author: MARCUS, Justice.

text:
    Oliver J. DONAHUE d/b/a O. J. Donahue Construction Company v. BOARD OF LEVEE COMMISSIONERS OF the ORLEANS LEVEE DISTRICT, et al.
    Nos. 81-C-2761, 81-C-2762.
    Supreme Court of Louisiana.
    April 5, 1982.
    Art J. Lentini, and Stephen T. Wimberly, of Hall, Lentini, Mouledoux & Wimberly, Metairie, for plaintiff-applicant in No. SIC-2761 and for defendant-respondent in No. 81-C-2762.
    Richard J. McGinity, of McGinity & McGinity, Gordon F. Wilson, Jr., of Dodge, Friend, Wilson & Spedale, Gary L. Keyser, Asst. Atty. Gen., A. Kell Mclnnis, III, Staff Atty., New Orleans, for defendants-respondents in No. 81-C-2761.
    H. Bruce Shreves, and Lloyd N. Shields, of Simon, Peragine, Smith & Redfearn, New Orleans, for plaintiffs-applicants in No. 81-C-2762 and for defendants-respondents in No. 81-C-2761.
    Richard J. McGinity, of McGinity & McGinity, Gordon F. Wilson, of Dodge, Friend, Wilson & Spedale, Gary L. Keyser, Asst. Atty. Gen., A. Kell Mclnnis, Staff Atty., New Orleans, for defendant-respondent in No. 81-C-2762.
   MARCUS, Justice.

This action involves a dispute over the letting of a contract to demolish a bridge under the public contracts law.

The Board of Levee Commissioners of the Orleans Levee District sought to demolish the Bayou St. John bridge on Lakeshore Drive in New Orleans and, in accordance with the public contracts law, advertised for bids. On April 29, 1980, the sealed bids were opened. Oliver J. Donahue, d/b/a 0. J. Donahue Construction Company, was the lowest of seven bidders. The next lowest bid, which was $26,860 higher than the Donahue bid, was submitted by Stephen Lambert, d/b/a Stephen Lambert, Contractor. On April 30, 1980, the State Licensing Board for Contractors notified the Levee Board that Donahue did not, in its opinion, have the appropriate contractor’s license. It advised the Levee Board that either a “Class II” or “Class VII” license was necessary, rather than a “Class I” license such as was held by Donahue. Based on this information, the Levee Board passed a formal resolution on May 21, 1980, rejecting Donahue’s bid and acknowledging that Lambert, the second lowest bidder, had agreed to extend his bid for an additional thirty days or a total of ninety days from the date of the bid opening.

Donahue instituted this action against the Levee Board and the Contractors Board to enjoin the Levee Board from awarding the contract to demolish the bridge to anyone other than plaintiff and for a declaratory judgment on the validity of the opinion of the Contractors Board concerning the sufficiency of plaintiff’s license. Vaughn intervened in opposition to both plaintiff and defendants alleging that since neither Donahue nor Lambert possessed the proper license or qualifications to perform the work contemplated by the contract, the Levee Board should award the contract to intervenor. After a hearing, the trial court enjoined the Levee Board from awarding the contract to anyone other than Donahue and ordered said Board to award the contract to Donahue. The court further ordered that the opinion expressed by the Contractors Board be annulled insofar as it held that Donahue was not properly licensed or classified to perform the project. The judgment was signed on July 14, 1980. Two days later (July 16), the Levee Board, pursuant to said judgment, awarded the contract to Donahue.

On July 29, 1980, within the delay for taking an appeal from a preliminary injunction, Lambert was granted permission to intervene and take a suspensive appeal. As a result of this action, the Levee Board became concerned about the additional delay involved and, in an effort to expedite the matter, formally adopted a resolution on August 20, 1980, rejecting all bids and ordering that the project be readvertised. Subsequently, both the Levee Board and the Contractors Board perfected devolutive appeals.

The Levee Board filed a motion to dismiss all appeals because of mootness created by the action of the Board on August 20, 1980 rejecting all bids on the project. The court of appeal dismissed all appeals on the ground that the Levee Board acquiesced in the injunction by awarding the contract to Donahue on July 16. The court of appeal then granted a rehearing and held on rehearing that the trial court abused its discretion in ordering that the contract be awarded to Donahue and that the August 20, 1980 action by the Levee Board rejecting all bids be maintained. Therefore, it vacated the judgment of the district court. We granted the applications of both Donahue and Lambert to review the correctness of that decision.

The issues presented for our determination are: (1) whether the Levee Board was correct in rejecting the bid of Donahue, who was otherwise the lowest responsible bidder, because he was not properly licensed and (2) whether, once the Levee Board had accepted Donahue’s bid, it could thereafter reject all bids.

La.R.S. 37:2150-63 set out the procedure for licensing contractors and La.R.S. 37:2156.1(c) establishes the following major classifications of licenses:

(1) Building construction
(2) Highway, street and bridge construction
(3) Heavy construction
(4) Municipal and public works construction
(5) Electrical work
(6) Mechanical work
(7) Specialty — A contractor performing work other than in the above major classifications must qualify as a specialty contractor in a subclassification as provided for in R.S. 37:2156.2 hereafter.

