text:
    Jessie J. HOWARD v. CITY OF OPELOUSAS HOUSING AUTHORITY.
    No. 12911.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 27, 1979.

      Gerald H. Schiff Sandoz, Sandoz & Schiff, Opelousas, for appellant.
    Felix A. De Jean, III, Opelousas, for ap-pellee.
    Before ELLIS, CHIASSON and PONDER, JJ.
   ELLIS, Judge.

This is an appeal by Jessie J. How.ard from an opinion of the State Civil Service Commission sustaining his dismissal from his position of Project Manager IY, with the City of Opelousas Housing Authority. The ground for his dismissal is set forth in the letter of dismissal, dated January 11, 1978, as follows:

“On June 30th, 1977, you willfully and wantonly abandoned your job as Project Manager IV, without first obtaining authorization for a leave of absence from the Board of Commissioners of the Authority.”

The record shows that Mr. Howard was granted a 12-month leave of absence without pay, beginning July 1, 1977, by his appointing authority, Ashton P. Giron, then the Executive Director of the Housing Authority. On July 18,1977, Mr. Howard was advised by letter from M. J. Soileau, the new Executive Director of the Authority, that it was necessary that he have the approval of his leave of absence by the Board of Commissioners of the Authority. Through counsel, Mr. Howard advised the Board that his leave was obtained in accordance with Civil Service Regulations and the personnel policy of the Authority, and requested that he be advised of the rules or regulations which required that he seek Board approval. Despite being reiterated at a meeting of the Board, and by letter, the request was never answered.

At the hearing before the Commission, it appeared that the Board was relying on its own personnel policy, and on a letter which it had received from the United States Department of Housing and Urban Development.

Section 11 of the Personnel Policy covers the policy relative to leave and contains the following provisions relative to leave without pay:

“(a) An appointing authority may grant an employee leave of absence without pay for a period not to exceed one year, provided that such grant of leave shall not extend the period of his appointment.
“(b) After presenting justifiable reasons in writing to the Commission and with its approval, an appointing authority may grant a permanent or probationary employee leave of absence without pay for a period or periods in excess of one year.”

The Authority also relies on Section 5, which provides:

“5. AUTHORITY TO EFFECT PERSO-NEL ACTIONS:
“Authority to appoint, promote, transfer, demote and separate personel shall be vested in the Executive Director and such other officials as are formally designated to act for him, except that personel actions relating to the key employees shall be reserved for Board action on the recommendation of the Executive Director.”

The Authority offered in evidence a letter from the Department of Housing and Urban Development, dated July 14, 1977, containing the following sentence, which is alleged to refer to Mr. Howard:

“Although it is up to the appointing authority, we would not approve the request of the project manager’s leave without pay for one year.”

The Authority argues, and the Civil Service Commission found, that Mr. Howard was a key employee, and that all personnel action, including leave requests, had tó be approved by the Board.

We cannot agree. We think it clear that Section 5, supra, relates only to the personnel actions covered therein, i. e., appointment, promotion, transfer, demotion and separation, and that Section 11, which covers leave policy, and which is extremely long and detailed, is in no wise modified thereby. The letter from the Department of Housing and Urban Development recognizes the power of the appointing authority to approve a leave request, and is of no help to the Housing Authority.

We find that the Housing Authority and the Commission have incorrectly interpreted the personnel policy of the Housing Authority by superimposing the “key employee” provision of Section 5 on the “leave without pay” provisions of Section 11. We further found that Mr. Howard satisfied the requirements thereof when he obtained the grant of a 12-month leave of absence without pay from his appointing authority, Ashton P. Giron.

The action of the City of Opelousas Housing Authority is therefore set aside, and it is ordered that Jessie J. Howard be reinstated in his position as Project Manager IV as of July 1, 1978, the date he would have returned from his leave, with all pay and emoluments of the said office from that date.

REVERSED AND REMANDED.


source: Caselaw Access Project

author: ELLIS, Judge.

license: Public Domain

text:
    Milton OSBORNE, Jr. v. Lionel CHRISTOPHE.
    No. 12919.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 27, 1979.

      Albert F. Richard, Osborne & Richard, Plaquemine, counsel for plaintiff-appellant-Milton Osborne, Jr.
    Gregory N. Bilyeu, Freeman & Pendley, Ltd., Plaquemine, counsel for defendant-ap-pellee-Lionel Christophe.
    Before ELLIS, CHIASSON and PONDER, JJ.
   ELLIS, Judge.

Plaintiff Milton Osborne, Jr. alleges in his petition that defendant Lionel Christophe filed a complaint with the Committee on Professional Responsibility of the Louisiana State Bar Association, in which defendant falsely accused plaintiff of having stolen property from him. It is further alleged that, as a result of the complaint, the Committee conducted an investigation thereof, and that a decision was rendered dismissing the complaint on the ground that it “was not of such a nature to warrant further action by said Committee.” Plaintiff further alleges that defendant acted maliciously and without probable cause in filing the said complaint, and that, as a result, defendant is “guilty of malicious prosecution, maliciously putting the law in motion and of defaming your petitioner.”

To the petition, defendant filed an exception of no cause of action for the following reasons:

“a. The allegations of ultimate fact do not disclose any malice or intent to defame the plaintiff;
“b. The Committee on Professional Responsibility of the Louisiana State Bar Association has organized a system of complaints from laymen who believe they have been wronged by attorneys practicing in the state;
“c. By its nature, the system does not punish complainants but offers a tribunal to air their grievances.”

After hearing arguments on the exception, judgment was rendered sustaining the exception as to the cause of action for defamation, and overruling the exception as to the cause of action for malicious prosecution. Judgment was signed dismissing the cause of action “as pertaining to defamation.” From that judgment, plaintiff has appealed. Defendant has answered the appeal asking that the exception be maintained as to the cause of action for malicious prosecution, and the case be dismissed in its entirety.

In the case of Bailey v. Texas Pacific Coal and Oil Company, 134 So.2d 339 (La.App.3rd Cir. 1961), in dealing with a similar situation, the court said:

“[1] We think the jurisprudence of this State has been established to the effect that a suit will be dismissed on exceptions of no right or no cause of action where the allegations of fact contained in the petition adequately set forth a right and a cause of action as to any part of plaintiff’s demands. (Citations omitted)
“[2] We are aware of the fact that there is also a line of jurisprudence which holds that where two separate and distinct demands are set up in the same suit, an exception of no cause or right of action may lie to eliminate the one while the other is maintained. (Citations omitted)
“[3] In the instant suit both of plaintiff’s demands are based on one incident, or upon one set of facts, and it appears to us that the same evidence would be required to support either or both of those demands. We think, therefore, that the petition does not set out two separate and distinct demands, but rather it sets out one cause of action on which plaintiff bases his demand for two different types of relief. Under those circumstances we are convinced that exceptions of no cause and no right of action may not be employed to eliminate one demand while the other is maintained. For that reason, we feel that the general rule hereinabove first set out must be applied, and since the petition adequately sets forth a right and a cause of action as to a part of plaintiff’s demands, the exceptions of no right or cause of action must be overruled.”

We agree that the exception of no cause of action cannot be used to eliminate issues or theories in a case in which the facts are alleged sufficient to set forth a cause of action on any theory. The exception should have been overruled.

By answer to the appeal, defendant asks that we review that part of the judgment overruling is exception as to the malicious prosecution cause of action. This is, of course, an interlocutory judgment, not reviewable on appeal.

The judgment appealed from is therefore reversed and set aside, and the case remanded to the trial court for further proceedings in accordance with the law. Defendant shall pay all costs of this appeal, with all other costs to await final disposition of the case on its merits.

REVERSED AND REMANDED.


author: ELLIS, Judge:

text:
    CITY OF BATON ROUGE v. Ronald CAUSEY.
    No. 12935.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 27, 1979.
    Rehearing Denied Feb. 20, 1980.
    Writ Refused April 18, 1980.
    Walter G. Monsour, Jr., Parish Atty., James J. Zito, Asst. Parish Atty., Baton Rouge, for plaintiff-appellee City of Baton Rouge.
    Ronald L. Causey, Richard L. McGimsey, Baton Rouge, for defendant-appellant Ronald Causey.
    Before ELLIS, CHIASSON and PONDER, JJ.
   ELLIS, Judge:

In this suit the City of Baton Rouge is seeking to enjoin defendant, Ronald Cau-sey, from operating a law office at 4524 Perkins Road in violation of the zoning regulations of the City. After a hearing, a preliminary injunction was issued by the court, and defendant has appealed. In this court it is argued that there were not sufficient grounds for the issuance of the injunction and that the trial court abused its discretion in issuing the injunction.

The record shows without contradiction that defendant’s property is zoned A — 1, and that the operation of a law office therein is not permitted by the zoning regulations. Defendant argues that the City has failed to show irreparable loss, injury or damage, and that injunctive relief is therefore not appropriate. The contention is without merit. It is well settled that a municipality has the right to enjoin violations of a zoning ordinance. City of New Orleans v. Leeco, Inc., 219 La. 550, 53 So.2d 490 (1951); City of New Orleans v. Langenstein, 91 So.2d 114 (La.App., Orl.1956); Norton v. Lay, 360 So.2d 239 (La.App., 1st Cir. 1978).

