author: DOMENGEAUX, Judge.

text:
    Augusta GUILLORY, Plaintiff-Appellant, v. Dr. D. H. BULLER and Dr. Tyler J. Kent, Defendants-Appellees.
    No. 8104.
    Court of Appeal of Louisiana, Third Circuit.
    March 11, 1981.

      Simmons & Nelson, Otha C. Nelson, Baton Rouge, for plaintiff-appellant.
    Pugh & Boudreaux, Charles J. Bou-dreaux, Sr., Lafayette, for defendants-ap-pellees.
    Before DOMENGEAUX, STOKER, and DOUCET, JJ.
   DOMENGEAUX, Judge.

This is a medical malpractice suit brought by Augusta Guillory against Dr. Daniel H. Buller and Dr. Tyler T. Kent in connection with two surgical procedures performed on the plaintiff’s left armpit by Doctors Buller and Kent on May 30th and July 20, 1978, respectively.

On May 29, 1978, plaintiff was admitted to Opelousas General Hospital by her doctor, Dr. August C. Terrence, for treatment of an infection in her left armpit. At Doctor Terrence’s request, Doctor Buller, a general surgeon, examined plaintiff the next day, May 30th, and diagnosed her condition as the disease of axillary hidradenitis sup-purativa with an abscess formation. In layman’s terms, Doctor Buller described plaintiff’s condition as “a nest of boils in the armpit.” The condition was also described as an infection of the sweat glands in the armpit.

Doctor Buller explained that before he could provide treatment that would cure plaintiff of her disease, the infection had to be cleared. To achieve this result, he proceeded to drain the pus from the abscess. The next day, the plaintiff was discharged from the hospital and was told to return at a later date so Doctor Buller could check her progress.

Doctor Buller next examined plaintiff on July 18, 1978, and determined that her infection had been cleared by the minor surgery performed on May 30th. He felt that the chronic or long term phase of her disease would best be treated by removal of all of the diseased tissue and so recommended this to plaintiff. He also referred to her Doctor Kent for the surgery because he felt Doctor Kent was more capable than he to perform the particular operation that plaintiff needed.

On July 20, 1978, Doctor Kent removed the entire hair-bearing portion of plaintiff’s left armpit, an area measuring 9 centimeters by 4 centimeters (about 6 square inches). The surgery was designed to rid plaintiff of her disease. He then closed the wound by suturing the remaining skin together. He allowed plaintiff to wear a sling to immobilize her arm while the skin healed together. Plaintiff was discharged from the hospital on July 24th but returned on July 27th, August 3rd, and August 8th, during which visits Doctor Kent performed piecemeal removal of the sutures, a common procedure for this type of operation. Doctor Kent also examined plaintiff on August 22nd and encouraged her to use and exercise her arm in order to restore its mobility.

Doctor Kent saw the plaintiff for the last time on September 26,1978. At this examination he was dissatisfied with the progress she had made on her own and recommended that she undergo physical therapy. However, instead of following his advice (she did not keep the physical therapy appointment made by Doctor Kent), she sought the advice of other doctors.

In her suit, filed May 3, 1979, plaintiff alleged that these other doctors advised her that corrective surgery is needed to correct the surgery performed by Doctors Buller and Kent. Apparently, plaintiff was still having difficulty in lifting her arm upward from her side, a problem she began experiencing after the July 20th surgery. In her petition, plaintiff alleged:

“VII.
Plaintiff avers that her resulting injury would not have occurred if all defendants had exercised the degree of care, skill and knowledge ordinarily exercised by physicians, registered and licensed practical nurses in this area and throughout the United States and as a result of their individual and collective failures plaintiff suffered damages that would not otherwise have occurred.
VIII.
Alternatively, plaintiff avers and specifically pleads the doctrine of res ipsa loquitur as to the defendants.”

Trial on plaintiff’s suit was held April 21 and April 22, 1980. Following plaintiff’s evidence, the defendants moved for, and were granted, a directed verdict. From that judgment granting the directed verdict plaintiff has appealed. We affirm.

In Campbell v. Mouton, 373 So.2d 237 (La.App. 3rd Cir. 1979), this Court adopted the following standard to determine whether a motion for a directed verdict should be granted:

“On motions for directed verdict and for judgment notwithstanding the verdict the Court should consider all of the evidence — not just that evidence which supports the non-mover’s case — but in the light and with all reasonable inferences most favorable to the party opposed to the motion. If the facts and inferences point so strongly and overwhelmingly in favor of one party that the Court believes that reasonable men could not arrive at a contrary verdict, granting of the motions is proper. On the other hand, if there is substantial evidence opposed to the motions, that is, evidence of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions, the motions should be denied, and the case submitted to the jury.”

After considering all the evidence, we believe that reasonable men could not arrive at a verdict contrary to the defendants, therefore we affirm the judgment granting defendants a directed verdict.

A plaintiff’s burden of proof in a medical malpractice suit is set out in La.R.S. 9:2794:

“A. In a malpractice action based on the negligence of a physician licensed under R.S. 37:1261 et seq., or a dentist licensed under R.S. 37:751 et seq., the plaintiff shall have the burden of proving:
(1) The degree of knowledge or skill possessed or the degree of care ordinarily exercised by physicians or dentists licensed to practice in the state of Louisiana and actively practicing in a similar community or locale and under similar circumstances; and where the defendant practices in a particular specialty and where the alleged acts of medical negligence raise issues peculiar to the particular medical specialty involved, then the plaintiff has the burden of proving the degree of care ordinarily practiced by physicians or dentists within the involved medical specialty.
(2) That the defendant either lacked this degree of knowledge or skill or failed to use reasonable care and diligence, along with his best judgment in the application of that skill, and
(3) That as a proximate result of this lack of knowledge or skill or the failure to exercise this degree of care the plaintiff suffered injuries that would not otherwise have been incurred.”

The statute also provides that injury alone does not raise a presumption of the physician’s negligence. Also, by its own language, R.S. 9:2794 does not apply if the doctrine of res ipsa loquitur is found to be applicable. However, we find for reasons explained later that the doctrine of res ipsa loquitur does not apply to the instant case.

In an effort to meet her burden of proof plaintiff called as witnesses the defendants, under cross-examination; Doctors Edgar P. Breaux, Joseph G. Patton, and Gregory M. Savoy, all of whom are general surgeons; and Doctor John Finley, a plastic surgeon.

Plaintiff also called Doctor Terrence and some lay witnesses including herself. However, in determining whether or not the defendants possessed the requisite degree of knowledge or skill or whether they failed to exercise reasonable care and diligence, this Court is guided by the views and opinions of expert witnesses who are members of the medical profession and who are qualified to testify on the subject. Thibodeaux v. Aetna Casualty and Surety Company, 216 So.2d 314 (La.App. 3rd Cir. 1968); Lauro v. Travelers Insurance Company, 261 So.2d 261 (La.App. 4th Cir. 1972), writ denied, 262 So.2d 787 (La.1972). Those qualified to testify on the subject, other than the defendants, were Doctors Breaux, Patton, Savoy, and Finley.

Doctor Breaux, a general surgeon in Lafayette with 32 years of experience, examined plaintiff on September 26, 1978, which was the date that Doctor Kent last saw plaintiff. Doctor Breaux testified that as of September 26th, plaintiff probably would have regained normal use of her arm and shoulder if she would have undergone physical therapy. In fact, she was given an appointment by Doctor Breaux to see a physical therapist on October 2, 1978, but she did not show up for the appointment.

Doctor Breaux next examined plaintiff during the trial on April 21, 1980. At this latter time he felt that Z-plasty followed by physical therapy would be the quickest way to rehabilitate her.

Doctor Breaux read the operational reports prepared by Doctors Buller and Kent after their respective surgical procedures of May 30th and July 20, 1978. He testified that he would have performed the operations exactly as defendants performed them.

Doctor Patton, a general surgeon in Opel-ousas for 17 years prior to trial, saw plaintiff on September 28, 1978, and diagnosed her condition as contracture of the axilla following surgery for what he thought was chronic recurrent hidradenitis. Plaintiff indicated to him that she wanted immediate relief from her condition so he told her that Z-plasty surgery would provide immediate relief. However, Doctor Patton testified that if she had been his patient he would have used physical therapy on her arm for 6 to 8 weeks following his examination on September 28th. If, after this time, plaintiff’s condition had not improved or her arm had not returned to a relatively normal range of motion, then he would have suggested that Z-plasty surgery be done.

Doctor Patton read the two operational reports and felt that Doctor Buller and Doctor Kent performed good competent surgery based on the reports. He opined that the formation of scar contracture did not create an inference in his mind that the surgeon was negligent. In Doctor Patton’s opinion, plaintiff’s arm was in its present condition because she did not perform her physical therapy properly.

Doctor Savoy of Mamou, a general surgeon with 7 years experience, termed Doctor Kent’s surgical procedure and method of managing plaintiff’s condition “absolutely satisfactory.” Prior to trial he examined plaintiff only once on October 5, 1979, and felt that Z-plasty surgery might be the only thing to help her. She complained of pain when she attempted to lift her arm at a greater distance than 90 degrees. He attributed this complication to the way her body makes scar tissue (and observed that she had a contracture of her scar). Doctor Savoy testified that there was no way he, as a general surgeon, could have determined prior to surgery that this complication would occur. Even if he had detected the problem at the earliest possible time — 6 weeks after surgery — he would have recommended physical therapy initially, as Doctor Kent had done.