All parties agree that categories 3 through 6 are not relevant here. They do not agree, however, on which one of the remaining three categories (1, 2 and 7) is the proper one for the demolition of a bridge. La.R.S. 37:2156.2 lists the subclassifications of each major classification and provides in pertinent part:

I. Building construction
19. Rigging, house moving, wrecking and dismantling
II. Highway, Street and Bridge Construction
12. Concrete bridges, over and underpasses
[VII]. A person may obtain a specialty classification under any of the above listed subclassifications or under any other subclassifieation not so listed in which he is presently performing work.

La.R.S. 37:2159 provides:

A. The board before issuing a license to any contractor, shall state the contractor’s classification on such license, according to the classification requested by said contractor and for which he has completed all of the requirements.
B. After classification, the licensee shall not be permitted to bid or perform any type or types of work not included in the classification under which his license was issued.
C. After classification as above provided for, the licensee is restricted in his bidding and his construction, to his proper classification. However, a licensee may apply for and receive additions to or changes in his classification by making application therefor, successfully completing the written examination, and paying the required fees. Additions or changes to an existing license shall become effective after completion of the above requirements, and upon board approval at the next regularly scheduled meeting.

La.R.S. 38:2212, at the time Donahue’s bid was submitted, provided in pertinent part:

All public work exceeding the sum of ten thousand dollars .. . shall be advertised and let by contract to the lowest responsible bidder who had bid according to the contract, plans, and specifications as advertised.... (Emphasis added.)

There is no dispute that Donahue submitted the lowest bid and that but for the question of whether he possessed the proper license to bid on the job he would have been the lowest responsible bidder. It is argued that Donahue did not have the proper contractor’s license; therefore, he was not a “responsible” bidder and the Levee Board correctly rejected his bid. We do not agree.

Donahue had a Class I (Building construction) license. This classification is the only one that lists “wrecking and dismantling,” the type of work involved in the demolition of the bridge in question. While Class II license includes “bridge construction,” it does not mention demolition. Therefore, Donahue was under the impression that he had the proper license to bid on the job. On the other hand, the Contractors Board considered that the appropriate license for the project was either a Class II (Highway, street and bridge construction) or a Class VII (Specialty) license. The consulting civil engineer retained by the Levee Board for the project was uncertain as to which classification of licenses was necessary. Moreover, the bid plans and specifications did not list the class of license required to bid on the job. Nor had the Contractors Board promulgated any regulation under its rule-making authority to cover the situation. Additionally, the assistant director of the Contractors Board testified that, by custom, a Class VII specialty license authorizes an already-licensed contractor to demolish any kind of structure regardless of whether it falls within his license classification. He further stated that a Class I license holder, such as Donahue, could obtain a Class VII license by merely applying for it and paying the $50 fee. No further written examination, financial statements, or recommendations would be required.

Under these circumstances, we conclude that Donahue was properly licensed to bid on the job and that the Levee Board erred in rejecting his bid since he was the lowest responsible bidder. Hence, the trial court correctly enjoined the Levee Board from awarding the contract to anyone other than Donahue. However, the trial court exceeded its authority by ordering the Levee Board to award the contract to Donahue as La.R.S. 38:2214 empowers a public entity to reject any and all bids. Bartley, Inc. v. Town of Westlake, 237 La. 413, 111 So.2d 328 (1959). Accordingly, the injunction granted was incorrect in that respect.

The remaining issue is whether the Levee Board, once it accepted Donahue’s bid, could thereafter reject all bids. The Levee Board had awarded the contract to Donahue on July 16, 1980, but at its meeting on August 20, 1980, it adopted a resolution rejecting all bids and directing that the project be readvertised.

La.R.S. 38:2214 provides:

The public entity desiring to let a contract for the purchase of materials or supplies, or for the construction of public works, shall, in its resolution providing for the contract or purchase and for the advertisement for bids, designate the time and place that bids will be opened and the contract let; and shall at the place and time specified open the bids and let the contract. The public entity may reject any and ail bids. (Emphasis added.)

La.R.S. 38:2215 provides, in pertinent part:

A. The public entity upon receipt of bids for the undertaking of any public construction contract, shall act within thirty calendar days of such receipt to award said contract to the lowest responsible bidder or reject all bids. However, the awarding authority and the lowest responsible bidder may mutually agree to extend the deadline beyond thirty days....
B. These provisions shall not be subject to waiver.

Together, these statutes mean that the governing authority has thirty calendar days from the opening of the bids to award the contract to the lowest responsible bidder or reject all bids or negotiate an extension of time with the lowest responsible bidder. However, once the public entity has exercised its option and accepted the lowest responsible bidder, it cannot then reject all bids and readvertise the project. Gurtler, Hebert & Company, Inc. v. Orleans Parish School Board, 251 So.2d 51 (La.App. 4th Cir. 1971); see also, Sternberg v. Board of Commissioners of Tangipahoa Drainage Dist. No. 1, 159 La. 360, 105 So. 372 (1925). To hold otherwise would be contrary to the well-established principles of contract law and would permit the possibility of favoritism in public bidding, the very evil which the statute was enacted to prevent. Accordingly, the rejecting of all bids by the Levee Board on August 20, 1980 was improper and without legal effect.