The record fully supports the action of the trial judge, and there is no abuse of discretion shown.-

The judgment appealed from is affirmed, at defendant’s cost.

AFFIRMED.


text:
    James N. SHEETS v. Clayton ROBIN d/b/a Bluff Acres Ranch.
    No. 12938.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 27, 1979.
    Victor L. Marcello, Donaldsonville, for plaintiff and appellee.
    Stacey A. Moak, Baton Rouge, for defendant and appellant.
    Before ELLIS, CHIASSON and PONDER, JJ.
   ELLIS, Judge:

This is a suit in which plaintiff James N. Sheets seeks damages from defendant Clayton Robin, doing business as Bluff Acres Ranch, for injuries received by plaintiff’s paint mare, Sunday Too, while in defendant’s custody. After trial on the merits, judgment was rendered in favor of plaintiff, and defendant has appealed.

Since the parties hereto, in brief, argue a number of alternative legal theories for the case, since there are serious factual disputes, and since the trial judge did not render written reasons for judgment, we are unable to tell what findings of fact and law he might have made. We will therefore make our own factual and legal findings.

Plaintiff purchased Sunday Too in April, 1975, for $4,500.00, intending to use her as a show horse. During the time he owned her, she was being trained and ridden by various handlers, and she won some awards in local open shows. Shortly before the events leading up to this lawsuit, plaintiff attempted to sell the mare by advertising in a trade journal and at a national paint horse auction. He testified that the best offer he received through the ad was $4,100.00. At the auction, the highest bid was $1,750.00 and he withdrew her from the sale. It was then that he decided to breed Sunday Too.

Plaintiff testified that he first discussed breeding his mare to defendant’s stallion, High Tone, at a Sheriff’s Posse meeting, and later again discussed the matter with defendant on the telephone. According to plaintiff, he made it clear that he did not want Sunday Too injured, and that he was assured by defendant that she would be “halter bred,” not allowed to run free in the pasture with High Tone, and would be fully supervised at all times.

According to defendant, he told plaintiff that he only “pasture bred” on his farm, and that plaintiff was aware that Sunday Too would be allowed to run free in the pasture with High Tone and other brood mares as well.

Sunday Too was left at defendant’s farm for breeding in March, 1977. After she had been there for some time, it was noticed one morning that she had some bruises and a swollen eye. She was treated for the bruises by defendant, but did not receive the attention of a veterinarian. No one could testify as to how these injuries were received.

On May 7, 1977, Mr. Sheets picked up Sunday Too from defendant’s farm. At that tini% he testified that she was limping, and that there was something wrong with her left eye. An examination by a veterinarian revealed that she was blind in the eye, and that she was suffering from a inotor nerve injury which led to a condition called “sweeney.” These injuries rendered her unfit to be a show horse. There was a difference of opinion among the veterinarians who saw her as to whether she could have functioned as a brood mare, and as to the prognosis for her recovery from the shoulder injury.

Expert testimony in the record, which is uncontradicted, indicates that, unless there is an agreement to the contrary, the method of breeding is usually at the option of the owner of the stallion, and that the owner of the mare accepts the risk of injury by the stallion or by other mares while the mare is at the stud farm.

Both parties to the case argue that the applicable law is the law of deposit, and plaintiff also argues that Articles 2317 and 2321 require that defendant be held strictly liable. We do not find either of these theories of law to be dispositive of the case. We find the case to be governed by the agreement between the parties and the law applicable thereto.

There is, of course, hopeless conflict between the testimony of the parties as to the specific agreement reached. Plaintiff was of the opinion that he was taking no risk at all that his horse would be injured. Defendant was of the opinion that plaintiff was assuming all risks associated with pasture breeding.

We find defendant’s testimony to be more believable. It is clear from the record that no knowledgeable breeder of horses would guarantee the safety of a mare from the kinds of injuries received by Sunday Too.. It is not contended that Mr. Robin was not knowledgeable. It is uncontradict-ed that Mr. Robin was running a pasture breeding operation, in which mares are left in a pasture with the stallion, and with other mares, and an agreement such as that claimed by plaintiff would be inconsistent with his operation. Finally, there are a number of inconsistencies in plaintiff’s testimony, whereas defendant’s evidence is entirely consistent and in line with the customs followed in horse breeding.

At best, plaintiff may have shown that there was no meeting of the minds as to the particulars of the breeding contract. In such a situation, the provisions of Articles 1964 and 1966 of the Civil Code are peculiarly applicable:

“Art. 1964. Equity, usage and law supply such incidents only as the parties may reasonably be supposed to have been silent upon from a knowledge that they would be supplied from one of these sources.”
* * * * * *
“Art. 1966. By the word usage mentioned in the preceding articles, is meant that which is generally practiced in affairs of the same nature with that which forms the subject of the contract.”

As pointed out above, the custom among those entering into breeding contracts is that the risk of injury to a mare is on the owner thereof, in this case, the plaintiff. Defendant, under the circumstances which we have found to exist herein, can not be held responsible.

The judgment appealed from is therefore reversed and set aside, and there will be judgment herein dismissing plaintiff’s case, at his cost.

REVERSED AND RENDERED.


author: CHIASSON, Judge.

text:
    Mrs. Sharon Kron SCHOBER v. Louis J. SCHOBER.
    No. 12905.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 27, 1979.
    Robert L. Picou, Jr., Houma, for defendant and appellant.
    Robert D. Lottinger, Michael J. Scurto, Houma, for plaintiff and appellee.
    Before ELLIS, CHIASSON and PONDER, JJ.
   CHIASSON, Judge.

Louis J. Schober appeals the judgment of the trial court allowing custody of his two minor boys, ages ten and thirteen years, to remain with his former wife, Sharon Kron Schober.

In the divorce decree rendered in April of 1975, Mrs. Schober was awarded permanent custody of the minor children of the marriage. Subsequent to the divorce, Mr. Scho-ber remarried and on February 9, 1979, a custody rule was filed on his behalf. Mr. Schober alleged and later proved that his former wife had lived with her paramour in the same house with the minor children from July, 1978 until February 9, 1979, the same day the custody rule was served. He further asserted that the children were living in an unclean house, were allowed to drink alcoholic beverages and were generally neglected. Mr. Schober therefore contends that the best interest of the children would be served by granting him custody.

After hearing testimony, the trial judge found that the welfare of the children would be best served by permitting Mrs. Schober to retain custody. The trial judge placed little significance on an incident where one of the children was allowed a beer at Thanksgiving. He further found that the house was livable and not unwholesome. As to Mrs. Schober’s illicit relationship, the trial judge applied the rationale of Monsour v. Monsour, 347 So.2d 203 (La. 1977). In that case, Mrs. Monsour lived with her paramour for approximately four months before being served with a custody rule. After being served with the rule, but before the hearing, Mrs. Monsour married the man with whom she was living. The trial court found that the mother’s remarriage indicated that she had reformed and refused a change of custody. This finding was affirmed by the Supreme Court after being reversed by the Court of Appeal.

Appellant contends that the trial judge erred (1) in applying the rationale of Monsour to the present case, and (2) in finding that Mrs. Schober adequately supervised the children and maintained a wholesome house.

It is well settled that the paramount consideration in any custody award is the welfare of the children. Once an award of custody has been made “the party seeking the change bears a heavy burden of proving that the continuation of the present custody is so deleterious to the children as to justify removing them from the environment to which they are accustomed.” Fulco v. Fulco, 259 La. 1122, 254 So.2d 603 (1971). Furthermore, upon review, the determination of the trial judge is entitled to great weight since he is in a better position to evaluate the conduct and character of the parties and to determine what is in the best interest of the children. Therefore, the trial judge’s findings should not be overturned in the absence of a clear showing of abuse. Fulco, supra.

After evaluating all the evidence, the trial judge in the present case felt that the welfare of the children would best be served by allowing Mrs. Schober to retain custody. The trial judge was apparently convinced that Mrs. Schober had reformed and was properly providing for her children. The record reveals that, when Mrs. Schober was served with the custody rule, she made her paramour move out of the house and has not allowed him to return. She is now aware of the impropriety of her action and does not intend to repeat it. Applying the above standard of review to the facts of this case, we are unable to conclude that the trial judge abused his discretion in the matter.

Appellant further contends that Mrs. Schober’s home is unwholesome and that she failed to adequately supervise the children. The resolution of these issues requires an evaluation of conflicting testimony. The trial judge found the testimony supporting appellee’s positions to be more reasonable and credible. The record amply supports these findings.

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

AFFIRMED.


text:
    In re Wayne Edward KOONCE and Joy Marie Granier Koonce Applying for Adoption.
    No. 12910.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 27, 1979.
    Rehearing Denied Feb. 20, 1980.
    Writ Refused April 18, 1980.

      Joseph R. Raggio, Baton Rouge, for plaintiff-appellant Wayne Edward Koonce.
    Patrick W. Pendley, Plaquemine, for defendant-appellee Joy Marie Granier and Curator Ad Hoc for Johnny James Koonce and Roxanne Joy Koonce.
    William O. Templet, Plaquemine, for defendant-appellee Joseph Bentley Anderson.
    Before ELLIS, CHIASSON and PONDER, JJ.
   CHIASSON, Judge.