Doctor Savoy also read the two surgical reports and thought the procedures used were standard; he felt Doctors Kent and Buller handled the disease as any competent general surgeon would have. The fact that plaintiff subsequently developed some scar contracture which apparently restricts her from lifting her arm did not indicate to him that her doctors were negligent in any way.

Doctor John Finley, a plastic surgeon with Ochsner Clinic in New Orleans, saw plaintiff on June 11,1979, about 8V2 months after plaintiff last saw Doctor Kent. At that time he felt a skin graft or Z-plasty surgery might help plaintiff. However, at the trial he indicated that he was hesitant to say that plaintiff needs Z-plasty surgery. He also felt the surgical approach used by the defendants was a good sound approach and was in accordance with good medical standards. We note that Doctor Finley had performed this same operation about ten times.

All the surgeons who testified for plaintiff felt the defendants had performed competent surgery. Those who recommended Z-plasty did so because it would afford plaintiff immediate relief from the discomfort of not having full use of her left arm; they did not recommend it to correct the surgery performed by Buller and Kent. The expert evidence is overwhelming and uncontradicted that plaintiff’s failure to recover as expected was not due to any negligence on the part of Doctors Buller and Kent. Instead, the doctors agreed her present disability was probably due to the way her body forms scar tissue, an unpredictable and uncontrollable phenomenon, and the fact that plaintiff did not undergo any physical therapy, a fact which she admitted at trial, even though it had been prescribed by Doctor Kent, Doctor Breaux, and a Baton Rouge doctor who did not testify. Since plaintiff failed to produce any expert testimony tending to establish negligence on the part of Doctors Buller and Kent, or a failure on their part to meet the required standard of knowledge, skill, and care in this case, we must conclude that plaintiff failed to overcome the burden of proof imposed by La.R.S. 9:2794. Consequently the granting of a directed verdict in favor of the defendants was proper.

RES IPSA LOQUITUR

Plaintiff argues that the doctrine of res ipsa loquitur applies. We disagree. The doctrine of res ipsa loquitur would be appropriate only if the body of proof establishes or suggests that the alleged negligence of the defendants excludes every other reasonable hypothesis as to the cause of plaintiff’s problem. In other words, the rule applies when the facts shown suggest the negligence of the defendant as the most plausible explanation of the injury. Helms v. St. Paul Fire & Marine Insurance Co., 289 So.2d 288 (La.App. 3rd Cir. 1974). In the instant case, none of the facts shown suggest that the defendants’ negligence was the cause of plaintiff’s injury. Rather, the facts suggest that plaintiff’s injury was caused by the way her body forms the scar tissue, a phenomenon over which the surgeon has no control and cannot anticipate, and the fact that plaintiff absolutely failed to undergo the prescribed regimen of physical therapy. Hence, the principle of res ipsa loquitur does not apply in the instant case. See also Walker v. Union Oil Mill, Inc., 369 So.2d 1043 (La.1979); Hancock v. Safeco Insurance Company, 368 So.2d 1162 (La.App. 3rd Cir. 1979), writ denied, 369 So.2d 1377 (La.1979); Sugulas v. St. Paul Insurance Company, 347 So.2d 855 (La.App. 3rd Cir. 1977).

INFORMED CONSENT

On several occasions during the trial, plaintiff’s counsel attempted to raise the issue of informed consent through his questioning of the witnesses. On every occasion, the defendants objected on the basis that the plaintiff’s questioning was an attempt to expand the pleadings. The district court sustained all of defendants’ objections.

Plaintiff argues that the trial court erred in disallowing any evidence tending to show that the defendants failed to inform plaintiff beforehand of the extent of her surgery, the risks involved, and the possible complications which might result after the operation. Plaintiff argues that she would not have consented to undergoing the operation had she known the size of the area to be excised, and if she had been forewarned of the possibility that she would lose the use of her arm. We think the court’s decision was correct.

Nowhere in plaintiff’s petition did she allege that Doctor Buller or Doctor Kent failed to inform her of the extent of the surgery, nor did she allege that she would not have undergone the surgery had she been adequately informed. Plaintiff alleged only that her injury would not have occurred if the defendants had exercised the degree of care, skill, and knowledge ordinarily exercised by physicians in the area. Alternatively, plaintiff pled the doctrine of res ipsa loquitur. Thus, plaintiff’s petition did not raise the issue of informed consent.

Under proper circumstances proof beyond the pleadings, even if objected to, may be admitted and considered when permission to amend the pleadings is requested and granted. La.C.C.P. Art. 1154. However, plaintiff did not request permission of the court to amend the pleadings to confirm to the evidence she wished to introduce with respect to the issue of informed consent. Defendants’ timely objections, coupled with plaintiff’s failure to move for an amendment of the pleadings is fatal to an issue (here, informed consent) not raised by the pleadings. Wanda Petroleum Company v. Mac Drilling, Inc., 353 So.2d 474 (La.App. 3rd Cir. 1977), writ denied, 355 So.2d 258 (La.1978).

DECREE

For the above and foregoing reasons the judgment of the district court is affirmed. All costs are assessed against the plaintiff, Augusta Guillory.

AFFIRMED.

      . Doctor Kent explained that the skin in the armpit is usually very loose and flexible. Following an operation in which much of this skin is removed, and where the skin which remains is then sewn together, this skin is tight and inflexible because it has been stretched to occupy the space of the removed skin. Thus, the arm cannot be easily raised following the operation. Only by moving and exercising the arm, which movement has a tendency to further stretch the skin, will the patient regain full range of motion.

      . Without explicitly saying so, the Louisiana Supreme Court has apparently approved the standard adopted by this Court in Campbell v. Mouton, supra. See Breithaupt v. Sellers, 390 So.2d 870 (La.1980).

      . Z-plasty is a technique for lengthening contracted scar tissue.

      . Doctor Breaux testified that the surgeon usually dictates his report on the same day as the operation. He said that he dictates his reports immediately after surgery.


source: Caselaw Access Project

author: LOTTINGER, Judge. EDWARDS, Judge,

license: Public Domain

text:
    J. Douglas STEPHENSON v. Linda Carr STEPHENSON.
    No. 13754.
    Court of Appeal of Louisiana, First Circuit.
    March 16, 1981.
    Rehearing Denied May 6, 1981.
    Writ Granted June 22, 1981.

      John A. Lieux, Gonzales, for defendant and appellee.
    Ralph D. Hillman, Thibodaux, for plaintiff and appellant.
    Before LOTTINGER, CHIASSON, EDWARDS, PONDER and COLE, JJ.
   LOTTINGER, Judge.

This is a suit for divorce and child custody filed by J. Douglas Stephenson against his wife, Linda Carr Stephenson. The trial court rendered a divorce judgment in favor of the husband on grounds of adultery and granted custody of the 4-year-old child to the defendant mother. The plaintiff-husband appeals the custody award.

Douglas and Linda were married on November 10,1973, in Indiana. One daughter, Candice Ann, was born of the marriage. The couple moved to Louisiana in early March of 1974 and moved four or five times since then before finally settling in Prairie-ville.

In January, 1979, Mr. Stephenson moved to Thibodaux, Louisiana, but his wife remained in Prairieville. The record indicates that Mrs. Stephenson committed a number of acts of adultery while she and her husband were married, and that her husband committed at least one act of adultery at a “bump and grind” party held at their trailer home about five years prior to trial. After becoming separated in fact in early 1979, Mrs. Stephenson began dating another man and moved into his trailer with her daughter in June of 1979. Each spouse accused the other of generally refusing to have marital relations during the last two years of their marriage.

The preponderance of the testimony indicates that Mrs. Stephenson has taken good care of her young daughter and has supplied her basic needs of food, clothing and shelter. The record also shows that should Mr. Stephenson get custody of the child, he will move the child with him to Indiana where he, his parents and his former wife’s parents will share responsibilities for rearing the child.

In his reasons for judgment at the conclusion of the divorce and temporary custody proceeding, the trial judge said:

“There is no doubt about the wife’s adul-try [sic] which was freely admitted. It is also apparent that the Court cannot permit the custody to remain in the wife under the present circumstances. However, the Court feels that it would be to the best interest and welfare of the child if the custody could be continued in the mother.
“Therefore the Court will continue the temporary custody in the mother but will award the permanent custody to the father unless within the next six weeks she either establishes a domicile separate and apart from the man with whom she is presently living and conducts herself in a manner which is appropriate for the rearing of a small child or marries the man in question.”

Testimony at the subsequent hearing for permanent custody showed that Mrs. Stephenson’s paramour had moved out of the trailer but that they had seen each other on occasion and that they planned to marry on the day of the permanent custody hearing. The trial judge awarded permanent custody to the mother. In his written reasons for judgment, he recited her testimony of her intention to marry her boyfriend as soon as the boyfriend obtained his divorce. The trial judge checked the records in the clerk of court’s office some three days after the hearing to prove that the marriage had indeed taken place. The trial judge stated that he initially granted temporary custody to the mother because there was “no evidence that any impropriety was conducted in the sight or hearing of the child, simply that her mother and the man in question lived together under the same roof while the child was also present in the household.”

In appealing, the plaintiff argues strenuously that the trial court erred in finding that the best interest of the child would be served by granting custody to the wife.