While the injunction issued by the trial court would have had to be modified so as to eliminate that portion ordering the Levee Board to award the contract to Donahue, in view of the subsequent acceptance of the Donahue bid on July 16,1980 and the Levee Board’s inability to reject all bids thereafter, the injunction as originally issued is now appropriate.

DECREE

For the reasons assigned, the judgment of the court of appeal is reversed and set aside and the judgment of the district court is reinstated.

LEMMON, J., concurs.

      .La.R.S. 38:2212 then provided in pertinent part:
      A. (1) All public work exceeding the sum of ten thousand dollars ... shall be advertised and let by contract to the lowest responsible bidder who had bid according to the contract, plans, and specifications as advertised. ...
      (3) The advertisement required by this Section shall be published once a week for three different weeks in a newspaper in the locality, the first advertisement to appear at least fifteen days before the opening of bids; provided that when the advertisement is published in a daily newspaper in the locality, the advertisement shall be published three times within ten days, the first advertisement to appear at least ten days before the opening of bids.
      La.R.S. 38:2212 was amended by Acts 1980, No. 329, and Acts 1981, No. 847. The changes are irrelevant to the issues presented for our determination.

      . The fourth lowest bid, which was $106,000 higher than the Donahue bid, was submitted by Vaughn Demolishing Company, Inc.

      . La.Code Civ.P. art. 3612 provides:
      There shall be no appeal from an order relating to a temporary restraining order.
      An appeal may be taken as a matter of right from an order or judgment relating to a preliminary or final injunction, but such an order or judgment shall not be suspended during the pendency of an appeal unless the court in its discretion so orders.
      An appeal from an order or judgment relating to a preliminary injunction must be taken and a bond furnished within fifteen days from the date of the order or judgment. The court in its discretion may stay further proceedings until the appeal has been decided.
      Except as provided in this article, the procedure for an appeal from an order or judgment relating to a preliminary or final injunction shall be as provided in Book III.

      .La.Code Civ.P. art. 1091 provides:
      A third person having an interest therein may intervene in a pending action to enforce a right related to or connected with the object of the pending action against one or more of the parties thereto by:
      (1) Joining with plaintiff in demanding the same or similar relief against the defendant;
      (2) Uniting with defendant in resisting the plaintiffs demand; or
      (3) Opposing both plaintiff and defendant.
      La.Code Civ.P. art. 2086 provides:
      A person who could have intervened in the trial court may appeal, whether or not any other appeal has been taken.

      . Donahue also filed a rule to show cause why the Levee Board should not be held in contempt for violating the injunction because of the Board’s action on August 20, 1980, in rejecting all bids and ordering readvertisement. After a hearing, the trial court ordered the Levee Board not to do anything inconsistent with the previously-issued injunction, such as reject all bids and readvertise the project. However, the trial court dismissed that portion of the rule pertaining to contempt.

      . 407 So.2d 419 (La.App. 4th Cir. 1981).

      . 407 So.2d 420 (La.App. 4th Cir. 1981).

      . 407 So.2d 421 (La.App. 4th Cir. 1981).

      . 410 So.2d 238 (La. 1981).

      . La.R.S. 37:2153(A) provides:
      The board shall have the power to make by-laws, rules and regulations for the proper administration of this Chapter; to employ such administrative assistants as are necessary; and to fix their compensation. The board is hereby vested with the authority requisite and necessary to carry out the intent of the provisions of this Chapter.

      . Since the Levee Board did not exercise its right to appeal within fifteen days (or seek an order suspending the judgment if it had appealed), La.Code Civ.P. art. 3612, it acquiesced in the judgment by awarding the contract to Donahue. This precluded it from rejecting all bids thereafter. However, acquiescence in the judgment was only binding on the Levee Board and had no effect on the right of Lambert to appeal. La.Code Civ.P. art. 2085 and Comment (h) thereunder.


source: Caselaw Access Project

author: LEMMON, J.,

license: Public Domain

text:
    DELTA AIR LINES, INC. v. Robert GILL, III and Eugene Abadie, D/B/A G & R Imports
    No. 82-C-0538.
    Supreme Court of Louisiana.
    April 21, 1982.
   Re: Robert Gill, III and Eugene Abadie, d/b/a G & R Imports, applying for Remedial writs, Parish of Jefferson, Number 42,-745.

Denied.

LEMMON, J.,

concurs. Relator may assert his grounds for relief in an action for nullity.


author: CALOGERO and MARCUS, JJ.,

text:
    STATE of Louisiana v. Daisy Lee JACKSON.
    No. 82-K-0694.
    Supreme Court of Louisiana.
    April 21, 1982.
   Re: Daisy Lee Jackson, applying for Writs of Certiorari, Prohibition and Mandamus, Parish of East Carroll, Number 23,680.

Denied. Adequate remedy by review in the event of conviction.