Wayne E. Koonce appeals the judgment of the trial court refusing to declare a final decree of adoption an absolute nullity. Mr. Koonce and Joy M. Granier Anderson entered into a marriage on September 12, 1975. A final decree of adoption was signed on June 17, 1976, wherein Mr. Koonce adopted two of Mrs. Anderson’s minor children. Subsequently, Mr. Koonce filed a petition for the annulment of the marriage on the grounds that the Alabama divorce between Mrs. Anderson and Mr. Bently Anderson, her former husband, was invalid. The invalidity of the Alabama judgment was based on the fact that, contrary to the allegation in her petition, Mrs. Anderson never resided in the State of Alabama. On June 21, 1978, Mr. Koonce obtained a judgment declaring his marriage to Mrs. Anderson an absolute nullity and holding Mrs. Anderson to be in legal bad faith. Shortly thereafter, he filed a petition for annulment of the adoption decree.

After trial, judgment was rendered dismissing the petition for annulment. It was the trial judge’s opinion that there was no fraud or ill practice sufficient to warrant the setting aside of the adoption decree. Appellant contends that the trial judge erred in refusing to declare the adoption decree an absolute nullity.

The trial judge has much discretion in- determining whether a judgment should be annulled because of fraud or ill practice and his finding will not be disturbed in the absence of an abuse of such discretion. Succession of Davis, 347 So.2d 906 (La.App. 3rd Cir. 1977). We find that the trial judge did not abuse his discretion.

Appellant argues that the adoption statutes must be strictly construed and that in the present case the statutes were not complied with. This argument is based on appellant’s assertions that he was not a “spouse” nor were he and Mrs. Anderson a “married couple” within the contemplation of the adoption statutes. We find this argument to be without merit.

Article 117 of our Civil Code stated:

“The marriage, which has been declared null, produces nevertheless its civil effects as it relates to the parties and their children, if it has been contracted in good faith.”

Civil Code Article 118 states:

“If only one of the parties acted in good faith, the marriage produces its civil effects only in his or her favor, and in favor of the children born of the marriage.”

The import of these provisions is to cause civil effects of a marriage to flow in favor of the party who- marries in good faith as though the marriage had been legally contracted. “Unless there is a legal provision to the contrary, whatever benefit accrues to a legal spouse also accrues to the good faith spouse of a marriage which has been annulled or which is subject to nullity.” King v. Cancienne, 316 So.2d 366 (La. 1975). The Supreme Court has held that “good faith spouse” is interchangeable with “spouse” or “widow.” King, supra.

Based on the broad construction afforded the putative marriage provisions of the Civil Code, we find that, since Mr. Koonce was a good faith putative spouse, he was a “spouse” and he and Mrs. Anderson were a “married couple” within the meaning of the adoption statutes. Cortes v. Fleming, 307 So.2d 611 (La.1974). We also find that appellant’s status as a “spouse” was a civil effect in his favor at the time of the adoption which entitled him to obtain a final adoption decree at the first hearing in accordance with the provisions of La.R.S. 9:434.

The obtaining of a final adoption decree under these circumstances does not constitute fraud or ill practice. Thereafter, a change of heart and difficulties with the children’s mother cannot support setting aside the adoption.

Appellant also contends that, even if the adoption statutes were complied with, the adoption should nevertheless be set aside. Mr. Koonce testified that he consented to the adoption primarily because of Mrs. Anderson’s insistence and to stop the visits of a man alleged to be the natural father of one of the children. However, Mr. Koonce also stated that he was aware that the rights of the children would be the same as those of biological children and that their inheritance rights had been explained to him. Therefore, he was fully aware of the legal consequences of the adoption. Under these circumstances, the trial judge did not err in his determination that no fraud or ill practice sufficient to set the adoption aside had been perpetrated on appellant.

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

AFFIRMED.

      . La.CCP Art. 2004 provides:
      “A final judgment obtained by fraud or ill practices may be annulled.
      “An action to annul a judgment on these grounds must be brought within one year of the discovery by the plaintiff in the nullity action of the fraud or ill practices.”

      . La.R.S. 9:434 insofar as relevant herein provides:
      “When the department does not make recommendations against the adoption, and all other requirements for an interlocutory decree have been met, the. court may render a final decree of adoption at the first hearing, without the necessity of entering an interlocutory decree, where:
      (2) The spouse of the petitioner is the legitimate parent of the child.
      (4) A married couple jointly petitions to adopt a child born out of wedlock to one of the petitioners.”


text:
    Joseph V. FOSTER, Jr., et al. v. DEPARTMENT OF CORRECTIONS.
    No. 12918.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 27, 1979.
    Rehearing Denied Feb. 20, 1980.
    Joseph V. Foster, Jr., and Louis J. Ballard, in pro. per.
    Department of Corrections, Wm. J. Guste, Jr., Baton Rouge, for defendant-ap-pellee Department of Corrections.
    Before ELLIS, CHIASSON and PONDER, JJ.
   CHIASSON, Judge.

Appellants, Joseph V. Foster, Jr. and' Louis J. Ballard, seek review of the trial court’s judgment dismissing their suit for failure to state a cause of action.

Appellants, who are inmates in the Louisiana State Penitentiary, seek $50,000 each in damages for alleged violations of their constitutional rights. It is their contention that correctional officers have harassed, separated, and attempted to stop all communication between them. They specifically complain of an incident where Mr. Foster was awaiting transfer to new quarters and possibly to the same quarters as Mr. Ballard when correctional officers attempted to convince Mr. Ballard to make a statement to the effect that Mr. Foster would cause him trouble if transferred to his quarters. Mr. Ballard refused to make such a statement and officers allegedly threatened him with disciplinary action and with transfer to undesired quarters. Appellants contend that such treatment is violative of -certain constitutional rights in that it inflicts cruel and unusual punishment. They further assert that their remedy is a civil suit for damages and that the trial judge erred in denying them this remedy.

We find that the trial judge did not err in dismissing appellants’ suit for failure to state a cause of action.

Basically, appellants are contending that it is cruel and unusual punishment to assign them to separate quarters. This contention has no merit since they do not have the right to be assigned to the same quarters. See: Meachum v. Fano, 427 U.S. 215, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976); Montanye v. Haymes, 427 U.S. 236, 96 S.Ct. 2543, 49 L.Ed.2d 466 (1976). They, therefore, have no cause of action for damages.

The appropriate remedy for the other allegations set forth in appellants’ petition is an administrative hearing. It would be proper for appellants to petition for judicial review only after the available administrative remedies have been exhausted. State ex rel. Armistead v. Phelps, 365 So.2d 468 (La.1978).

For these reasons the judgment of the trial court is affirmed.

AFFIRMED.


text:
    Gerald A. WILLIAMS v. Tom A. ENMON.
    No. 12927.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 27, 1979.
    Rehearing Denied Feb. 20, 1980.
    Writ Refused April 8, 1980.
    George N. Bischof, Jr., Chalmette, for plaintiff.
    Ron S. Macaluso, Hammond, for defendant.

      Before ELLIS, CHIASSON and PONDER, JJ.
   CHIASSON, Judge.

Appellant, Gerald A. Williams, seeks review of the trial court’s judgment dismissing his suit for refund of a deposit, attorney’s fees, interest and cost in connection with an agreement to purchase real property belonging to Tom A. Enmon.

On March 16, 1978, Dr. Williams entered into a contract to purchase real estate from Tom Enmon. In accordance with the contract, Dr. Williams deposited 10% of the purchase price ($4,856) to be placed in escrow. The contract was conditioned upon vendee’s ability to obtain financing at an interest rate not to exceed 9¾% per annum over a period of not less than 30 years. If he was unable to do so within 45 days, the agreement provided that the contract would be null and void and the agent authorized to return the deposit in full. The contract further provided that the act of sale was to be passed no later than May 1, 1978.

On March 16, 1978, Gulf Union Mortgage Company took Dr. Williams’ application for a loan at an interest rate of 9½% per an-num. The loan was not approved by May 1, 1978. However, without a formal extension of time, negotiations continued beyond that date. In response to a request by Mr. En-mon, Dr. Williams wrote the mortgage company on May 30, 1978 informing it that the property would be his residence. Thereafter on June 2,1978, the loan was approved at a higher interest rate of 9.9% per annum. Dr. Williams refused to purchase the property at this higher rate of interest and subsequently requested and was refused return of his deposit.

On July 5, 1978, Dr. Williams filed suit alleging that he was entitled to return of the deposit, interest, reasonable attorney’s fees and costs since the stipulated financing was unavailable and no act of sale was passed by May 1, 1978. Tom Enmon, in reconvention, alleged that Dr. Williams breached his agreement to purchase by failing to make a good, faith application for the required loan.

Civil Code Article 2040 provides: “The condition is considered as fulfilled, when the fulfillment of it has been prevented by the party bound to perform it.” Therefore, when fulfillment of a suspensive condition is prevented by the fault of a party, that party may not invoke the condition. Groghan v. Billingsley, 313 So.2d 255 (La.App. 4th Cir. 1975). In the present case, the contract contained a suspensive condition to the effect that the contract would become null and void and the vendee entitled to his deposit if financing was not obtained at a rate of 9¾ per annum by May 1,1978. If that condition had not been met due to Dr. Williams’ fault, then he could not contend that the contract became null and void. We find that failure to meet the deadline was not due to appellant’s actions.