Child custody cases are never easy. This is particularly true when, as in this case, the mother lives openly with a man not her husband while a child of tender years is present. The trial judges of this state have a grave responsibility to see to it that justice is done and that the best interests of the child are preserved. Because the trial judge must view the witnesses, listen to their testimony, detecting sincerity or insincerity, and perhaps even speak with the child or children involved, a great deal of discretion is accorded him, and the appellate courts give great weight to his decision. However, the great weight given trial court decisions in child custody matters does not mandate an abrogation of the constitutional review imposed upon the appellate courts.

The appellant-husband cites Schexnayder v. Schexnayder, 371 So.2d 769 (La.1979), in addition to several other cases. In Schex-nayder the Supreme Court reversed the court of appeal and the trial judge, both of whom had awarded custody to the mother. In that case the mother had had an affair for some time outside of her home with a man of a different race. During her affair the care rendered to her children suffered. In reversing the lower courts and awarding custody to the father, the Supreme Court said:

“However, when the mother has consistently engaged in a course of open and public adultery in defiance of generally accepted moral principles and in disregard of the embarrassment and injuries which might be sustained by the children, then the court is justified in depriving her of the care of the children, and in awarding custody to the father or to some other party lawfully entitled to it. [Citations omitted.]
“The purpose for the above jurispruden-tially established rule is not to punish the mother but to protect the children. We recognize that in many cases infrequent indiscretions may be borne out of human frailty rather than an absence of moral character. In such cases, the adulterous affair will not mitigate against a person’s claim for custody. However, in cases where a person consistently and over a period of time engages in a course of open and public adultery in defiance of generally accepted moral principles in total disregard of any embarrassment and injuries which might be sustained by the children of the marriage, past misconduct forms an important consideration in determining the present suitability of a parent. * * * We believe this because common . knowledge and experience teaches that a child learns by example, especially from its parents, * * * and that it is a parent’s duty to demonstrate to his or her children qualities of good moral character. Consequently, parents fail in that duty when they openly and notoriously display an utter disregard for moral and social values in the area of sexual fidelity towards each other and thus forfeit the moral leadership owed their children.”

We believe the activities of the mother in the instant case are more analogous to those of the mother in Schexnayder as compared to the activities of the mother in the recent Supreme Court case of Cleeton v. Cleeton, 383 So.2d 1231 (La.1979). The troublesome area presented in this case, however, is that the child herein was always properly cared for and that the husband failed to properly financially support the mother and child after separation in fact occurred.

The record is clear that if the father is granted custody of his child he is willing and able to provide a good home for the girl. His mother testified that she is willing and able to assist her son in providing a good home for the child when the father and child move to Indiana. Only one instance of infidelity was shown on the part of the husband-father and this occurred five years ago.

We are convinced that the trial judge clearly erred and abused his discretion in awarding the custody of this child to the mother. Though the mother adequately provided for the physical needs of the child, we are of the opinion that the father is able to do the same. Additionally, the father will present to the child a better moral atmosphere within which to be reared.

One of the primary reasons — if not the reason — the trial court awarded permanent custody to the mother was that the mother had married her boyfriend immediately following the permanent custody hearing. As indicated above, the trial court checked the records of the clerk of court’s office some three days after the custody hearing to confirm that the marriage had taken place. The trial court erred in going outside of the record to determine that the marriage had taken place. As matters stood at the time of the permanent custody hearing, the mother had not married her boyfriend but was planning to marry him when the boyfriend’s divorce became final that day. As the evidence stood before the trier of fact at the custody hearing, the mother was unmarried.

Even conceding, for the sake of argument, that the fact of the marriage should have been considered, we do not agree that the marriage alone proves that the mother has changed her moral conduct. As regards the best interest of the child, the fact that a parent has remarried within a short period of time before or after the permanent custody hearing has little, if any, bearing on whether the parent will provide a suitable moral atmosphere for the upbringing of the child. A marriage, coupled with the passage of sufficient time to show that the mother has developed a wholesome home within which to rear a child, would be evidence to be considered in determining child custody. Mrs. Stephenson’s recourse is to seek a change of custody after sufficient time has transpired to show that she and her new husband are capable of providing a proper atmosphere for raising a small child.

Regardless of whether the trial judge considered the pending marriage, or went outside the record to consider an after the fact marriage, his strong reliance on same in awarding permanent custody to the mother was error.

Therefore, for the above and foregoing reasons, the judgment of the trial court is reversed and permanent care, custody and control of the child, Candice Ann Stephenson, is awarded to plaintiff-appellant, J. Douglas Stephenson. This matter is remanded to the trial court for the purpose of establishing fixed visitation privileges on behalf of Mrs. Stephenson. Defendant-ap-pellee is to pay all costs of this proceeding in the trial court and in this court.

REVERSED, RENDERED AND REMANDED.

EDWARDS, J., dissents and assigns reasons.

CHIASSON, J., dissents for reasons assigned by EDWARDS, J.

EDWARDS, Judge,

dissents.

I see no parallel between the mother’s activities here and.those of the mother in Séhexnayder.

I have no quarrel with the majority’s statement concerning the trial judge’s checking the marriage records after the hearing or its statement concerning the more important fact that her new marriage had no experience or history behind it with which to gauge its stability.

My dissent is based on the fact that the trial judge found the child properly cared for and expressly stated that he thought the best interests of this little girl were served by the mother’s custody.

There is ample evidence in the record from the mother’s employer and neighbors to support that conclusion.

The father’s lack of support was obviously taken into consideration by the trial judge.

This was obviously a tough case, but I cannot clearly agree that the trial judge either abused his discretion or committed manifest error. I therefore respectfully dissent.


author: SAMUEL, Judge. GARRISON, Judge,

text:
    Karen SABO v. DEPARTMENT OF POLICE.
    No. 10296.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 16, 1981.
    Rehearing Denied May 15, 1981.

      Ellis Jay Pailet, New Orleans, for plaintiff-appellant.
    Salvador Anzelmo, City Atty., and Michael A. Starks, Deputy City Atty., New Orleans, for defendant-appellee.
    Before SAMUEL, GULOTTA and GARRISON, JJ.
   SAMUEL, Judge.

Plaintiff appeals from a judgment of the Civil Service Commission upholding her dismissal by the Superintendent of Police. The dismissal resulted from an internal investigation concerning questionable use of overtime by employees assigned to the police automobile pound. Plaintiff is a civilian employee of the department. She prepares the automobile pound payroll.

On April 16, 1977 at approximately 1 p. m. plaintiff was not in the office, having gone home with permission of her supervisor. Five police officers conducted a surprise inspection at the pound at that time. A partially completed investigation of the records for which plaintiff was responsible showed she had worked on that date, April 16, 1977, from 4 a. m. to 11 a. m., and overtime from 11 a. m. to midnight. The overtime item had been corrected to show overtime from 11 a. m. to 4 p. m. Other than the entry concerning her own overtime the remainder of the report for other employees was incomplete. Plaintiff was contacted at her residence and returned to the pound where she was questioned about the irregularities. Other employee statements indicated plaintiff previously had submitted false payroll records reporting she had worked overtime when she had not done so.

Thereafter, a former employee complained plaintiff had contacted her and threatened and intimidated her relative to the ongoing investigation. After receipt of this complaint plaintiff was ordered to make a further statement in this connection on May 25, 1977.

On that date plaintiff was advised her action in this regard was a possible criminal offense. She was advised of her constitutional rights and asked to make a statement. She refused. The interrogator then suspended the criminal action and opened the civil investigation, advising plaintiff of her rights, including the fact that anything she might say thereafter in the civil proceeding could not be used against her in any criminal action. She refused to make a statement but later reconsidered, rendered a written statement and answered questions propounded to her.

On June 29,1977 plaintiff was offered an opportunity to present facts in mitigation or explanation of her misconduct in office (the payroll records and the alleged intimidation) at the office of the Superintendent of Police.

By letter of July 5, 1977, specifying in detail all of the above outlined facts, the superintendent advised plaintiff she was dismissed for submitting fraudulent payroll records to obtain payment for unearned overtime on April 16, 1977, violation of nine articles of rules for the Administration of the Department of Police, and conduct contrary to the standards of service prescribed by the rules of the Civil Service Commission for the City of New Orleans. In his opinion her comments at the meeting on June 29, neither explained nor mitigated such conduct.

Plaintiff appealed her dismissal to the Civil Service Commission. The Commission had before it plaintiff’s alleged misconduct on April 16, 1977 (in connection with payment for hours not worked), failure to make a statement in connection with an ongoing investigation, and misconduct relative to alleged threats and intimidation.

Following hearing on these allegations, the Commission found the incident of April 16 was proved, the allegation relative to public intimidation was not proved because plaintiff denied it and the other person allegedly intimidated could not be found to testify, and the allegation relative to refusal to make a statement in disobedience of a direct order was proved. The Commission concluded both of the charges which had been proved constituted a serious breach of duty owed by appellant to her employer. It affirmed the action of the appointing authority and dismissed the appeal. We find a discussion of the refusal to make a statement unnecessary. The misconduct relative to payment for hours not worked, by itself, is sufficient for us to affirm the decision appealed from.

In this court appellant invokes the doctrine of estoppel. It is her position that she should not have been terminated for actions which have been tolerated, and which she was directed to do by supervisory personnel as a method of handling the problem of compensatory time. Her testimony in this regard is:

She has been a civilian employee of the department for eleven years. Her normal tour of duty at this time was from 4 a. m. to 11 a. m. Any hours worked after that time are paid for as overtime. In some prior years there was no such thing as overtime or compensatory time. In 1970 there was no overtime worked so they would come in from 5 to 11 to work.