CALOGERO and MARCUS, JJ.,

concur in denial but note that trial judge has not been presented and has not yet ruled on a motion for acquittal based on absence of sufficient evidence to support conviction of the crime of attempted shoplifting.


author: LEMMON, J., concurs.

text:
    Jesse L. JAMES v. Lacy C. VANCE.
    No. 82-C-0789.
    Supreme Court of Louisiana.
    April 21, 1982.
   Re: Jesse L. James, applying for writs of Certiorari, or Review, to the Court of Appeal Third Circuit, Parish of Rapides, Number 8620,411 So.2d 706.

Denied.

DIXON, C. J., and DENNIS and WATSON, JJ., would grant the writ.

LEMMON, J., concurs.

Plaintiff failed to prove fault on defendant’s part.


text:
    Santos D. ACOSTA v. Willie DARDAR, et al.
    No. 82-C-0633.
    Supreme Court of Louisiana.
    April 5, 1982.
   In re Commercial Union Assurance Company, applying for supervisory writs. Parish of St. Bernard. No. 31-526.

Denied.

DIXON, C. J., and MARCUS, J., would grant the writ.


text:
    The BANK OF NEW ORLEANS AND TRUST COMPANY, Maryland Casualty Company and Hibernia National Bank in New Orleans v. Donald G. LAMBERT, Sharon W. Lambert, Lambert Aviation, Inc., and Lambert Construction Company, Inc.
    No. 82-C-0659.
    Supreme Court of Louisiana.
    April 5, 1982.
   In re Donald G. Lambert and Sharon W. Lambert, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of St. Tammany. 409 So.2d 294.

Denied.

BLANCHE and WATSON, JJ., would grant the writ.

LEMMON, J., recused.


text:
    In the Matter of D. A. DELAHOUSSAYE, D/B/A Top Crop Seed and Supply Company, et al.
    No. 82-C-0632.
    Supreme Court of Louisiana.
    April 5, 1982.
   In re Commissioner of Agriculture Louisiana Department of Agriculture and State of Louisiana, applying for writ of certiorari, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 409 So.2d 372, 402 So.2d 308.

Writ denied.

MARCUS, J., would grant the writ.


text:
    Leatrice H. GENOLA v. Alton S. GENOLA.
    No. 82-C-0675.
    Supreme Court of Louisiana.
    April 5, 1982.
   In re Mary Forbes Genola, applying for - certiorari, or writ of review, to the Court of Appeal, First Circuit. East Baton Rouge Parish. 409 So.2d 362.

Denied.


text:
    Douglas JOLIVETTE v. CITY OF LAFAYETTE, Dallas Courville & Todd Courville, Maryland Casualty Co., & Houston General Insurance Company.
    No. 82-C-0507.
    Supreme Court of Louisiana.
    April 5, 1982.
   In re Douglas Jolivette, applying for cer-tiorari or writ of review, to the Court of Appeal, Third Circuit. Parish of Lafayette. 408 So.2d 309.

Denied.


text:
    Agnes David LANGLOIS and Francis Gussie Langlois v. David Norman JARREAU and Beverly Ann Jarreau.
    No. 82-C-0676.
    Supreme Court of Louisiana.
    April 5, 1982.
   In re Agnes David Langlois and Francis Gussie Langlois, applying for certiorari or writ of review, to the Court of Appeal, First Circuit. Parish of Pointe Coupee. 409 So.2d 340.

Denied.

DIXON, C. J., would grant the writ.


text:
    June M. OLIVER, Individually and on Behalf of Her Son, Griffith Oliver and Blue Cross v. PARISH OF JEFFERSON, Louisiana Department of Highways and Their Insurer XYZ Insurance Company.
    No. 82-C-0462.
    Supreme Court of Louisiana.
    April 5, 1982.
   In re Louisiana Department of Transportation and Development, applying for writ of certiorari and or review, to the Fourth Circuit, Court of Appeal. Parish of Jefferson. 408 So.2d 275.

Denied.

MARCUS and BLANCHE, JJ., would grant the writ.


text:
    Ferdy George PATTERSON v. Clarence JACKSON, et al.
    No. 82-C-0656.
    Supreme Court of Louisiana.
    April 5, 1982.
   In re Perdy George Patterson, applying for certiorari or writ of review, to the Court of Appeal, First Circuit. Parish of Ascension. 409 So.2d 357.

Denied.


text:
    Roger Dalton SMITH v. LOUISIANA CEMENT COMPANY, INC.
    No. 82-C-0650.
    Supreme Court of Louisiana.
    April 5, 1982.
   In re Roger Dalton Smith, applying for writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 405 So.2d 687.

Denied.

CALOGERO, DENNIS and WATSON, JJ., would grant the writ.


text:
    SOUTHBEND CONTRACTORS, INC. v. PARISH OF JEFFERSON, Jefferson Parish Council and East Jefferson Water District No. 1.
    No. 82-C-0684.
    Supreme Court of Louisiana.
    April 5, 1982.
   In re Southbend Contractors, Inc., applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Jefferson. 408 So.2d 1158.

Denied.

LEMMON, J., would grant the writ.


text:
    Henry Burk STERLING, Jr., et al. v. C. MARSHALL MARTIN, INC., et al.
    No. 82-C-0646.
    Supreme Court of Louisiana.
    April 5, 1982.
   In re Henry Burk Sterling, Jr., et al., applying for writs of certiorari and review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 409 So.2d 1231.