The evidence reveals that Dr. Williams cooperated with Gulf Union Mortgage Company and promptly provided them with requested information. The evidence supports the conclusion that the May 1st deadline was not met primarily because of the mortgage company’s late request for certain information. The record reveals that the mortgage company did not immediately process the loan because of some question concerning the acceptability of the property to its investors. The first action taken to process the loan was on March 29,1978. By letter dated April 21, 1978, the mortgage company requested certain information from appellant which information was mailed to them in an envelope postmarked April 25, 1978. The loan application was transmitted to the underwriters committee by an instrument dated May 12, 1978, and thereafter it was determined that additional information was needed. In response to the request for additional information, appellant furnished the requested information in an envelope postmarked May 30, 1978. The loan was thereafter approved on June 2, 1978, but at an increased interest rate. We therefore hold that appellant did make a good faith attempt to secure the necessary loan.

In his reasons for judgment, the trial judge stated:

“The decision hasn’t changed, more specifically with these particular facts involved. The letter that was mailed on May 30, 1978, by Dr. Williams, in response to a request by Mr. Enmon leads the court to believe that by agreement they had expanded the condition in the contract, and by expansion of the agreement, as in mortgage contracts, and all other written contracts that effect (sic) immovables, when both parties tacitly agree not to abide by the contracts, then that condition was as though it was not written.”

Even if it is conceded, arguendo, that the time extension need not be in writing and that there was a tacit agreement to extend the time for performance, it cannot be contended, due to a total absence of evidence, that the parties agreed to increase the specified interest rate. See Treadaway v. Laporte, 195 So.2d 408 (La.App. 4th Cir. 1967) and Parker Mead, Inc. v. Cutrer, 239 So.2d 729 (La.App. 1st Cir. 1970). Without such an agreement, that suspensive condition of the contract was unfulfilled when Gulf Union Mortgage Company approved the loan at an interest rate of 9.9% per annum. In accordance with the contract, Dr. Williams then rightfully exercised the suspensive condition to declare the contract null and void. Appellant is therefore entitled to the return of the deposit paid to appellee.

Appellant’s demand for attorney’s fees is denied. Upon the nonfulfillment of the suspensive condition the contract, by its very terms, is null and void and no rights can flow to either party from such an agreement. Richmond v. Krushevski, 243 La. 777, 147 So.2d 212 (1962); Kansas v. Schaeffer, 299 So.2d 474 (La.App. 4th Cir. 1974), writs refused 302 So.2d 616 and 617 (La.1974).

For these reasons, the judgment of the trial court is reversed and it is ordered, adjudged and decreed that there be judgment herein in favor of Gerald A. Williams and against Tom A. Enmon in the full and true sum of $4,856 with interest thereon from date of judicial demand until paid and for all costs of these proceedings.

REVERSED AND RENDERED.


text:
    HANAGRIFF’S MACHINE SHOP, INC. v. SLAW CONSTRUCTION COMPANY, INC., et al.
    No. 12932.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 27, 1979.

      Michael J. McNulty, Jr., Bauer, Darnall, McNulty & Boudreaux, Franklin, for plaintiff.
    Maurice P. Mathieu, Rhodes & Mathieu, Houma, for Slaw Construction Co., Insured Lloyds Ins. Co. and Early American Ins. Co.
    Before ELLIS, CHIASSON and PONDER, JJ.
   CHIASSON, Judge.

Slaw Construction Company, Inc. and its insurers, Early American Insurance Company and Insured Lloyds, appeal the trial court’s judgment awarding $18,458.00, plus interest and costs to Hanagriff’s Machine Shop, Inc. for property damage sustained to a building when it was struck by a tractor-trailer driven by Fred Slaw, president of Slaw Construction.

On the day of the accident, Fred Slaw was driving a 1966 truck cab owned by Slaw Construction. Attached to the cab was a trailer which had been furnished by South Coast Corporation (South Coast) to Slaw Construction for the purpose of hauling sugar cane at a fixed price per ton. The price paid by South Coast to Slaw Construction was somewhat less per ton than that paid to haulers who furnished their own trailers.

Mr. Slaw testified that upon pulling off of the road to purchase some bolts, the trailer struck a building owned by Hanag-riff’s Machine Shop. At the time of the accident Mr. Slaw was in the course and scope of his employment and his negligence is not disputed.

Prior to and subsequent to trial, the insurance companies sought and were denied a summary judgment based on policy exclusions. Both policies contained the provision that the policy did not apply when “the automobile is used for the towing of any trailer owned or hired by the insured and not covered by like insurance in the company . . ..” It is the insurers’ position that there was a “hire” within the meaning of the policy exclusion since Slaw Construction was paid less than cab owners who furnished their own trailers.

After trial, during which there was dispute as to estimated damage to the building, judgment was rendered against all defendants in the sum of $18,458.00, plus interest and costs.

Appellants contend that the trial judge (1) erred in finding that the arrangements between Slaw Construction and South Coast did hot constitute a hire of the trailer within the meaning of the policy exclusion, and (2) abused his much discretion under the facts by awarding $18,458.00 in damages.

It is well settled that when an ambiguity in an insurance policy relates to an exclusionary clause or to a provision which limits liability, the law requires that the contract be interpreted liberally in favor of providing coverage. McGuire v. Smith, 370 So.2d 895 (La.App. 1st Cir. 1979); Craft v. Trahan, 351 So.2d 277 (La.App. 3rd Cir. 1977).

Certainly, there was not a direct “hiring” of the trailer under the facts before us. South Coast agreed to hire a driver and cab and to furnish a trailer at a fixed rate. There was no lease per se of the trailer to Slaw Construction. The ambiguity arises because it is unclear whether coverage exists in a situation where the insured neither owns nor hires a trailer but is furnished a trailer by the party who hires his tractor and the insured receives less pay than received by those who provide their own trailer. In accordance with the rule that ambiguities must be liberally construed against the insurer, this ambiguity must be resolved in favor of Slaw Construction. Therefore, we find no error in the trial judge’s determination of this issue.

Appellants also contend that the trial judge abused his discretion by awarding $18,458.00. However, the reviewing court must give great weight to factual conclusions of the trier of fact and before it can disturb an award made by the trial judge, the record must reveal that the award was clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

Each side presented one witness to testify as to cost of repair. A contractor who testified on behalf of Hanagriff’s Machine Shop stated that he could repair the building for $18,458.20. On the other hand, an architect testifying for Slaw Construction stated that the repairs could be accomplished for $6,118.00. The discrepancy in the contractor’s price and the architect’s estimate was primarily attributable to the witnesses’ differing opinions as to whether the roof would have to be removed to make the necessary repairs. The contractor testified that the figure he quoted would be the amount he would charge to do the repairs. The architect’s figure was what he estimated as cost of repair if plaintiff could find a contractor to do the repairs in the manner he suggested. The trial judge apparently found the contractor’s testimony on this issue to be more credible. The trial judge is in a better position to evaluate a witness and there is nothing in the record indicating that he was clearly wrong in his determination.

For these reasons the judgment of the trial court is affirmed at appellants’ costs.

AFFIRMED.


text:
    George ONWUKWE v. KROGER COMPANY.
    No. 12937.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 27, 1979.

      Madeline S. Carbonette, Baton Rouge, of counsel, for plaintiff-appellant George On-wukwe.
    A. S. Easterly, III, Baton Rouge, of counsel, for defendant-appellee Kroger Co.
    Before ELLIS, CHIASSON and PONDER, JJ.
   CHIASSON, Judge.

Appellant George Onwukwe seeks review of the trial court’s judgment dismissing his action against Kroger Company (Kroger) for malicious prosecution.

It is uncontested that on June 12, 1977 and July 4,1977 Mr. Onwukwe made checks to Kroger that were returned for insufficient funds. On July 25, 1977, Mr. On-wukwe received notice from Kroger by certified mail that these checks had been returned unpaid, along with a request for payment. Payment was not received and the checks were turned over to the District Attorney for criminal prosecution. After being contacted by the District Attorney’s Office, Mr. Onwukwe made payment to Kroger on August 29, 1977. It is Kroger’s policy to notify the District Attorney’s Office after receiving payment. An employee of Kroger testified that she was “almost positive” that she called the District Attorney’s Office in accordance with this policy. She also testified that Mr. Onwukwe’s name had been circled in the book used to record NSF checks. This circle is used to indicate that the District Attorney’s Office has been advised of payment. Thereafter, another employee of Kroger who was unaware that payment had been made signed an affidavit which stated in part that “(A)ll attempts to successfully obtain restitution have been unsuccessful.” A warrant of arrest was issued and Mr. Onwukwe was arrested on October 6, 1977. He was released on his own recognizance. Appellant then brought this suit alleging damages for malicious prosecution.

After trial, judgment was rendered in favor of Kroger. The trial judge was of the opinion that under the facts and circumstances, there was no actionable malice nor could malice be inferred.

Appellant presents the following issues for our consideration.

(1) Do the actions of Kroger Company constitute actionable malice or implied malice under Louisiana Civil Code Article 2315?
(2) Did Kroger Company overcome the presumption of lack of probable cause and malice?