In those previous years you could not make more than 20 hours per week and she worked 4 hours additional time because there was no one else to make the payroll. When employees had worked overtime in some previous years they were not paid for overtime but could take the time off on other days (compensatory time). Then the city cut out compensatory time and they were not paid for the additional hours worked. Therefore, in 1970, 1972, 1973 and 1977 she did not receive pay for overtime. She concluded the city owed her overtime for previous time she worked without being paid (including 1977) and consequently, when she currently listed herself for overtime which she did not work, she was reimbursing herself for earlier work for which she had not been paid.

In addition to the records of April 16, which did not reflect the hours she actually worked, she testified without objection to questions relating to her work on April 1, 2 and 3, wherein she listed herself as working 20 hours on each of those days. She admitted she had not worked those hours on April 1 (although she received full overtime pay therefor), leaving two and one-half hours early on April 1. She took off early at that time because her husband was “loaded” at a bar and she wanted to go get her car.

On April 16 she had permission from her supervisor to come in two and one-half hours late. Since she had permission she felt she was entitled to pay for the full shift. (Her superior testified she did have his permission to come in late but he did not expect she would be paid for it.)

Sergeant Pittman, her superior, was commander at the automobile pound in 1977. He testified appellant was a good worker and gave a considerable amount of her free time to the automobile pound when they needed help in 1975 and 1976 for a four month period when there was no money for overtime or compensatory time. In 1977 she also worked several days without extra pay.

Relative to twenty-hour days, he stated he himself worked twenty-four-hour days during Mardi Gras (and apparently received full pay plus overtime) because he had his camper at the automobile pound and slept there the full eleven days of Mardi Gras.

Appellant’s other witness, Frank Luizza, stated employees could be given permission to come in late but they were not entitled to be paid for a full shift unless they worked 8 hours from the time they came in late. He did state that the department had tolerated a person coming late and being paid the full 8 hours.

Sergeant Charles Polit, also called as a witness by appellant, testified as to plaintiff leaving early on April 1. (He drove her to the bar to pick up her ear because of her husband’s condition.) He thought she should be paid full time even though she didn’t work because of the many times she had worked two or three hours overtime and never got paid for it.

The Commission refused to accept plaintiff’s explanation, to some extent corroborated by her superior, that because she had worked overtime in the past the city “owed” it to her. They concluded an employee had no right whatever to adjust grievances as to pay on an ad hoc basis and that the city does not owe her in the sense she would be able to stay home, report herself working and draw overtime pay for time spent at home. They felt all sorts of mischief would result if this individual subjective adjustment were permitted. We agree and add that this is particularly true of the person entrusted with preparing the payroll.

The decision appealed from is affirmed.

AFFIRMED.

GARRISON, J., dissents with written reasons.

GARRISON, Judge,

dissenting:

I cannot agree with the majority in this case. At the outset — to put this matter in the perspective in which I see it — it should be said that the operation of which Mrs. Sabo was a part is best likened (with regard to its administrative and operated controls) to that of a Chinese laundry in a thunderstorm.

On April 16, 1977, the Internal Affairs Division, hereinafter I.A.D., of N.O.P.D. conducted a surprise investigation of payroll procedures at the Auto Pound. John Dupre, Frederick Plalygrap, John Johnston and Anthony Scott, all agents of I.A.D., arrived at the pound at 1:00 p. m. Mrs. Sabo, was not at the pound. She was taken to Internal Affairs Headquarters for questioning. In the course of that questioning, she was first given Miranda warnings, including the following from a transcript of the questioning:

“Therefore, it is my duty to inform you that you have your constitutional rights about giving a statement. I have filled out NOPD Rights on an Arrestee or Suspect Form # 94338, advising you of your rights. That you need not make any statements, that is you have a right to remain silent, anything you say may be used against you in trial. You have the right to consult with and obtain the advice of an attorney before answering any questions. If you cannot afford an attorney, the court will obtain an attorney to represent you and advise you. You have the right to have your attorney or an appointed attorney present at the time of any questioning or giving of any statements. Do you understand those rights? (emphasis added)
A. Yes, I do.
Q. I am given to understand by yourself, that you wish to speak to an attorney before waiving these rights, am I correct?
A. Correct.
Q. As a result of your refusing to sign waiving your rights concerning any statements made in this criminal investigation I now advise you that we are terminating temporarily this criminal investigation and are beginning the departmental internal investigation. Do you understand this?
A. Yes.”

Switching from the criminal investigation to the departmental investigation in a matter of seconds (and accelerating with corresponding speed the posture of jeopardy in which Mrs. Sabo was being placed) the interrogator shifted into higher gear:

“Q. I have given you a copy of NOPD Form # 38A, outlining your rights as an employee, under Article 6, of the City and Police Contract. I am requesting that you sign this form acknowledging that you have read these rights. You have signed this form, is that correct?
A. Yes.
Q. ... I now advise you that as a City Civil Service Employee, you may not refuse to answer questions relating to the affairs of government of the State or City, or the conduct of any State or City officer or employee including yourself, and your refusal to do shall operate as a forfeiture of your Civil Service job and you will not be eligible for appointment to any position in a State or City Civil Service thereafter, for a period of ten years. I hereby advise you that Paragraph (1), Section 15, of Article 14, of the Louisiana Constitution, outlines that the heretofore stated requirements of Civil Service Employees, and also provided the heretofore stated penalty for noncompliance. I also advise you that in the United States Supreme Court, (Garrity v. New Jersey, 385 U.S. 493, [87 S.Ct. 616, 17 L.Ed.2d 562]) rules that statements made or answers given by Civil Service Employees are not free and voluntary in the sense that they can be introduced in a criminal proceeding against a Civil Service Employee making them when such statements or answers were required by State law under penalty of job forfeiture. I again advise you that this Supreme Court ruling, because of the provisions of Paragraph (1), Section 15, of Article 14, of the Louisiana Constitution, already mentioned is applicable in Louisiana, and that the total legal effect is that you are required to make statements and answer questions in a departmental internal investigation. However, any statement made by you or answers given by you in a departmental internal investigation, cannot be introduced in a criminal prosecution against you. Do you understand this?
A. Yes.
Q. In view of the above, are you willing to comply with State law and make a statement and answer questions in this departmental internal investigation?
A. No.
Q. As you have indicated your unwillingness to make a statement and answer questions in this departmental internal investigation in compliance with State law and irrespective of legal safeguard, I now order you to make a statement and answer questions in this departmental internal investigation. Will you obey this order?
A. No....”
(emphasis added)

Mrs. Sabo informed the interrogator that she would consider making a statement after consulting her attorney. However, she was unable to contact him within the hour and a half which she was given.

The following day, Mrs. Sabo was suspended peremptorily for 79 days through July 4, 1977 and terminated as of July 5, 1977 for alleged payroll irregularities of April 16, 1977 and for failure to obey a direct order to co-operate in the departmental investigation by answering questions. The City Civil Service Commission affirmed Mrs. Sabo’s lightning termination and she appealed.

I believe that the Civil Service Commission erred in holding that Mrs. Sabo could be compelled to testify against herself in the departmental investigation and that her failure to do so could result in dismissal. The section of the Louisiana Constitution referred to during Mrs. Sabo’s interrogation is Article 14 § 15, paragraph (P)(l) of the Constitution of 1921. This section was not re-enacted in the Constitution of 1974, even though the legislature re-enacted entire blocks of the 1921 Constitution dealing with civil servants. See Art. 10 § 18, Constitution of 1974 referring to Art. 14 § 15.1, Constitution of 1921. In the absence of an express constitutional grant of such extraordinary power, Art. 14 § 15 of the Constitution of 1921 was repealed by Art. 14 § 17 of the Constitution of 1974, as the prior constitutional provision is now in conflict with Art. 1 § 13 of the Constitution of 1974, which provides as follows:

“Section 13. When any person has been arrested or detained in connection with the investigation or commission of any offense, he shall be advised fully of the reason for his arrest or detention, his right to remain silent, his right against self incrimination, his right to the assistance of counsel and, if indigent, his right to court appointed counsel. In a criminal prosecution, an accused shall be informed of the nature and cause of the accusation against him. At each stage of the proceeding, every person is entitled to assistance of counsel of his choice, or appointed by the court if he is indigent and charged with an offense punishable by imprisonment. The legislature shall provide for a uniform system for securing and compensating qualified counsel for indigents.”

Having so commented upon the threshold issue, it hardly need be added that the interrogator did not possess the prosecutorial and judicial powers which would allow him to make a binding grant of immunity from criminal prosecution.

Turning now to the second ground for dismissal, the alleged payroll irregularities of April 16,1977,1 believe that the Commission erred in terminating Karen Sabo on these grounds. The alleged payroll irregularities arose from Karen Sabo’s compliance with the inferential, but nonetheless clear order from her supervisor, Sergeant Pittman, who instructed her to use a system known as “compensatory time earned” or “C.U.” Sergeant Pittman testified that Karen Sabo was following his instructions. We note that Karen Sabo was the only N.O.P.D. non-commissioned employee at the pound at the time. We also note that Sabo’s refusal to follow any orders from Sergeant Pittman would also have been ground for termination. Essentially what this entire affair comes down to is that Mrs. Sabo was working in accordance with the orders, whether express or implied, of her commander in the extremely loose operation which he had long since instituted.