Writ denied.

DIXON, C. J., would grant the writ.


text:
    Jerry A. STEWART v. SAM WALLACE INDUSTRIAL COMPANY and/or Swico, Inc. and/or Sam P. Wallace, Inc., Highlands Insurance Company and Shell Oil Company.
    No. 82-C-0674.
    Supreme Court of Louisiana.
    April 5, 1982.
   In re Jerry A. Stewart, applying for writs of certiorari or review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 409 So.2d 335.

Writ denied. The result is correct.

DENNIS and LEMMON, JJ., would grant the writ.


text:
    Jerry A. STEWART v. SAM WALLACE INDUSTRIAL COMPANY, and/or Swico, Inc. and/or Sam P. Wallace, Inc., Highlands Insurance Company, and Shell Oil Company.
    No. 82-C-0678.
    Supreme Court of Louisiana.
    April 5, 1982.
   In re Sam P. Wallace Company, Inc., Shell Oil Company and Highlands Insurance Company, applying for writs of certiorari or review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 409 So.2d 335.

Writ denied.


text:
    William STRACENER v. UNITED STATES FIDELITY & GUARANTY COMPANY.
    No. 82-C-0565.
    Supreme Court of Louisiana.
    April 5, 1982.
   In re William Stracener, applying for cer-tiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Calcasieu. 410 So.2d 1220.

Granted.


text:
    Watts R. WEBB, M.D. v. Frank A. HUGHES.
    No. 82-C-0660.
    Supreme Court of Louisiana.
    April 5, 1982.
   In re Frank R. Hughes, applying for writ of certiorari or review, to the Fourth Circuit, Court of Appeals. Parish of Orleans, Civil District Court. 408 So.2d 1183.

Denied.


text:
    STATE of Louisiana, ex rel. Gerald R. WILSON v. STATE of Louisiana and Parish of Orleans.
    No. 82-KH-0802.
    Supreme Court of Louisiana.
    April 8, 1982.
   In re Gerald R. Wilson, applying for writ of habeas corpus. Parish of Orleans. No. 286-A72E.

The application is transferred to the district court for immediate action. See State v. Chaney, 384 So.2d 442 (La.1980); State v. Watkins, 399 So.2d 153 (La.1981).


text:
    STATE of Louisiana v. Lee MATTHEWS.
    No. 82-K-0927.
    Supreme Court of Louisiana.
    April 15, 1982.
   In re Lee Matthews, applying for writs of certiorari, mandamus and prohibition. Parish of Jefferson.

Writ granted in part. The trial judge has no power to grant the witness immunity other than as provided by CCrP article 439.-1, and this ruling is reversed. Otherwise, the writ is denied on the showing made. Assuming that the witness was called by the defense she may be cross-examined by the state, and, if otherwise appropriate, impeached with a prior inconsistent statement (previously suppressed as having been given in violation of her right to counsel).


text:
    Roy L. COLVIN v. CITY OF BOSSIER CITY, et al.
    No. 82-C-0741.
    Supreme Court of Louisiana.
    April 16, 1982.
   In re Roy L. Colvin, applying for writ of certiorari, or review, to the Second Circuit, Court of Appeal. Parish of Bossier. 412 So.2d 672.

Denied.


text:
    In the Case of John C. HAMNER.
    No. 82-C-0733.
    Supreme Court of Louisiana.
    April 16, 1982.
   In re John C. Hamner, applying for writs of certiorari or review, to the Court of Appeal, First Circuit. Parish of Terre-bonne. 411 So.2d 567.

Granted.


text:
    Sarah JEFFERSON, et al. v. Norman LANDWEHR, et al.
    No. 82-C-0624.
    Supreme Court of Louisiana.
    April 16, 1982.
   In re Sarah Jefferson and Sharon Coleman, Individually and as Administratrix of the Estate of Her Minor Son, Jamar Coleman, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of Tangipahoa. 409 So.2d 351.

Writ denied.

DIXON, C. J., and DENNIS and LEM-MON, JJ., would grant the writ.


text:
    LOUISIANA STATE BAR ASSOCIATION v. Earl J. SCHMITT, Jr.
    No. 82-0-0378.
    Supreme Court of Louisiana.
    April 16, 1982.
   In re Earl J. Schmitt, Jr., applying for reinstatement. Parish of Orleans. No. 59001.

Application denied.


text:
    Donald C. SCAFIDI v. Peter P. JOHNSON.
    No. 82-C-0670.
    Supreme Court of Louisiana.
    April 16, 1982.
   In re Donald C. Scafidi, applying for cer-tiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 409 So.2d 316.

Granted.


text:
    STATE of Louisiana ex rel. Reginald AMBROSE v. STATE of Louisiana.
    No. 82-KH-0655.
    Supreme Court of Louisiana.
    April 16, 1982.
   In re Reginald Ambrose, applying for remedial writs. Parish of Orleans. No. 257-866.

Denied.


text:
    STATE of Louisiana v. Jeffrey A. BABCHIN and Bernadette Patterson.
    No. 82-K-0610.
    Supreme Court of Louisiana.
    April 16, 1982.
   In re Jeffrey A. Babchin and Bernadette Patterson, applying for writs of certiorari, writ of review, prohibition and mandamus. Parish of Jefferson. No. 82-88.