It has repeatedly been maintained that “(A)ctions of this sort have never been favored, and, in order to sustain them, a clear case must be established . . Johnson v. Pearce, 313 So.2d 812 (La.1975). To prevail in a malicious prosecution case, the following elements must be satisfied: (1) The commencement or continuance of an original criminal or civil proceeding; (2) Its legal causation by the present defendant against plaintiff who was defendant in the original proceeding; (3) Its bona fide termination in favor of the present plaintiff; (4) The absence of probable cause for such proceeding; (5) The presence of malice therein; and, (6) Damage conforming to legal standards resulting to plaintiff. Robinson v. Goudchaux’s, 307 So.2d 287 (La.1975). The malice element can be inferred in cases where there is wanton and reckless disregard of the rights of a party, evincing utter absence of that caution and inquiry a man should employ. Robinson, supra.

In the present case, only the elements of malice, actual or implied, and lack of probable cause are at issue. Counsel for appellant contends that where charges are dismissed prior to trial, lack of probable cause and malice are presumed and the burden is on the defendant to prove that it acted with probable cause and without malice. Carter v. Catfish Cabin, 316 So.2d 517 (La.App. 2nd Cir. 1975). Even if this rule is applicable, we are of the opinion that Kroger has met its burden.

We are in agreement with the trial judge that malice did not exist. Mr. On-wukwe contends that malice should be inferred since, prior to the signing of the affidavit, the Kroger employee did not check to see if restitution had been made. However, at this point we must take notice, as did the trial judge, that the evidence shows a strong likelihood that another Kroger employee did notify the District Attorney’s Office of restitution and that office, nevertheless, prepared an affidavit and arrest warrant on Mr. Onwukwe. Under these circumstances, there is not the required clear showing of wanton or reckless disregard on behalf of Kroger sufficient to infer malice. Additionally, there is no affirmative proof of actual malice on the part of Kroger. Therefore, the malice element is unsatisfied.

Appellant also fails in his argument that there was lack of probable cause. La. R.S. 14:71 provides:

“Issuing worthless checks is the issuing, in exchange for anything of value, whether the exchange is contemporaneous or not, with intent to defraud, of any check, draft or order for the payment of money upon any bank or other depository, knowing at the time of the issuing that the offender has not sufficient credit with the bank, or other depository for the payment of such check, draft, or order in full upon its presentation. This provision shall not apply to payments on installment contracts or open accounts.
“The offender’s failure to pay a check, draft or order, issued for value, within ten days after notice of its nonpayment upon presentation has been deposited by certified mail in the United States mail system addressed to the issuer thereof either at the address shown on the instrument or the last known address for such person shown on the records of the bank upon which such instrument is drawn or within ten days after delivery or personal tender of the written notice to said issuer by the payee or his agent, shall be presumptive evidence of his intent to defraud.”

Although it is left to the discretion of the District Attorney to prosecute or not to prosecute after payment has been made, technically, all the elements of the crime had been satisfied and probable cause for the arrest of Mr. Onwukwe existed. Therefore, the element of lack of probable cause is also unsatisfied.

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

AFFIRMED.


author: PONDER, Judge.

text:
    BATON ROUGE ROOFING AND SHEETMETAL CONTRACTORS, INC., et al. v. EAST BATON ROUGE PARISH SCHOOL BOARD et al.
    No. 12908.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 27, 1979.
    George K. Anding, Jr., Baton Rouge, of counsel for plaintiff-appellant Baton Rouge Roofing & Sheetmetal Contractors, Inc., et al.
    John F. Ward, Jr., Baton Rouge, of counsel for defendant-appellee E.B.R. Parish School Board et al.
    Before ELLIS, CHIASSON and PONDER, JJ.
   PONDER, Judge.

Plaintiffs appealed the trial court’s denial of a declaratory judgment that the proposed action of defendant in reroofing some of its buildings was violative of the public bid law.

The issue is whether the reroofing comes within the exceptions of the public bid law allowing governmental bodies to maintain public works built and completed and to construct public property “not to include construction of buildings or other major projects.”

We affirm.

Defendants planned to reroof several school buildings. Plaintiffs and other contractors entered bids that were rejected as too high by defendant, which decided to have its own maintenance employees do the work. Plaintiffs filed suit for a judgment declaring the reroofing project to be public work, new construction or major project, and therefore to be let by public bid. LSA-R.S. 38:2211 et seq.

Defendants assert first that the work is maintenance within the meaning of LSA-R.S. 38:2212 (D), that reads, in part:

“In addition, this Section shall not apply for labor necessary and used in the maintenance of. public works built and completed.”

Unfortunately, the term maintenance is not defined in the public bid law. Appellants contend that the replacement of roofs should be classified as beyond maintenance and more nearly new construction. We do not agree.

Replace is defined by Webster’s International Dictionary, in part, as “to place again; to restore to a former place, position, condition, . . . .” Maintain is defined, in part, by the same source as “. . .to hold or keep in any particular state or condition, esp. in a state of efficiency or validity; to support, sustain or uphold; to keep up; not to suffer to fail or decline as to maintain in a certain degree of heat in a furnace, maintain a fence, health, peace, one’s reputation . . . .”

We do not recognize enough semantic difference in the terms to require that a placement of a roof be new construction and not maintenance. By reductio ad ab-surdum the reasoning would lead to the conclusion that the replacement of a single roof tile would be construction.

Defendant also claims the project is exempted from the necessity of letting by public bid because of LSA-R.S. 38:2212(E), which states:

“E. The provisions of this Section shall not prevent municipalities or other public bodies from using their own regular maintenance employees for labor necessary in construction or extension of municipally owned and operated public utilities or other public property, however, not to include construction of buildings or other major projects.”

There is no definition of new construction or major project in the act; but we find under the circumstances of this case the project does not constitute either. The nature of the work, reroofing, leads logically to the conclusion that it is not new construction. The size of the school board’s budget as compared with the cost of the project leads to the conclusion that the work is not a major project. See Assoc. General Contractors of America et al. v. Police Jury of Pointe Coupee Parish et al., 225 So.2d 300 (1st Cir. 1969).

The fact that the school board had let all previous roofing jobs by public bid is inconclusive. The board only recently approved the expansion of its maintenance crew to provide positions and equipment for roofers.

If the work otherwise came within the terms of the statute, a letting by public bid would be required if defendant elected not to do the work itself. If the work comes within the exception defendant may do the work with its own forces despite the previous letting of bids.

The well reasoned judgment of the trial court is affirmed at appellant’s costs.

AFFIRMED.


text:
    AMERICAN ROAD INSURANCE v. CHEROKEE INSURANCE COMPANY.
    No. 12915.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 27, 1979.

      Paul S. Fiasconaro, New Orleans, counsel for plaintiff.
    Emile L. Turner, Jr., New Orleans, counsel for defendant.
    Before ELLIS, CHIASSON and PONDER, JJ.
   PONDER, Judge.

Defendants appealed from a judgment for damages arising from a collision between a tractor trailer and a horse. The issues are the negligence of the owner of the animal and the contributory negligence of the driver of the tractor trailer.

We affirm.

The applicable law is found in LSA-R.S. 3:2803 which prohibits the owner from knowingly, willingly, or negligently permitting livestock to roam at large on certain highways. The scene of the accident was on such a highway.

The burden is on the owner of the animals to prove he did not knowingly, willingly or negligently allow his livestock to roam on the highway. Young v. Sentry Ins. Co., 315 So.2d 93 (3rd Cir. 1975), Cornish v. Ford, Bacon & Davis Const. Corp., 304 So.2d 361 (1st Cir. 1974).

The owner of the horse and his son testified as to the measures taken to keep the horses properly fenced and as to the adequacy of the latches they used. However, the son admitted that the horses had escaped the previous day and he had replaced the latch. We do not believe defendants have borne this burden.

The defendants also have the burden of proving the contributory negligence of the driver of the tractor trailer. Pointing to some discrepancies in testimony and to some skid marks in a photograph purportedly of the scene, defendants assert that they have borne this burden. We agree with the trial court’s conclusion that they have not. The discrepancies do not convict the driver of negligence. The skid marks in the photograph, even if the latter be admissible, were not proved to have been left by the tractor trailer involved in the collision.

For these reasons we affirm the judgment at appellant’s costs.

AFFIRMED.


text:
    LAMBERT GRAVEL COMPANY, INC. v. Kenneth WOMACK, Jr.
    No. 12924.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 27, 1979.
    Clayton M. Perkins, Jr., Kilbourne & Dart, St. Francisville, for plaintiff and ap-pellee.
    Wilson R. Ramshur, Willis & Ramshur, St. Francisville, for defendant and appellant.

      Before ELLIS, CHIASSON and PONDER, JJ.
   PONDER, Judge.

This appeal was docketed and scheduled for submission on October 29, 1979. All attorneys were notified. On that date appellant had not filed a brief or moved for a continuance; he was not present or represented.

Under Rule VII, Section 5(b) of The Uniform Rules, Courts of Appeal, this court ex proprio motu considers this appeal abandoned and therefore orders it dismissed with prejudice.

APPEAL DISMISSED.


text:
    In the Matter of the SUCCESSION of Joseph Sanders WASHINGTON.
    No. 12936.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 27, 1979.
    Rehearing Denied Feb. 20, 1980.
    Robert D. Downing, Caroline C. Norton, Baton Rouge, counsel for appellee Russell Washington.
    Curtis A. Calloway, Baton Rouge, counsel for appellants Josephine Jenkins Kyle and Ernestine Washington.
    Sargent Pitcher, Jr., Rachel P. Morgan, Baton Rouge, counsel for appellee Leole Washington King.
    Before ELLIS, CHIASSON and PONDER, JJ.
   PONDER, Judge.