In any case, if 20-20 hindsight suddenly was going to be applied to this curiously lax police operation it was the essence of unfairness to single out Mrs. Sabo, its sole civilian employee, and begin it with her.

For the foregoing reasons, I dissent.

      . She wanted her attorney present and was given two hours, but left after one-half hour.

      . After consulting her attorney.

      . Referring to adherence of law, truthfulness, punctuality, attendance, devoting entire time to duty, ceasing to perform before end of period of duty, false and inaccurate reports, failure to obey instructions from authoritative source, neglect of duty, disobedience of orders.

      . Specifically Rule IX, § 1, ¶ 1.1 — Maintaining Standards of Service.

      .That appellant reported to work late and left early, yet the payroll showed she had worked a full shift plus overtime, and on other occasions, by her own testimony, she was paid for hours she did not work.


author: DOUCET, Judge.

text:
    Dr. John C. ROURKE, Plaintiff-Appellee, v. Leonard CLOUD, Defendant-Appellant.
    No. 8274.
    Court of Appeal of Louisiana, Third Circuit.
    March 19, 1981.

      James L. Babin, Lake Charles, for defendant-appellant.
    Scofield, Bergstedt, Gerard, Hackett & Mount by Robert L. Hackett, Lake Charles, for plaintiff-appellee.
    Before GUIDRY, SWIFT and DOUCET, JJ.
   ON MOTION TO DISMISS SUSPENSIVE APPEAL

DOUCET, Judge.

The plaintiff, John C. Rourke, M.D.', obtained a judgment of eviction against the defendant, Leonard Cloud, on January 5, 1981. The defendant timely moved for and was granted a suspensive and devolutive appeal from this judgment.

The plaintiff has moved to dismiss the suspensive appeal on the ground that the answer filed by the defendant did not state an affirmative defense as required by Article 4735 of the Code of Civil Procedure. The matter is before us now on the motion to dismiss the suspensive appeal. We grant the plaintiff-appellee’s motion and dismiss the defendant’s suspensive appeal.

The plaintiff filed a petition for eviction on November 7, 1980 seeking to regain possession of a lot in Sulphur, Louisiana. On November 26, 1980, the defendant filed an answer contending that the plaintiff and the defendant had entered into a contract to sell the property in question and that the defendant has fully complied with the contract to sell, therefore has a right to possess the property. The plaintiff contends that the allegations of the defendant’s answer do not constitute an affirmative defense as required by LSA-C.C.P. Art. 4735 in order to maintain a suspensive appeal.

Article 4735 of the Code of Civil Procedure makes special provisions for a suspen-sive appeal from a judgment of eviction. That article provides:

Art. 4735. Appeal; bond
An appeal does not suspend execution of a judgment of eviction unless the defendant has answered the rule under oath, pleading an affirmative defense entitling him to retain possession of the premises, and the appeal has been applied for and the appeal bond filed within twenty-four hours after the rendition of the judgment of eviction. The amount of the suspensive appeal bond shall be determined by the court in an amount sufficient to protect the appellee against all such damage as he may sustain as a result of the appeal.

To suspend execution of a judgment of eviction and thus defer return of possession to the lawful owner or lessor, the defendant must comply literally with the provisions of law which expressly govern the taking of suspensive appeals in such proceedings. Alexander v. Williams, 205 So.2d 456 (La.App. 1st Cir. 1967).

LSA-C.C.P. Art. 4735 requires an answer, verified by oath of the defendant, setting up an affirmative defense entitling the defendant to retain possession of the premises in order to maintain a suspensive appeal. Soloman v. Hickman, 213 So.2d 96 (La.App. 1st Cir. 1968); Papa v. Sullivan, 268 So.2d 326 (La.App. 2nd Cir. 1972); McMillan v. Chauvin, 281 So.2d 181 (La. App. 4th Cir. 1973), writ denied, 283 So.2d 770 (La.1973). An affirmative defense raises new matter which, assuming the allegations to be true, constitutes a defense to the action and will have the effect of defeating plaintiff’s demand on its merits. LSA-C. C.P. Art. 1005; Webster v. Rushing, 316 So.2d 111 (La.1975); Conques v. Hardy, 337 So.2d 627 (La.App. 3rd Cir. 1976); Soloman, supra.

In the instant case, the defendant alleges in his answer that he has the right to specifically enforce a valid contract to sell. This is not an affirmative defense alleging defendant’s entitlement to possession of the premises of which he is sought to be evicted. A contract to sell does not transfer ownership. Gibsland Supply Co. v. American Employer's Ins. Co., 242 So.2d 310 (La.App. 2nd Cir. 1970), writ denied, 244 So.2d 858 (La.1971); Lambert v. Succession of DeHass, 271 So.2d 910 (La.App. 1st Cir. 1972); Webb v. Young, 338 So.2d 767 (La. App. 4th Cir. 1976), writ denied, 341 So.2d 419 (La.1977). A contract to sell does not give the grantee a right of possession unless it specifically so provides. The defendant did not allege in his answer that any agreement gave him the right to possess the property other than the contract to sell, which contains no provision for possession prior to the act of sale.

We conclude that the defendant has not alleged an affirmative defense entitling him to retain possession of subject premises. Therefore, the defendant has not complied with the requirements of LSA-C.C.P. Art. 4735 and cannot take a suspensive appeal.

For the above and foregoing reasons, the suspensive appeal is dismissed at the defendant-appellant’s cost. The defendant’s devolutive appeal is maintained.

SUSPENSIVE APPEAL DISMISSED.


author: STOKER, Judge.

text:
    Lovelace GREENE et al., Plaintiffs-Appellees, v. Roy GREENE, Warren Greene and Russell Roy Greene, Defendants-Appellants.
    No. 8011.
    Court of Appeal of Louisiana, Third Circuit.
    March 31, 1981.
    Rehearing Denied May 28, 1981.

      Roger C. Edwards, Abbeville, for plaintiffs-appellees.
    Cooper & Sonnier, Calvin E. Woodruff, Jr., Abbeville, for defendants-appellants.
    Before DOMENGEAUX, STOKER and DOUCET, JJ.
   STOKER, Judge.

At issue in this appeal is the right to proceed under a pleading filed by the defendants and entitled a “Supplemental and Amending Answer and Reconventional Demand” by which they seek to assert a claim for damages allegedly caused by the wrongful issuance of a preliminary injunction and for attorney’s fees. The defendants sought to amend their answer after the judgment denying the plaintiffs’ preliminary and permanent injunctions became final. The resolution of the principal issue in this case rests upon a determination of whether or not the original answer incorporated a re-conventional demand.

A brief summary of the phases of this litigation is necessary to understand the issue presented by this appeal.

On June 12, 1978, Lovelace Greene and Eva Amelia Greene filed suit against Roy Greene, Warren J. Greene and Russell Roy Greene seeking judicial recognition of certain predial servitudes and for the enforcement of these through preliminary and permanent injunctions. On June 26, 1978, the trial court initially granted a preliminary injunction. The defendants filed an answer on June 29, 1978, and a trial on the merits was held on July 17, 1978. The trial judge signed a judgment September 1, 1978, dissolving the preliminary injunction and denying a permanent injunction. Plaintiffs appealed to this court and on June 29,1979, a panel of this court affirmed the decision of the trial court. See Greene v. Greene, 373 So.2d 756 (La.App. 3rd Cir. 1979). On November 1, 1979, the Supreme Court denied a writ of certiorari. 377 So.2d 118 (La.1979).

On December 13, 1979, the defendants Roy Greene, Russell Roy Greene, and Warren J. Greene, filed the pleading which forms the subject of the present controversy. Defendants filed a “Supplemental and Amending Answer and Reconventional Demand” in this action seeking to recover for damages allegedly sustained as the result of the trial court’s wrongful issuance of the preliminary injunction and attorney’s fees incurred in obtaining the dissolution of the preliminary injunction.

The defendants-in-reconvention (plaintiffs in the original suit) filed three peremptory exceptions:

(1)An exception of prescription based upon LSA-C.C. art. 3536 leveled at the claim for damages allegedly caused by the wrongful issuance of the preliminary injunction.

(2) An exception of prescription based upon LSA-C.C. art. 3536 leveled at the claim for attorney’s fees; and

(3) An exception of no cause of action alleging that LSA-C.C.P. art. 3608 does not sanction an award of attorney’s fees for defending injunctive relief cases on the merits.

The trial court sustained all three peremptory exceptions and dismissed the re-conventional demand. The plaintiffs-in-re-convention, Roy Greene, Russell Roy Greene and Warren J. Greene, appeal.

The appellants advance two theories in support of their argument that their claims for damages and attorney’s fees are not prescribed. Primarily, the appellants contend that Paragraph XXIX and XXX coupled with language in the prayer of their original answer filed on June 29, 1978, constitute a reconventional demand. Appellants urge us to hold that prescription was interrupted as provided by LSA-C.C. art. 3518 by the filing of “suit” through the reconventional demand. The appellants maintain that they prayed for relief and damages in Paragraphs XXIX and XXX of their original answer and therefore asserted a reconventional demand which was tantamount to filing suit under LSA-C.C. art. 3518. Appellants argue that the trial court recognized their reconventional demand in its judgment when it reserved to them the right to proceed for damages sustained as a result of the wrongful issuance.