Denied.


text:
    STATE of Louisiana v. Milton BURDINE, Jr.
    No. 82-K-0855.
    Supreme Court of Louisiana.
    April 16, 1982.
   In re Milton Burdine, Jr., applying for writ of certiorari, writ of review, prohibítion, mandamus and for a stay order. Parish of Orleans. No. 286-335.

Denied.


text:
    STATE of Louisiana ex rel. Benson CROON v. Warden: Roger AUCION.
    No. 82-KH-0703.
    Supreme Court of Louisiana.
    April 16, 1982.
   In re Benson Croon, applying for writ of habeas corpus. Parish of East Baton Rouge. No. 10-81982.

Denied.


text:
    STATE of Louisiana, ex rel. Anthony C. DUKES v. STATE of Louisiana.
    No. 81-KH-1878.
    Supreme Court of Louisiana.
    April 16, 1982.
   In re Anthony C. Dukes, applying for reconsideration of denied writ of February 19, 1982. La., 412 So.2d 82, Parish of Orleans. No. 261-681.

Relator is advised that the district court has been directed to act on relator’s application for mandamus. Application for rehearing is therefore denied.


text:
    STATE of Louisiana v. Emmett EDWARDS.
    No. 82-K-0274.
    Supreme Court of Louisiana.
    April 16, 1982.
   In re Emmett Edwards, applying for writs of review, certiorari, and mandamus. Parish of Ascension. No. 48906.

Writ denied.

MARCUS, J., would grant the writ.


text:
    STATE of Louisiana ex rel. Gerard EDWARDS v. Honorable Ross MAGGIO, Warden, Louisiana State Penitentiary, Angola, Louisiana.
    No. 82-KH-0416.
    Supreme Court of Louisiana.
    April 16, 1982.
   In re Gerard Edwards, applying for remedial writ and writ of mandamus. Parish of Orleans. No. 265-068.

Denied.


text:
    STATE of Louisiana ex rel. William F. FORD, Jr. v. Don HATHAWAY, Sheriff, Caddo Parish.
    No. 82-KH-0744.
    Supreme Court of Louisiana.
    April 16, 1982.
   In re William F. Ford, Jr., applying for writ of habeas corpus. Parish of Caddo. First Judicial District.

Denied.


text:
    STATE of Louisiana, ex rel. Larry FOWLKES v. FOURTEENTH JUDICIAL DISTRICT COURT, PARISH OF CALCASIEU, STATE OF LOUISIANA.
    No. 81-KH-1780.
    Supreme Court of Louisiana.
    April 16, 1982.
   In re Larry Fowlkes, applying for writ of mandamus. Parish of Calcasieu. No. 1814-75.

Denied.


text:
    STATE of Louisiana v. Michael HENDERSON.
    No. 82-CK-0712.
    Supreme Court of Louisiana.
    April 16, 1982.
   In re Michael Henderson, applying for writs of certiorari, prohibition, mandamus and for a stay order. Parish of Orleans. No. 194-731 c/w 194-659.

Denied.


text:
    STATE of Louisiana ex rel. Clinton C. HOWARD, Jr. v. Walter L. SENTEEN, Jr.
    No. 82-KH-0785.
    Supreme Court of Louisiana.
    April 16, 1982.
   In re Clinton C. Howard, Jr., applying for writ of mandamus. Parish of Orleans.

Denied. Moot. Motion to dismiss appeal was granted by this Court March 1, 1982.


text:
    STATE of Louisiana ex rel. Russell HUGHES, Jr. v. Ed SAPIR & The Municipal Court of Louisiana.
    No. 82-KH-0826.
    Supreme Court of Louisiana.
    April 16, 1982.
   In re Russell Hughes, Jr., applying for writ of habeas corpus. Parish of Orleans.

Writ denied. Trial in Municipal Court has been set for April 19, 1982.


text:
    STATE of Louisiana ex rel. Donald LANDRY v. Honorable Matthew BRANIFF.
    No. 82-KH-0921.
    Supreme Court of Louisiana.
    April 16, 1982.
   In re Donald Landry, applying for remedial writs. Parish of Orleans. No. 281-015.

Despite relator’s contrary assertion, the district court has informed this Court that relator has not filed a motion for bail pending appeal. This application is therefore transferred to the district court for action.


text:
    STATE of Louisiana ex rel. Walter MARTIN. v. Oliver P. SCHULINGKAMP, Judge, Orleans Parish, Criminal District Court.
    No. 82-KH-0442.
    Supreme Court of Louisiana.
    April 16, 1982.
   In re Walter Martin, applying for writs of certiorari, prohibition and mandamus. Parish of Orleans. Criminal District Court. No. 272-043.

Denied. Moot.


text:
    STATE of Louisiana v. Edward Frank RAINEY.
    No. 82-K-0900.
    Supreme Court of Louisiana.
    April 16, 1982.
   In re Edward Frank Rainey, applying for writs of certiorari, prohibition and mandamus and motion for stay order. Parish of Cameron. No. 27035.

