had no authority to mark down merchandise, and there was a great deal of testimony from Schwegmann employees indicating that thé marked down dog food in this case would not have been considered damaged merchandise. Moreover, Schielder admitted he had been told previously not to mark merchandise down. Because the findings of fact of the Louisiana Office of Employment Security are supported by sufficient evidence, therefore, they are conclusive and both this court and the district court are bound by them. Under the provisions of LSA — R.S. 23:1601, furthermore, the plaintiff was properly denied both benefits and wage credits accumulated on that employer’s account.

Neither is there any merit to the plaintiff’s argument that his constitutional rights were violated because he was not represented by counsel at the administrative hearing. Although he certainly had the right to be represented by counsel at this hearing, if he had chosen to do so, the denial of unemployment compensation benefits carries with it no type of criminal penalties and this court finds no basis in law that in such an administrative hearing a party must be guaranteed representation by counsel. The allegation that the plaintiff was found not guilty of criminal charges evolving from the factual situation in the present case is completely irrelevant to the matter before this court. Although the district court, under the provisions of LSA-R.S. 23:1634, “may” have ordered additional evidence to be taken before the Board of Review, we find no abuse of discretion in his decision to deny the plaintiff’s request for such an order.

For the reasons assigned, the decision of the district court is affirmed.

AFFIRMED.