This is an appeal from the granting of a new trial on a judgment of possession in succession proceedings.

Two legatees had a will probated and were sent into possession by the lower court. Petitioner, an alleged illegitimate son of the deceased, requested and was granted a new trial.

Legatees appealed and now claim petitioner could not ask for a new trial because he was not a party. They contend petitioner has used an improper procedure to assert his claim on the succession and should not be granted the relief sought.

The granting or denying of a motion for a new trial is a nonappealable judgment. Miller v. Chicago Insurance Company, 320 So.2d 134 (La.1975) and Jackson v. Watson, 360 So.2d 582 (La.App. 4th Cir. 1978).

It is an interlocutory decree and appellants have not alleged, much less proved, irreparable injury. La.C.C.P. Art. 2083.

We therefore dismiss the appeal on our own motion at appellant’s costs.

DISMISSED.


text:
    Leonard CHARRIER v. Louise Lessley BELL et al.
    No. 12949.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 27, 1979.
    J. Arthur Smith, III, Carlos E. Lazarus, Baton Rouge, counsel for plaintiff and ap-pellee.
    Fred G. Benton, Jr., Baton Rouge, counsel for defendants and appellant.
    Before ELLIS, CHIASSON and PONDER, JJ.
   PONDER, Judge.

The State of Louisiana appealed from the trial court’s holding that plaintiff was entitled to release himself against a litigious right purchased by the state.

The issues are:

1. The necessity of prompt demand to be released, and

2. The meaning of the term real price of La.C.C. Art. 2652.

We reverse and remand.

Plaintiff found a Tunica Indian burial place and took a large quantity of artifacts from the graves. He later filed a suit against the owners of the land to determine his rights to the artifacts. The state intervened asserting a right to the artifacts on a number of grounds. However, it negotiated a purchase of the land and the “right, title and interest” of the owners of the land to the artifacts. The settlement had been executed by all parties by June 27, 1978; a conference of the court and the litigants, to which plaintiff’s counsel was invited, was held.

The act of sale was executed on August 20, 1978. On September 7, a judgment-homologating the settlement was signed; a copy was served on the plaintiff. On September 21, 1978, plaintiff offered to settle with the state for $25,000.00 plus costs and expenses. He referred to his awareness of his right to redemption of a purchased litigious right. The case was partially tried on the merits for a full day on September 25. On October 6, the deposition of Alan Toth was taken. On December 11, the depositions of Drs. Steven Williams and Jeffrey P. Brian were taken in Massachusetts. On December 18, finally, the motion for litigious redemption was filed and ordered to be heard on January 8, 1979, the date set for continuation of the trial on the merits^ The court ruled that the right purchased by the state was a litigious one and that plaintiff could get himself released by paying $25,000.00 plus interest into court after the state refused to accept the offer.

In the early case of Leftwich v. Brown, 4 La.Ann. 104 (1849), the court said:

“But if, as the defendant has done in this case, he continues to contest the suit, raises difficulties as to the right of the plaintiff to recover his debt and protracts the litigation, he evidently defeats the very object of the law, and cannot avail himself of the provision which the law has established in his favor for the purpose of terminating litigation. To permit him to do it, would be to defeat the very object of the law.”

That is still the law of Louisiana. See Smith v. Cook, 189 La. 632, 180 So. 469 (1937); Crain v. Waldron, 210 La. 561, 27 So.2d 333 (1946); Clement v. Sneed Brothers, 238 La. 614, 116 So.2d 269 (1959); A. M. & J. Solari, Ltd. v. Fitzgerald, 150 So.2d 896 (4th Cir. 1963), writ ref. 244 La. 622, 153 So.2d 414 (1963).

We hold that the filing of a motion in December after being informed of the negotiation and pending sale in June and after further preparation and discovery work have been effected was not timely.

Moreover, another reason for our decision is the failure to pay the real price of the transfer required by C.C. Art. 2652.

The State of Louisiana paid the landowners a total of $175,000.00 for the land and the artifacts. By ascribing $1,000.00 per acre to about 150 acres and depending on the wording of the act of sale and the homologation thereof, the lower court held that the state had paid a total of $25,000.00 for the artifacts. It was also unquestioned and the court held that the state had given a broad warranty to the landowners. The court allowed the plaintiff to give to the state a warranty to hold the state free from liability on its warranty to the landowner.

We believe the trial court erred. There evidently was no effort to get the landowners to accept the plaintiff’s warranty in lieu of that given by the state and certainly the court could not decree that result against the landowners’ desires.

We believe, and hold, that the warranty given by the state was an integral part of the “real price” paid by the state and that the warranty by the plaintiff is not the equivalent of the warranty given by the state.

Plaintiff contends, and the lower court held, that he should not be prevented from getting himself released because of the different economic powers between him and the state. This argument is beside the point. The real price could be so high financially that the plaintiff could not pay it. Would he argue that he should be allowed to substitute his efforts for those of an artist who agreed to paint a portrait as payment for a litigious right?

Plaintiff does not have an absolute right to get himself released without paying to the transferee the “real price of the transfer”, whatever that price may be. The fact that Art. 2652 speaks of interest on the real price leads to the conclusion that it was intended to include only those transfers that were made in return for the payment of a certain amount in money.

For these reasons the judgment of the lower court is reversed at appellee’s costs and the case is remanded for further proceedings not inconsistent with this decision.

REVERSED AND REMANDED.

      . C.C. Art. 2652:
      “He against whom a litigious right has been transferred, may get himself released by paying to the transferee the real price of the transfer, together with the interest from its date.”


author: COVINGTON, Judge.

text:
    CARR OIL COMPANY, INC. v. DONALD G. LAMBERT CONTRACTOR, INC., et al.
    No. 12931.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 27, 1979.
    Rehearing Denied Feb. 20, 1980.
    Writ Refused April 18, 1980.
    Bernard E. Boudreaux, Jr., Bauer, Dar-nall, McNulty & Boudreaux, Franklin, for plaintiff.

      Charles F. Seemann, Jr., Deutsch, Kerri-gan & Stiles, New Orleans, for Maryland Casualty Co.
    Marshall W. Wroten, La. Dept, of Highways, Baton Rouge, for La. Dept, of Highways.
    Before COVINGTON, LOTTINGER and COLE, JJ.
   COVINGTON, Judge.

This is a suit for a money judgment by Carr Oil Company, Inc., based on the furnishing of petroleum- products to Donald G. Lambert Contractor, Inc., (Lambert Contractor), who had contracted with the State of Louisiana for the repair by asphalt overlay of Louisiana State Highway No. 317 (referred to as the Burns Point job), in St. Mary Parish, Louisiana. The contractor was bonded by Maryland Casualty Company, pursuant to the Louisiana Public Works Act, LSA-R.S. 38:2181, 2241 et seq.

The plaintiff claims $26,031.72 with legal interest, costs and attorney’s fees at 10% of the principal amount, alleging the liability of the contractor, the surety and the State. It appears that the contractor was adjudicated bankrupt, and the proceedings were pursued only against the surety and the State.

After trial on the merits, the lower court rendered judgment in favor of Carr against Maryland Casualty and the State for the full amount of the plaintiff’s claim of $26,-031.72; and, because the judgment was for the full amount of the claim, the plaintiff was also awarded 10% as attorney’s fees in accordance with LSA-R.S. 38:2246. The defendants have appealed. We affirm.

The jurisprudence is settled that for a claimant to hold the contractor, or surety, liable under LSA-R.S. 38:2241 et seq., he must prove that there was a privity of contract, or that he furnished labor or materials to the contractor or a subcontractor. Harvey Canal Towing Co., Inc. v. Gulf South Dredging Co., Inc., 345 So.2d 567 (La.App. 4 Cir. 1977); Richard and Gaudet v. Housing Authority of City of Lafayette, 323 So.2d 168 (La.App. 3 Cir. 1975), writ denied, 326 So.2d 337 (La.1976).

Carr contracted directly with the contractor (Lambert Contractor) on the construction project. We reach this conclusion, as did the trial court, after reviewing the evidence presented.

Tom C. Carr, president of- the plaintiff corporation, testified that he personally went to the job site to get the business of supplying petroleum products to the contractor. Mr. Carr discussed the business with Louis Barrett, who was in charge of the construction work for the contractor, and they entered into a verbal agreement under which Carr was to supply certain petroleum products, primarily diesel fuel, to the contractor. Under the agreement the contractor was to telephone in orders to Carr; and the supplies were to be delivered to the job site, at which time a written purchase order was to be given to Carr. In due course Carr was to send invoices to the contractor, which were then to be paid by the contractor. Subsequently, Carr’s delivery personnel returned with purchase orders bearing the heading of Lambert Industries, Inc. Upon Mr. Carr’s inquiry of Mr. Barrett, he was advised that Lambert Industries paid the bills for the contractor, and that all invoices should be sent to Lambert Industries. It was, however, confirmed that Carr’s contract was with Donald G. Lambert Contractor, Inc. Mr. Carr returned to his office, and so instructed his office personnel. The other witnesses and the business records corroborate the testimony of Mr. Carr. Nolan Louviere, Carr’s employee in charge of dispatching orders (receiving purchase orders and checking invoices), testified that Mr. Carr instructed him to send the bills to Lambert Industries and he carried out Mr. Carr’s instruction. Elizabeth B. Carr, bookkeeper for Carr, testified that her instructions were to send the invoices to Lambert Industries. The business records in evidence show that there was no consistency in the way the Lambert companies handled the purchase orders, invoices and other business records; for example, a purchase order issued by Donald G. Lambert Contractor, Inc. might be paid by Lambert Industries, Inc.; employees who signed purchase orders might use order forms of either Lambert company without regard to which one was their employer; job numbers of one company might appear on purchase orders of the other company.