Denied, on the showing made. Adequate remedy by review in event of conviction.


text:
    STATE of Louisiana, ex rel. Edwardo F. ROBINSON v. CALCASIEU PARISH JAIL, STATE OF LOUISIANA.
    No. 82-KH-0714.
    Supreme Court of Louisiana.
    April 16, 1982.
   In re Edwardo F. Robinson, applying for remedial writs. Calcasieu Parish.

Denied. The court has been informed by prison authorities that relator was given the legal materials sought by him.


text:
    STATE of Louisiana, ex rel. Eduardo F. ROBINSON v. Wayne F. McELVEEN (Sheriff), et al.
    No. 82-KH-0658.
    Supreme Court of Louisiana.
    April 16, 1982.
   In re Eduardo F. Robinson, applying for writs of mandamus. Parish of Calcasieu.

Denied. Relator must first file in the district court.


text:
    STATE of Louisiana, ex rel. Eduardo F. ROBINSON v. Wayne F. McELVEEN (Sheriff), et al.
    No. 82-KH-0727.
    Supreme Court of Louisiana.
    April 16, 1982.
   In re Eduardo F. Robinson, applying for writ of mandamus. Parish of Calcasieu.

Denied. Relator must first apply to the district court.


text:
    STATE of Louisiana v. Steve SIMS.
    No. 82-K-0689.
    Supreme Court of Louisiana.
    April 16, 1982.
   In re Steve Sims, applying for writs ot certiorari, prohibition and mandamus. Parish of St. Charles. No. 81277.

Writ denied.


text:
    STATE of Louisiana v. Stephanie STILLEY.
    No. 82-K-0709.
    Supreme Court of Louisiana.
    April 16, 1982.
   In re State of Louisiana, through the Assistant District Attorney, Frank L. Koles, III, applying for writs of certiorari, prohibition and mandamus. Parish of Livingston. No. 38648.

Writ granted and treated as an appeal.


text:
    STATE of Louisiana, ex rel. Lyman THOMPSON v. John JOYCE, Judge, Division “E” Fourth Judicial District Court.
    No. 81-KH-3223.
    Supreme Court of Louisiana.
    April 16, 1982.
   In re Lyman Thompson, applying for reconsideration of denied writ of March 19, 1982. La., 412 So.2d 611, Ouachita Parish. No. 39175.

Denied.


text:
    STATE of Louisiana v. Gary TONEY and John Kelly.
    No. 82-K-0695.
    Supreme Court of Louisiana.
    April 16, 1982.
   In re, Gary Toney and John Kelly, applying for writs of certiorari, prohibition and mandamus. Parish of East Carroll. Nos. 23693 and 23684.

Denied.


text:
    STATE of Louisiana v. Michael VERRETT.
    No. 82-K-0696.
    Supreme Court of Louisiana.
    April 16, 1982.
   In re State of Louisiana, through the District Attorney, Harry F. Connick, applying for writ of certiorari. Parish of Orleans. No. 280-731.

Granted.


text:
    STATE of Louisiana, ex rel. Terry Joe WALKER v. STATE of Louisiana.
    No. 82-KH-0746.
    Supreme Court of Louisiana.
    April 16, 1982.
   In re Terry Joe Walker, applying for writ of habeas corpus. DeSoto Parish. Nos. 45440 and 45584.

Denied.


text:
    STATE of Louisiana v. Lenton YOKUM.
    No. 82-K-0597.
    Supreme Court of Louisiana.
    April 16, 1982.
   In re Lenton Yokum, applying for writ of certiorari, prohibition, mandamus and stay order. Parish of Calcasieu. No. 2307-80.

Denied.

DENNIS, J., would grant the writ.


text:
    SUCCESSION OF Camille Frank COMEAUX.
    No. 82-C-0901.
    Supreme Court of Louisiana.
    April 16, 1982.
   In re Teresa Blanco Comeaux, applying for supervisory writs. Parish of St. Mary. No. 10833.

Denied. Relator must first apply to the court of appeal.


text:
    SUCCESSION OF Cedric Jack TRUE.
    No. 82-C-0535.
    Supreme Court of Louisiana.
    April 16, 1982.
   In re Mrs. Anne True Meyer, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Orleans Parish. 410 So.2d 301.

Denied.

DIXON, C. J., and DENNIS and LEM-MON, JJ., would grant the writ.


text:
    Joel TYSON and Alma Tyson v. AMERICAN INDEMNITY COMPANY.
    No. 82-C-0699.
    Supreme Court of Louisiana.
    April 16, 1982.
   In re Joel Tyson and Alma Tyson, applying for writ of certiorari, to the First Circuit, Court of Appeal. Parish of East Baton Rouge. 411 So.2d 498.

Writ denied.


text:
    Gloria C. Cisneros, Wife of/and Marco CISNEROS v. Elizabeth C. Ferro, Wife of/and Gerald FERRO, et al.
    No. 82-C-0828.
    Supreme Court of Louisiana.
    April 21, 1982.
   In re Gloria C. Cisneros, Wife of/and Marco Cisneros, applying for writ of certio-rari, or review, to the Court of Appeal, Fourth Circuit. Civil District Court. Parish of Orleans. 411 So.2d 1212.