Appellants advance the second argument that the trial court judgment was a money judgment rendered in their favor, the value of which was to be determined later. The main thrust of both of appellants’ arguments is that their original answer incorporated a reconventional demand and therefore interrupted prescription on the claims for damages and attorney’s fees and that the “Supplemental and Amending Answer and Reconventional Demand” is a mere continuation of the cause of action asserted originally on June 29, 1978. Appellants maintain that they are now entitled to prove the damages that they sustained.

Some justification exists for deeming the Greenes’ pleading denominated “Answer” to have also constituted a recon-ventional demand. It has been held that a reconventional demand inserted in an answer is nevertheless not part of the answer but is a petition setting forth a distinct cause of action. The case of Mexic Bros. Inc. v. Sauviac, 191 So.2d 873 (La.App. 4th Cir. 1966) stated that proposition as dicta although in so doing it quoted from the Louisiana Supreme Court case of Stringfellow v. Nowlin Bros., 157 La. 683, 102 So. 869 (1925). In paragraph XXIX of their answer the Greenes allege that they were entitled to damages for wrongful issuance of the preliminary injunction on June 26, 1978. Tr. 76. In paragraph XXX of their answer the Greenes allege that they “reserve the right to amend this Answer to allege the specific items damaged.” The prayer contained a demand for judgment not only rejecting plaintiffs’ demands for dissolving the injunction, but “decreeing the Defendants entitled to damages for the wrongful issuance thereof.” Therefore, one may reasonably conclude that plaintiffs were put on notice that damages were being demanded of them, the itemization of which would be supplied by amendment.

The Code of Civil Procedure provides that when an incidental demand is incorporated in an answer “the caption shall indicate appropriately the dual character of the combined pleading.” LSA-C.C.P. art. 1032. Accordingly, the demands of the Greenes should have been indicated by appropriate captioning in the original answer. However, we have not found any sanction for failure to so caption an answer containing an incidental demand. The jurisprudence has been quite liberal in this regard, and no penalties have been applied for failure to comply with Article 1032 absent prejudice to the opposing party. Higdon v. Higdon, 385 So.2d 396 (La.App. 1st Cir. 1980); Cvitanovich v. Sorli, 347 So.2d 1204 (La.App. 1st Cir. 1977); and Lewis Chevrolet Company v. Whitener, 122 So.2d 880 (La.App. 1st Cir. 1960).

Assuming that the allegations contained in the original answer of the Greenes constitute the assertion of a reconventional demand as they now contend, we note that the case went to trial without the reconven-tional demand ever having been answered. No preliminary default was entered on behalf of reconvenors. Therefore, the recon-ventional demand was not at issue when the trial took place. LSA-C.C.P. arts. 1701-1703. Consequently, no judgment on the reconventional demand could have been rendered following the trial. Breland v. All American Assurance Co., 366 So.2d 1051 (La.App. 1st Cir. 1978).

Continuing the assumption that the answer contained a reconventional demand, the reasonable conclusion is that by allowing the parties to go to trial on the principal demand the trial court’s action resulted in providing for separate trials of the principal demand and the incidental demand. Trial courts are authorized to order separate trials of the principal demand and incidental demand by LSA-C.C.P. art. 1038. Under that article the trial court "... after adjudicating the action first tried, shall retain jurisdiction for the adjudication of the other.”

After due consideration we hold that defendants’ original answer did set forth a reconventional demand. Although the language of the allegations and the prayer which articulated the reconventional demand may be couched in somewhat unusual terms, the pleading fairly put plaintiffs on notice of the reconvenors’ demands with the exception of the itemization of the damages claimed. As to the itemization the pleading stated that the itemization would be supplied by amendment. Therefore, we are of the opinion that the Answer containing the reconventional demand filed by the defendants on June 29, 1978, served to interrupt the running of prescription on any valid claim the defendants may have. We reverse the trial court’s decision insofar as it sustained the exceptions of prescription because we find the reconventional demand was timely filed.

Under our resolution of this matter we find it unnecessary to consider the effect of the trial court’s judgment signed on September 1,1978, reserving to reconvenors the right to pursue their claim for damages.

We now turn to the question of whether the trial court erred in sustaining the exception of no cause of action. The trial court gave neither written nor oral reasons for sustaining the exceptions. Paragraph IV of reconvenors’ “Supplemental and Amending Answer and Reconven-tional Demand” filed December 13, 1979, reads as follows:

“IV
“That in addition to above damages and loss, your Respondents were required to employ an Attorney to represent them in these proceedings for the purpose of defending the same and obtaining the dissolution of said temporary restraining order, which Attorney’s fees amounted to FIVE THOUSAND TWO HUNDRED TWENTY FIVE AND NO/lOO ($5,225.00) DOLLARS.”

At least for dissolving the injunction, re-convenors may recover attorney fees. LSA-C.C.P. art. 3608 states:

“The court may allow damages for the wrongful issuance of a temporary restraining order or a preliminary injunction on a motion to dissolve or on a recon-ventional demand. Attorneys’ fees for the services rendered in connection with the dissolution of a restraining order or a preliminary injunction may be included as an element of damages whether the restraining order or preliminary injunction is dissolved on motion or after the trial on merits.”

Inasmuch as a cause of action exists for attorney’s fees on one valid basis, the exception of no cause of action should have been overruled. Guiffrida v. Bourque, 374 So.2d 1265 (La.App. 3rd Cir. 1979); Little v. Haik, 246 La. 121, 163 So.2d 558 (La.1964). Consequently, we reverse the trial court’s judgment with reference to this exception.

For the foregoing reasons the judgment of the trial court of July 2,1980, is reversed. It is now ordered, adjudged and decreed that the exceptions of prescription and no cause of action be and they are hereby overruled, and this case is remanded to the trial court for further proceedings consistent with the views expressed herein. The costs of this appeal are assessed equally to appellants and appellees.

REVERSED AND REMANDED.

      . Paragraphs XXIX and XXX of the appellants’ original answer read as follows:
      “XXIX.
      “That the preliminary injunction issued herein was wrongfully issued, and that your Defendants are entitled to damages for said wrongful issue.
      “XXX.
      “Defendants reserve the right to amend this Answer to allege the specific items damaged.”
      The prayer of the original answer reads as follows:
      “WHEREFORE, Defendants pray that their Answer be deemed good and sufficient and that after due delays and proceedings had that there be Judgment herein in favor of Defendants, rejecting the demands of Plaintiffs, and further dissolving the preliminary injunction issued herein and decreeing the Defendants entitled to damages for the wrongful issuance thereof.
      “Defendants further pray for all costs of these proceedings and for all general and equitable relief.”

      . The trial court’s judgment provides in pertinent part:
      "... and further dismissing Plaintiffs’ suit, subject, however, to the reservation of the rights of the Defendants in this suit to proceed hereafter for whatever damages they may have sustained on account of the wrongful issuance of the Writ; all costs to be paid by the Plaintiffs.”

      . See McCrossen v. Stoyka, 218 So.2d 669 (La. App. 4th Cir. 1969) for an analogous case in which the reconventional demand was dismissed for failure of the reconvenor to introduce evidence in support of his claim. There the reconventional demand had been put at issue.


author: SAMUEL, Judge. REDMANN, Judge,

text:
    GLENN HARRIS AND ASSOCIATES, INC. v. CHIMNEY WOOD, INC.
    No. 10822.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 31, 1981.
    Rehearing Denied May 15, 1981.

      Young, McMahon & Levert, Joseph R. McMahon, Jr., New Orleans, for plaintiff-appellee.
    Beard, Blue, Schmitt, Mathes, Koch & Williams, Melvin W. Mathes, New Orleans, for defendant-appellant.
    Before SAMUEL, REDMANN, GULOT-TA, SCHOTT and SARTAIN, JJ.
   SAMUEL, Judge.

Plaintiff filed this suit for $6,727.95 for alleged breach of a landscaping contract with the defendant. Defendant answered, denying liability, and filed a reconventional demand for $10,634.21 for various back charges, attorney’s fees, and expenses to complete the work called for by the contract. Subsequently, the reconventional demand was amended and increased by an additional $5,170.

After a trial on the merits, judgment was rendered in favor of plaintiff and against defendant in the sum of $6,727.95. The judgment dismissed defendant’s reconven-tional demand. Defendant has appealed.

Defendant is the owner-developer of seventy-four condominium units in New Orleans known as Chimney Wood Townhomes. Plaintiff contracted with defendant on November 7, 1975 to furnish all labor, material, supervision, and engineering necessary to provide complete landscaping of the units in accordance with plans and specifications dated September 16, 1975 and prepared by defendant’s landscape architect, James F. Fondren & Associates. The original contract price was $39,450, and that amount was increased first to $40,090.59, and then to $40,915.59.

In addition to performing the landscaping services mentioned above, Paragraph 1.14 of the landscape specifications provided as follows:

“The contractor shall be responsible during the contract period for keeping all planting and work incidental thereto in good condition by replanting, plant replacements, resodding, watering, weeding, cultivating, pruning and spraying, and by performing all other necessary operations of care for promotion of root growth and plant life so all work is in a satisfactory condition at provisional acceptance.”

Thus, the contract provided that all maintenance was to be performed by plaintiff until provisional acceptance by the owner-developer and its landscape architect, and it further contained a one year guarantee by plaintiff of the viability of the plants and bushes planted by it, which one year period commenced on the date of provisional acceptance. The questions as to the existence and date of provisional acceptance is a key question in resolving the present dispute.