In opposition to the claim of Carr, the defendants offered only the testimony (by deposition) of Clegg Strong, trustee in bankruptcy for the contractor, and Jack O’Malley, a former supervisor for the contractor. Mr. Strong stated that the business records of the two Lambert companies were mixed up and he was unable to determine which corporation was in possession of the records produced by the defendants. He knew nothing of the operations of the corporations prior to bankruptcy. Mr. O’Malley testified that the two Lambert companies had the same management, and that Louis Barrett was an employee only of the contractor.

Having established privity of contract, the plaintiff Carr is entitled to recover on his claim against the surety, Maryland Casualty. See Harvey Canal Towing Co., Inc. v. Gulf South Dredging Co., Inc., supra.

The evidence will not support the appellants’ contention that Carr was a material-man who supplied Lambert Industries who in turn supplied Lambert Contractor. The evidence clearly establishes that Carr contracted directly with Donald G. Lambert Contractor, Inc., the primary contractor on this public works contract, and that Maryland Casualty contracted with the contractor to be its surety on the contractor’s bond. There is no evidence that the contractor enlarged the bond in any way. The bond in question is purely statutory in the instant case. We find that the trial court properly fixed liability thereon by the bond’s provisions, construed with reference to the statute. See Louisiana Highway Commission v. McCain, 197 La. 359, 1 So.2d 545 (1941); Miller v. Bonner, 163 La. 332, 111 So. 776 (1927).

In view of the establishment of a contract between the materialman, Carr, and the contractor, Lambert Contractor, the rule that a materialman of a materialman cannot recover under the Public Works Act, Thurman v. Star Electric Supply, Inc., 307 So.2d 283 (La.1975), is inapplicable.

Moreover, the record reveals that Lambert Industries, Inc., also a bankrupt, possessed no truly separate identity from Donald G. Lambert Contractor, Inc., except that it was separately incorporated under Louisiana corporation law. Both corporations had offices in the 1800 block of Duncan Street in Kenner; business records of one was often in the office of the other; the plaintiff’s notice of the filing of its claim in the office of the Recorder of Mortgages, sent by certified mail, return receipt, was mailed to both corporations at the same address, 1800 Duncan Street, were received, and the return receipts bear the signature of the same person. It had the same managerial officers as Lambert Contractor. The directorate was identical, except for one officer. The agents for service of process were the same. Donald G. Lambert owned 98 out of 100 shares of stock outstanding in each corporation. The two corporations worked closely together in construction and construction materials work. On the Burns Point job both companies used land leased in the name of Lambert Industries.

In David Moore Development Company v. Higgins Industries, Inc., 163 So.2d 139 (La.App. 4 Cir. 1964), writ denied, 246 La. 580, 165 So.2d 481 (1964), the Court said:

“The jurisprudence of this state is well settled to the effect that a captive corporation cannot be used as a screen or shield behind which one may hide his true interest in a transaction.”

The next determination which this Court is called upon to make is whether or not Carr delivered the petroleum products to the contractor. Uncontradicted testimony presented by the plaintiff shows that the products were dispatched by Carr and delivered to the contractor as shown by purchase orders. A preponderance of the evidence shows that the contractor’s road equipment used on the project actually used both gasoline and diesel fuel from the fuel storage tanks, which were furnished by Carr under its agreement with the contractor, and which were placed some 450 feet from the roadway on a tract of land leased in the name of Lambert Industries. On this question, the trial court found that “delivery of the materials and supplies to the two storage tanks was delivery to the job site as contemplated by the jurisprudence interpreting the statute in question.”

This jurisprudence is to the effect that where the materialman establishes delivery of materials to the job site for the construction project, he has established his right to recover the value of such materials. Levingston Supply Company, Inc. v. D & M Mechanical Contractors, Inc., 211 So.2d 414 (La.App. 1 Cir. 1968).

In Levingston Supply Company, Inc. v. Great American Insurance Company, 225 So.2d 715 (La.App. 1 Cir. 1969), the Court found that the plaintiff (a supplier of certain plumbing materials) had traced the material from its reception by the representative of the subcontractor of the general contractor to the job site. The Court then said:

“We adhere to the pronouncement in Levingston Supply Company, Inc. v. Aetna Casualty and Surety Company (1960) La.App., 124 So.2d 357, that the furnisher of materials who establishes delivery of these materials on a job site has met all requirements of the statute [LSA-R.S. 38:2246] for recovery.”

In Levingston Supply Company v. Aetna Insurance Company, 124 So.2d 357 (La.App. 1 Cir. 1960), the Court stated:

“In our opinion it appears that the law is now well settled that a materialman who timely files a lien for materials furnished to a subcontractor is entitled to recover from the surety upon proof of actual delivery of the materials to the site and he is not required to additionally prove that the materials were, in fact, incorporated or used in the building.”

The case of Slagle-Johnson Lumber Company, Inc. v. Landis Construction Company, Inc., 379 So.2d 479 (La.1979), is factually distinguishable. That case involved lumber and nails used to construct wooden forms for pouring of concrete; they were not only not incorporated into the finished job, but lumber so used can, and usually is, reclaimed and used several times at different jobs. Some of the products involved in the instant case were also not the type of materials that were intended to be incorporated into the job; however, they were primarily petroleum products which were shown to have been furnished for use in machines used on the project. The defense in no way overcame the presumption flowing from delivery, while the defense in the Slagle-Johnson case did.

The plaintiff also seeks attorney’s fees as provided in LSA-R.S. 38:2246. When the full amount of the claim is recov-. ered, and amicable demand for payment of that amount has been made upon the principal and surety and payment is not made within 30 days of that demand, the judgment must allow 10 percent on the amount recovered as attorney’s fees. Normand Company, Inc. v. Abraham, 176 So.2d 178 (La.App. 4 Cir. 1965). The evidence shows that all requirements of the statute have been met, there was proper notice to the. defendants, the lien was timely filed followed by timely litigation and the full amount claimed has been awarded; consequently, the trial court properly allowed an award of attorney’s fees.

We also find, as did the trial court, that the State is solidarily liable with the defendant surety, Maryland Casualty Company, for two reasons: first, the project was started- more than 30 days before the recordation of the public works contract and. the bond; work was begun in June, 1975; the contract and bond were filed in the office of the Clerk of Court in St. Mary Parish on September 25,1975; but Carr had made its first delivery of petroleum products on July 16, 1975; all in violation of LSA-R.S. 38:2244; secondly, in violation of LSA-R.S. 38:2242, the balance of the proceeds owed under the public works contract was paid by the State notwithstanding the timely filing of the lien and notice by Carr. See Bogue-Chitto Gravel Co., Inc. v. Police Jury of Parish of Lafourche, 11 La.App. 246, 122 So. 505 (La.App. 1 Cir. 1929).

For the reasons assigned, the judgment appealed is affirmed at the appellants’ costs.

AFFIRMED.


text:
    Wilbert THOMAS, Jr. v. DeJOHN’S PLUMBING AND HEATING CO., INC.
    No. 12942.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 27, 1979.
    Athena B. Piedrahita, Baton Rouge, for plaintiff-appellant.
    Frank H. Dickinson, Baton Rouge, for defendant-appellee.
    Before COVINGTON, LOTTINGER and COLE, JJ.
   COVINGTON, Judge.

This is a suit for penalty wages and attorney’s fees for an alleged failure of plaintiff’s employer to comply with LSA-R.S. 23:631 et seq. by not paying the employee one day’s wages, the amount of $40.40, when the employment with defendant, De-John’s Plumbing and Heating Co., Inc., was terminated, upon the plaintiff’s demand. The facts concerning the termination and demand were in dispute, but the trial judge resolved them in favor of the defendant and denied plaintiff’s claim. The plaintiff, Wilbert Thomas, Jr., has appealed. We affirm.

To recover penalties under LSA-R.S. 23:631 and 23:632 for an employer’s failure to pay wages owed to an employee following resignation or discharge, the employee must prove the wages were due and owing, that demand for payment was made at the place where he was usually paid, and that the employer failed to pay following the demand. The burden of proof also rests upon the employee to show by a preponderance of the evidence the facts which establish his claim for the award of penalties. Harrison v. First National Funeral Homes, Inc., 244 So.2d 102 (La.App. 3 Cir. 1971), writ not considered, 258 La. 345, 246 So.2d 195 (1971).

The plaintiff testified that he and his employer had an argument on September 13, 1977, and that DeJohn had ordered him off the premises. He stated further that later that day he had returned for his wages, but DeJohn refused to pay him the one day’s pay which was owed him. (R 160-162) Thomas testified that he then went to the union building and that Oliver Jones, the union representative, phoned De-John in Thomas’s presence, but that Jones also got a refusal from DeJohn. (R 162) Jones only remembered telephoning DeJohn on one occasion, and that DeJohn disputed owing Thomas because Thomas owed De-John for some appliances, i. e., a washer and dryer. (R 147-156) Thomas also offered the testimony of his brother, Lionel Thomas, who testified only to working with Wilbert Thomas one day on DeJohn’s camp, for which Lionel received $10.00, but Wilbert was not paid anything in money as he was working in payment of appliances he had got or was getting from DeJohn. Lionel gave no testimony concerning the termination or demand of Wilbert. (R 183)

The other witness for Thomas was his former lawyer, John R. Keogh. (R 175) In essence, Mr. Keogh testified that his services were limited to writing a demand letter to DeJohn, in response to which he received a telephone call from DeJohn, and a check ($40.40 less $2.36 in deductions or $38.04 net) from DeJohn on October 19, 1977. (R 177)

On all material points the plaintiff’s evidence was disputed by DeJohn. DeJohn and his wife, Jeanette DeJohn, who worked in the office at the plumbing business, denied that Thomas demanded his wages. They also disputed Thomas’s version of his last day at work, and denied owing Thomas any money. (R 194, R 212)

We agree with the trial judge that the plaintiff has failed to prove his claim by a preponderance of the evidence.

Moreover, the record reflects that DeJohn was justified in believing that he could deduct the value of the appliances he had transferred to Thomas from any wages he owed Thomas. DeJohn proved a series of advances with corresponding deductions. (R 213)

Since the statute is penal in nature, it must be strictly construed. Penalties will not be allowed if the employer has equitable justification in not paying wages. If it is determined that a bona fide dispute as to wages due existed at the time of the refusal to pay, no penalty wages will be awarded. Berteau v. Wiener Corp., 362 So.2d 806 (La.App. 4 Cir. 1978), writ denied, 365 So.2d 242 (La.1978).

For the employee to recover, the employer must have been motivated by bad faith or must be found to have acted in an “arbitrary or unreasonable” manner. It does not appear from the record that there was bad faith on the part of DeJohn, or that he acted in an “arbitrary or unreasonable” manner in his refusal to pay Thomas. On the contrary, the record shows that there was a bona fide dispute between the parties as to unpaid wages, because the employer considered that the employee still owed him for the appliances. A reasonable basis existed for resisting liability; therefore, the Court correctly denied penalty wages.

The plaintiff's claim is not well-founded, so he is not entitled to recover attorney’s fees. See Carriere v. Pee Wee’s Equipment Company, 364 So.2d 555 (La.1978). Myres v. Lighthouse Life Insurance Company, 368 So.2d 805 (La.App. 2 Cir. 1979).

For the reasons assigned, the judgment appealed is affirmed at the appellant’s costs.

AFFIRMED.

      . This suit was filed on January 13, 1978, by an attorney not at any pertinent time affiliated with Mr. Keogh, although the latter referred the plaintiff to her.


text:
    William BRANNAN v. Glenn L. BABIN et al.
    No. 12956.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 27, 1979.
    Charles N. Malone, Baton Rouge, of counsel, for plaintiff-appellee, William Brannan."
    > Joel B. Dickinson, Baton Rouge, of counsel, for defendant-appellant (plaintiff-in-rule), Effie C. LaFargue.
    Before COVINGTON, LOTTINGER and COLE, JJ.
   COVINGTON, Judge.

Plaintiff-defendant in rule, William Brannan, brought a suit against Glenn L. Babin and Stanley A. LaFargue, to recover the principal sum of $30,000.00, allegedly fraudulently obtained by Babin and La-Fargue from Brannan. The trial judge rendered judgment in favor of Brannan, which was affirmed on appeal, with the Court of Appeal holding that Brannan had established that Babin and LaFargue had committed “a tort of intentional misrepresentation,” Brannon (Brannan) v. Babin, 366 So.2d 955 (La.App. 1 Cir. 1978).

In due course, Brannan sought to execute his judgment against certain immovable property belonging to the community of acquets and gains existing between Stanley A. LaFargue and Effie C. LaFargue, which was situated in the Parish of East Baton Rouge, Louisiana. The judicial sale of the subject property was set for April 25, 1979. In the meantime, the plaintiff in rule, Effie C. LaFargue, sought injunctive relief to prevent the sale of the subject property. The defendant in rule, William Brannan, filed an exception of no cause of action, which the trial court sustained based on the case of Corpus Christi Parish Credit Union v. Martin, 358 So.2d 295 (La.1978), cert. den. 439 U.S. 897, 99 S.Ct. 261, 58 L.Ed.2d 245 (1978).

Following the dismissal of the proceedings for injunctive relief and prior to the judicial sale, Stanley A. LaFargue paid the judgment in full, so that the judgment creditor, William Brannan, no longer has a judgment upon which to execute. Because the judgment against LaFargue has been satisfied, no practical result can follow from any action we might take on appeal. It is well established that appellate courts do not give opinions on moot questions. Behler v. Louisiana State Racing Commission, 251 La. 959, 207 So.2d 758 (1968). Bradley and Braud, Inc. v. Canady, 342 So.2d 1184 (La.App. 1 Cir. 1977). Accordingly, the appeal is dismissed at appellant’s costs.

APPEAL DISMISSED.


author: LOTTINGER, Judge.

text:
    Oliver MARTIN, Jr. v. C. Paul PHELPS et al.
    No. 12954.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 27, 1979.

      Oliver Martin, Jr., in pro. per.
    Marvin H. Bruce, Louisiana Dept, of Justice, Baton Rouge, of counsel, for defendants-appellees C. Paul Phelps, et al.
    Before COVINGTON, LOTTINGER and COLE, JJ.
   LOTTINGER, Judge.

This is a suit by Oliver Martin, an inmate at Louisiana State Penitentiary at Angola, challenging the constitutionality of the prison’s system of furnishing legal assistance to inmates. Martin appeals from an adverse judgment by the trial court.

The facts are not in dispute. Plaintiff is housed at Camp D, one of the new out-camps at Angola located a few miles from the main prison complex. For security and other reasons, Camp D inmates are not allowed direct access to the prison law library which is located in the main prison. Instead, these prisoners are given the option of either requesting 3 books at a time for a one week period or having a counsel substitute assigned to their camp handle the research and writing on their particular legal problems.

Plaintiff claims that the Angola system denying him direct access to the library violates his constitutional right to meaningful access to the courts. He also contends that he is being denied equal protection of the law because inmates of his classification status who are housed at the main prison are allowed to use the law library at designated times. Finally, he asserts that the counsel substitutes—inmates who show a certain proclivity towards the law—are insufficiently trained and educated to meet the legal needs of the outcamp inmates, thereby violating the prisoners’ right to meaningful access to the courts.

One of the rights encompassed within the due process clause of the Fourteenth Amendment is the right of meaningful access to the courts by prisoners. Bounds v. Smith, 430 U.S. 817, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977); Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). We must decide whether Angola’s system of legal aid passes constitutional muster.

In Bounds, the United States Supreme Court held that prison officials must provide inmates with adequate law libraries or adequate assistance from persons trained in the law to satisfy the constitutional right of access. 97 S.Ct. at 1498. The court, however, carefully avoided cementing any standard into law. It opted instead to give state prison authorities leeway to experiment with alternative methods of providing legal aid to inmates. In encouraging “local experimentation” (id. at 1500), the court did not foreclose a system which uses a group of learned inmates to help other inmates with their legal problems. Meaningful access being the touchstone, the court indicated that any system which provides reasonable means for prisoners to have their legal gripes adequately aired would withstand a constitutional challenge.

In light of Bounds and other federal decisions concerning prisoners’ right of access, see, especially, Stevenson v. Reed, 391 F.Supp. 1375 (N.D.Miss.1975), affm. per curiam 530 F.2d 1207 (5th Cir. 1976), cert. den. 429 U.S. 944, 97 S.Ct. 365, 50 L.Ed.2d 315 (1976), we hold that plaintiff has been provided with adequate alternatives so as to foreclose any right he might otherwise have had to direct access to the prison’s law library. If plaintiff wants to do his own research he can have the counsel substitute at his outcamp procure the books he needs from the library. If he feels that he lacks the time or ability to handle his legal problems, he can have the group of “jailhouse lawyers” research and write the case.

Plaintiff has failed to prove his claim that the inmates who conduct legal research lack sufficient training and knowledge to do their jobs adequately. The sparse record in this case bears little evidence regarding this contention, and plaintiff’s well written brief belies his claim of inadequate legal resources.

The fact that some prisoners housed at the main complex have direct access to the law library does not necessarily mean that plaintiff is being denied equal protection of the law from a constitutional standpoint. Plaintiff is treated differently, not because of his status, but because of the geographical location of the outcamp in which he is housed. The discrimination is not arbitrary or capricious. It results because of a reasonable administrative interest in security and other prison objectives. We hold, therefore, that plaintiff’s equal protection claim lacks merit.

In sum, we believe Angola’s administrators have provided an adequate means for all inmates to air their legal gripes in a meaningful manner. Literate and illiterate inmates alike are given a method to get their problems before a legal tribunal in this state.

Therefore, for the above and foregoing reasons the decision of the trial court is affirmed at appellant’s costs.

AFFIRMED.