Thomas Bethune, III, a landscape architect with the Fondren firm had primary responsibility for the Chimney Wood project. On May 10, 1976, in the presence of Glenn Harris and on Fondren’s letterhead addressed to Adrian Kornman, a principal of Coast Quality Construction Company, the parent of Chimney Wood, Inc., Bethune prepared a letter of provisional acceptance. Bethune signed the name “Jim” (i. e., James Fondren) to the letter of provisional acceptance and gave a copy of it to Harris.

Bethune admitted at the trial he did not have authority to sign Fondren’s name, nor had he ever taken such action previously. He also admitted he did not send a copy of the letter to Kornman. Harris likewise admitted being present when Bethune signed Fondren’s name to the letter. Finally, Fon-dren insists Bethune had no authority whatever to sign his name and that, upon being informed by Bethune of the letter, he personally inspected the project and rescinded the provisional acceptance.

In order to resolve the problem, Harris, Kornman, Fondren and Bethune held a meeting on May 21, 1976. At this meeting an agreement was reached and reduced to writing by which Harris agreed to complete all work in accordance with plans, specifications, and punch lists of plants which were either dead or dying, with the exception of approved substitutions and exceptions, no later than June 7, 1976. The approved exceptions and substitutions related to plants that either could not be delivered by June 7, or which had to wait until a later date because of the heat of the summer.

Harris continued work on the project, but limited his performance to planting in accordance with a punch list prepared by Bethune on May 6, 1976. He did no more maintenance work in the form of watering, pruning, grass cutting, or spraying after May 6, 1976. Bethune prepared another planting punch list on June 8, 1976 listing approximately 126 plants which were either missing, dead, not acceptable, improperly planted, damaged, or undersized.

On June 9, 1976, Fondren sent a letter to Harris asserting that Harris was still responsible for maintenance procedures under the agreement of May 21, 1976 until the project was accepted, and that Harris was to request a project inspection upon completion of his work.

A provisional acceptance was approved by Fondren and Chimney Wood for certain areas of the project, and Harris was notified on August 4, 1976 that he was in default with regard to other areas designated on the plans and specifications as Areas 1, 3, 4, 6, and 8 of the project. Harris did not perform, and on August 6,1976 defendant entered into a contract with another landscape contractor to complete Harris’ work for the sum of $4,345.58.

Approximately one year later, on July 25, 1977, Bethune prepared a list of all plants in need of replacement following the one year guarantee. The cost of these plants was $8,035, of which $2,254.75 was imputed to Harris’ guarantee of plants originally installed.

In holding for plaintiff, the trial judge found that Bethune was acting on behalf of Fondren and also had authority from Chimney Wood, Inc. to execute the provisional acceptance of May 10, 1976. We disagree with this conclusion.

The record is clear that Bethune did not have the authority to prepare the letter of provisional acceptance and execute it in Fondren’s absence. As stated above, Bethune admitted under oath he lacked such authority, Fondren likewise denied Bethune’s authority, and Glenn Harris readily admitted Bethune signed Fondren’s name to the letter in his presence. The only fact in the record which could even tend to support a finding that Bethune had authority to execute the provisional acceptance is the fact that he had general supervision of the project and that Fondren was employed on a full-time basis by Tulane University and visited the premises of the Chimney Wood Townhomes only once or twice a month. However, the mere delegation of authority by Fondren to Bethune to supervise the installation of plants does not, under the facts contained in the record, support an inference that Bethune had authority from Fondren to execute the provisional acceptance.

Furthermore, the subcontract between the parties which designates Chimney Wood as owner and contractor provides that “[ajcceptance of all work shall be subject to approval by the contractor and James F. Fondren, Landscape Architect ...” (Emphasis ours) and the landscape specifications state that provisional acceptance requires approval by owner and architect. Even if the record supported the conclusion that Bethune had the architect’s authority to act as his agent, nothing supports the conclusion that he was authorized to act as Chimney Wood’s agent. The document itself does not purport to contain an approval by Chimney Wood since the only name on that letter is Fondren’s.

In view of the clear and uncontradicted testimony of both parties to the litigation, which supports a conclusion that the provisional acceptance was executed without authority, and in view of the lack of direct conflicting evidence, we hold the trial judge committed error by finding Bethune was acting within his authority on behalf of Fondren and on behalf of Chimney Wood, Inc.

It follows that plaintiff abandoned the job prior to completion and prior to provisional acceptance. As a result, defendant had to contract with another landscape contractor to complete the job. The contract between plaintiff and defendant states plaintiff is obligated to replace, without cost to the owner and as soon as weather conditions permit, all dead plants and all plants not in a thriving condition, as determined by the owner’s landscape architect at the end of the guarantee. Glenn Harris admitted this one year guarantee was binding on his firm.

Evidence offered by defendant in support of its reconventional demand was testimony by James Fondren as to the cost of plants purchased in order to complete the punch list prepared by Bethune on July 25, 1977 in order to complete the project. Since it is impossible to determine the precise date of plaintiff’s abandonment of the job, we cannot say July 25,1977 is the exact date on which plaintiff’s warranty ended. However, that date is sufficiently close to the end of the one year warranty period following effective acceptance in July or August, 1976 and the time when plaintiff estimated he abandoned the job so as to be reasonable and enforceable by defendant. In connection with his punch list, Fondren testified the plants and other material necessary for completion were purchased from another landscape firm and that $2,254 in value of plants were attributed to those planted by plaintiff which did not survive the one year guarantee of his contract. This amount should have been awarded defendant on its reconventional demand.

Likewise, Bethune prepared a punch list on June 22, 1976 showing a considerable number of plants then dead, dying, in shock, or otherwise unacceptable. These plants were installed by Harris, and under the contract should have been replaced by his firm. Bethune testified these plants had to be replaced by another landscape contractor, and that the cost of replacement was $4,345.58. Fondren also testified as to the accuracy of this figure, asserting his firm made a plant-by-plant review in order to determine the cost.

In addition, defendant met its burden of proving a charge of $2,673.69 for back charges for expenses incurred for maintenance of the areas in question, for weeding, watering, grass cutting, and some other services between May and August, 1976. Defendant asserts it incurred this expense because plaintiff abandoned the job with no valid provisional acceptance. Defendant’s employee, Tortorich, testified they paid an outside contractor $1,400 to perform maintenance at the beginning of the period starting in May and used their own personnel later. Defendant’s manager Kornman testified they experienced maintenance costs of $800 per month during the summer and $500 otherwise. This testimony was unrebutted and was ample support for defendant’s invoice for $2,763.69.

Finally, the subcontract between the parties provided for attorney’s fees to be awarded to defendant in the event of default by plaintiff. There is no basis for the trial court’s award of attorney’s fees to plaintiff, and, conversely, defendant is entitled under the contract to such fees which we set at $2,000.

Thus, we find plaintiff is entitled to an award of $6,727.95. We also find defendant, as plaintiff in reconvention, is entitled to $2,254.75 for replacement, etc. under the one year guarantee, $4,245.58 for completion of the work, and $2,673.69 for maintenance, a total of $9,274.02. We award defendant the difference between $9,274.02 and $6,727.95, or $2,546.07. In addition, we award defendant $2,000 as attorney’s fees.

For the reasons assigned, the judgment appealed from is affirmed in part, reversed in part, amended in part, and recast so as to read as follows:

“IT IS ORDERED, ADJUDGED AND DECREED that there be judgment in favor of defendant and plaintiff in reconvention, Chimney Wood, Inc., and against plaintiff and defendant in reconvention, Glenn Harris And Associates, Inc., in the full sum of $2,546.07, together with legal interest thereon from judicial demand until paid, and in addition, in the full sum of $2,000 as attorney’s fees.”

All costs in both courts are to be paid by the plaintiff and defendant in reconvention, Glenn Harris And Associates, Inc.

AFFIRMED IN PART, REVERSED IN PART, AMENDED IN PART, AND RECAST.

REDMANN, Judge,

dissenting in part.

Although the subcontract provides that “[acceptance of all work shall be subject to approval by the contractor [Chimney] and James F. Fondren, Landscape Architect,” the “Landscape Specifications” provide for “provisional acceptance” by “Landscape Architect” alone. Furthermore, the “provisional acceptance” of successor subcontractor Perino’s work was signed by Fondren alone, expressly purporting to start the one-year guarantee period for Perino. The conclusion seems reasonable that, although Chimney had to join in acceptance of Harris’s work, the landscape architect alone could grant provisional acceptance.

There is sufficient support in the record for the trial judge to conclude, as he did, that the work was basically completed, and properly provisionally accepted, by May 10, 1976, although a five-page “punch list” required replacement of many plants. The one-year replacement obligation thus would extend only until May 10, 1977. Because the plant loss over 14.5 months was $2,254.75 and plaintiff was only responsible for 12 of those 14.5 months, defendant should get $1,866.00 credit for that plant loss (12/14.5 of $2,254.75), as well as $4,345.58 credit for the cost of replacement of plants on the June 22, 1976 punch list, replaced by Perino under contract of August 20, 1976. Thus total credit should be $6,211.58.

The reasonable basis for the conclusion that the May 10, 1976 provisional acceptance by Bethune was correct and authorized includes Fondren’s own April 13 letter, speaking of his “final comprehensive punch list inspection.” From that list, it must be inferred that all the planting had been done (although many plants were characterized as unhealthy, dying, or dead, and some had been marred by paint). Moreover, Bethune appears to have been the member of Fon-dren’s staff who was principally responsible for this project from design to punch list. More important than the letter of May 10 is that from the testimony it could be inferred that in fact the planting part of the contract was completed by May 10 (although responsibility to replace unhealthy or dead plants continued for a year thereafter, and some plants were already unhealthy or dead by May 10).

There should be judgment for plaintiff for $516.37 ($6,727.95 — $6,211.58), with costs divided equally.

      . The same punch list identifies 23 plants which were damaged by third persons for which plaintiff was not responsible.


author: SCHOTT, Judge.

text:
    Alvin LOUQUE v. Dr. Gerald LANASA.
    No. 11783.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 7, 1981.
    Rehearing Denied May 15, 1981.
    Writ Denied July 2,1981.
    Don M. Richard and David S. Kelly, Lemle, Kelleher, Kohlmeyer & Matthews, New Orleans, for defendant-appellee.
    Donald J. Cicet, Reserve, for plaintiff-appellant.
    Before GULOTTA, BOUTALL and SCHOTT, JJ.
   SCHOTT, Judge.

Plaintiff has appealed from a dismissal of his medical malpractice suit on a summary judgment. The basis for the judgment was that plaintiff’s case had prescribed.

In his suit filed on May 19, 1979, plaintiff alleged that defendant operated on him in May and June of 1969, but these operations were completely unnecessary and resulted in further injury to him and the necessity for further medical treatment. He further alleged that the improper medical care constituted a breach of the implied contract on defendant’s part to furnish him with proper medical care.

In deposition plaintiff testified that he learned in 1975, when he was a patient at Charity Hospital, that the operations were unnecessary.

In this court plaintiff contends that LSA C.C. Art. 3544’s ten year prescription applies. However, we have concluded that the applicable prescriptive period is found in R.S. 9:5628. This provides that no action for medical malpractice may be brought unless filed within one year from the date of discovery of the alleged tort. Plaintiff contends that this prescriptive period is not applicable because it was not adopted until the 1975 session of the legislature. However, this position is without merit in the light of Lott v. Haley, 370 So.2d 521 (La. 1979) where it was held that statutes of limitation are remedial in nature and as such are generally accorded retroactive application.

In the Lott case the court recognized that this general rule could not be applied to deprive one of a vested right, but this affords no relief to plaintiff since he could have filed his suit within the year following his discovery in 1975 that the 1969 surgeries were unnecessary. To agree with plaintiff would extend him greater rights than those injured in 1975, clearly an absurd result.

Accordingly, the judgment appealed from is affirmed.

AFFIRMED.


author: GARRISON, Judge. STOULIG, Judge,

text:
    Blanche J. ROBICHEAUX v. ST. CHARLES POLICE JURY.
    No. 11543.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 7, 1981.
    Rehearing Denied May 15, 1981.
    Miller & Foley, Wayne W. Foley, Norco, for plaintiff-appellee.
    Adams & Reese, Eric Holden, New Orleans, for defendant-appellant.
    Before STOULIG, GARRISON and CHE-HARDY, JJ.
   GARRISON, Judge.

This is an appeal from a judgment of the district court, invalidating a zoning re-classification on the grounds that the St. Charles Parish Police Jury failed to comply with its own procedures. From that judgment, the Police Jury appeals.

Three sets of property owners, the Ken-nedys, Wiltzs, and Triches filed petitions requesting zoning reclassification as follows:

ACTION WILTZ PETITION TRICHE KENNEDY PETITION PETITION
All Documents Necessary for Valid Petition for Zoning Reclassification Received in the Office of the Parish Administrator March 27, 1979 May 1, October 24 1979 1978
Public Hearing Before Planning Commission April 19, 1979 May 24, Noverrber 1 1979 1978
First Official Action Taken by Police Jury June 4, 1979 August 2, February 5 1979 1979
Petition Granted by Police Jury Augus t 2, 1979 August 2, August 2, 1979 1979

As is indicated by the chart above, several petitions were tabled and all petitions were later granted on August 2, 1979. On that date, Lots 14 and 30 (the Wiltz property), Lots 15 and 31 (the Triche property), and Lots 16 and 32 (the Kennedy property) all in Square 3, Prospect Subdivision in Good Hope were rezoned from R-l (single family residential) to C-l (neighborhood family residential).

Petitioners filed suit seeking a writ of mandamus compelling the St. Charles Police Jury to rescind the zoning reclassification, as well as a judicial declaration that the action taken was null and void. After a full trial on the merits, the court so ruled. From that judgment, which we affirm, defendants appealed.

On appeal defendants argue that the trial court erred in finding that the 90 day period delineated in the St. Charles Parish Zoning Ordinance No. 66-3-11 (XIII) (¶ 4) began on the date a petition was filed with the Parish Planning Commission, that the statute is controlling and takes precedence over custom, and that the statute is not unconstitutionally vague. Additionally, appellants argue that the trial court erred in finding as follows:

“. .. (that) the action taken by the St. Charles Parish Police Jury with regard to the Wiltz, Triche, and Kennedy properties was ‘strange’ or without just cause, and that the Police Jury ‘all of a sudden’ granted three petitions for rezoning which had all been instituted at different times.”

The critical issue in the instant appeal is the definition of “filing” under the Zoning Code. Section XII of the Code requires that the Police Jury take action within 90 days of filing. Once the 90 day period has run, the jury is prohibited from considering any petition, relative to the same property for a period of two years.

“SECTION XII Amendments and Petitions
B. Petitions by property owners for the amendment, supplementation, or change of (zoning classifications) shall be filed with the Police Jury through the Planning Commission. In filing such petitions the following rules shall apply:
3. Whenever a petition is filed requesting a change [in zoning classification], and said petition has been finally acted upon by the Police Jury, or when said petition has received no action on the part of the Police Jury within ninety (90) days, or when said petition has been officially advertised for public hearing but has subsequently been withdrawn either before or after public hearing has been held, then the Police Jury shall not consider any further petition requesting or proposing such change or amendment for the same property within a period of two (2) calendar years ...” (emphasis added).

The Zoning Ordinance allows for Amendment Procedures in Section XIII which provides:

“SECTION XIII Amendment Procedure
No amendment, supplement, or change of the Zoning District Map shall be effective unless and until:
4. A final yea or nay vote shall have been taken on the proposal by the Police Jury within ninety (90) days from the introduction of any ordinance, or the adoption of a motion by the Police Jury, or from the filing of the petition of property owners or owner in correct form.” (emphasis added).

Louis Bisso, who was admitted as an expert in zoning and planning, testified that the 90 day period began to run from the date that the Planning Commission certified the petition as correct in form. Kevin Friloux, the Parish Administrator for the St. Charles Parish Police Jury, testified that there is no procedure for certifying a petition. He also testified that the 90 day rule begins to run after the first official action taken by the police jury subsequent to a public hearing. The third witness was Alfred Green, Administrative Assistant to the St. Charles Parish Police Jury, who testified that when a petition enters the zoning board office, he does not stamp or write the date of entry on the petition, although he does give the petitioner a cash receipt and writes a publication date on the petition.

We agree with the finding of the trial judge that under the plain and unequivocal language of the statute the Police Jury through the Planning Commission is required to keep track of the date of filing and has failed to do so.

Appellant argues that the statute is unconstitutionally vague because the three non-lawyer witnesses presented at trial all had different theories as to the meaning of the statutes. We note that these witnesses were not admitted as experts in statutory construction and were not competent to express opinions on legal theory. We also note that there is a strong presumption in favor of the constitutionality of a statute which must be overcome by weighty evidence. Having already concluded, however, that the statute is clear upon its face, this “make-weight” argument need not be further addressed.

Finally, we address the specification of error relative to the trial court’s comment quoted hereinabove. The comment is pure dicta. If the case had been a jury trial, then counsel could have argued that the allegedly prejudicial comment could have influenced the jury. As the instant appeal was a judge trial, however, the comment is of absolutely no moment.

For the reasons discussed, the judgment of the trial court is affirmed.

AFFIRMED.

STOULIG, J., dissents with written reasons which are attached hereto.

STOULIG, Judge,

dissenting.

I respectfully dissent.

Under the provisions of Zoning Ordinance # 66-3-11 of St. Charles Parish, its Police Jury had 90 days within which to act, by either a yea or nay vote, on a pending petition for the rezoning of property. Failing to do so would in effect constitute a rejection of the petition and under the terms of said ordinance the police jury could not entertain any further petitions for a reclassification of the same property for a period of two years.

This zoning ordinance lacks specificity as to when the 90-day period will commence to run. Because of this omission and the resulting vagueness, the experts have a divergence of opinion as to when the 90-day period begins under the reclassification procedure set forth in the ordinance. In fact, one expert gave three different points in time when the period began when confronted with circumstances which would render the application of this time limit impractical and absurd. From the testimony adduced the precise moment when the time limitation began to run is not ascertainable and therefore one cannot, without speculating, determine if the Police Jury’s action was timely.

In my opinion the evidentiary posture of this case is such as to warrant the conclusion that the plaintiffs have failed to bear the burden of proof necessary to invalidate and nullify Ordinances Nos. 66-3-527, 66-3-528 and 66-3-529 of St. Charles Parish for the want of compliance with the 90-day time limit of Zoning Ordinance No. 66-3-11 of St. Charles Parish.

      . The current property owner is Good Hope Refineries although, the original petitions were filed in the names of the former owners. The lots are adjoining parcels and are used by the current owner as one contiguous parking lot.