Denied.

DIXON, C. J., and CALOGERO and WATSON, JJ., would grant the writ.


text:
    Jerry L. COOLEY v. Valerie Van Dyke COOLEY.
    No. 82-C-0769.
    Supreme Court of Louisiana.
    April 21, 1982.
   In re Valerie Van Dyke Cooley, applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Beauregard. 411 So.2d 750.

Granted.


text:
    In the Matter of the Succession of Ted F. DUNHAM, Sr.
    No. 82-C-0776.
    Supreme Court of Louisiana.
    April 21, 1982.
   In re Richard E. Dunham, Sr., applying for supervisory writs. Parish of East Baton Rouge. No. 29870.

Denied.


text:
    Steve DYE v. KEAN’S d/b/a Red Stick Custom Apparel & Linen Service, et al. Leslie LANDER v. KEAN’S d/b/a Red Stick Custom Apparel & Linen Service, et al.
    No. 82-C-0756.
    Supreme Court of Louisiana.
    April 21, 1982.
   In re Steve Dye and Leslie Lander, applying for writs of certiorari or review, to the Court of Appeal, First Circuit. Parish of LaFourche. Nos. 35689 and 35690.

Denied.


text:
    Betty Oliver LABORDE and Gene Arthur Laborde v. EAGLE TRUCKING COMPANY, Lincoln Insurance Company, Guarantee Insurance Company & Felix Porta.
    No. 82-C-0772.
    Supreme Court of Louisiana.
    April 21, 1982.
   In re Betty Oliver Laborde and Gene Arthur Laborde, applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit. Parish of Caddo. 409 So.2d 1266.

Denied.

DENNIS, J., would grant the writ.


text:
    LEENERTS FARMS, INC. v. Kenneth R. ROGERS, et al.
    No. 82-C-0770.
    Supreme Court of Louisiana.
    April 21, 1982.
   In re Leenerts Farms, Inc., applying for writ of certiorari, or review, to the Court of Appeal, First Circuit. Parish of Pointe Coupee. 411 So.2d 576.

Granted.


text:
    Tex C. MERCER v. COLUMBIA EQUIPMENT COMPANY, et al.
    No. 82-C-0773.
    Supreme Court of Louisiana.
    April 21, 1982.
   In re Columbia Equipment Co., Inc., applying for writ of certiorari, or review to the Court of Appeal, Second Circuit. Parish of Bossier. 409 So.2d 1285.

Denied.

MARCUS, DENNIS and BLANCHE, JJ., would grant the writ.


text:
    William J. NELSON v. CONTINENTAL CASUALTY COMPANY d/b/a CNA Insurance and the State of Louisiana Employees Uniform Group Insurance Program.
    No. 82-C-0809.
    Supreme Court of Louisiana.
    April 21, 1982.
   In re William J. Nelson, applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit. Caddo Parish. 412 So.2d 701.

Denied.

LEMMON, J., would grant the writ.


text:
    Jasper PIRELLO v. TRIANGLE ENTERPRISES, INC.
    No. 82-C-0796.
    Supreme Court of Louisiana.
    April 21, 1982.
   In re Triangle Enterprises, Inc., applying for writ of certiorari or review, to the First Circuit, Court of Appeal. Parish of Ascension. 411 So.2d 522.

Denied. The result is correct.

DIXON, C. J., and MARCUS and LEM-MON, JJ., would grant the writ.


text:
    Clell M. RICHARDS, et al. v. Magee MARTIN, et al.
    No. 82-C-0762.
    Supreme Court of Louisiana.
    April 21, 1982.
   In re Odom Graves, Sheriff of Livingston Parish, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Livingston Parish. 411 So.2d 1153.

Denied.

MARCUS, J., would grant the writ.


text:
    Doyle SMITH, Husband of a Mrs. Doyle Smith v. Willie WHITE.
    No. 82-C-0852.
    Supreme Court of Louisiana.
    April 21, 1982.
   In re Willie White, applying for certiora-ri, or writ of review, and stay order, to the Court of Appeal, Third Circuit. Parish of LaSalle. 411 So.2d 731.

Denied.

CALOGERO and LEMMON, JJ., would grant the writ.


text:
    Margaret Aucoin SOLAR v. Foster J. SOLAR.
    No. 82-C-0761.
    Supreme Court of Louisiana.
    April 21, 1982.
   In re Foster J. Solar, applying for certio-rari, or writ of review, to the Court of Appeal, First Circuit. Parish of St. Mary. No. 14574.

Denied.


text:
    STATE of Louisiana in the Interest of Spencer COURTNEY. STATE of Louisiana in the Interest of Charles A. COURTNEY.
    No. 82-CK-0774.
    Supreme Court of Louisiana.
    April 21, 1982.
   In re Spencer Courtney and Charles A. Courtney, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of St. Tammany. 411 So.2d 593.

Denied.


text:
    STATE of Louisiana in the Interest of Gerald HICKERSON.
    No. 82-CK-0794.
    Supreme Court of Louisiana.
    April 21, 1982.
   In re State of Louisiana, through the District Attorney, Ossie Brown, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of East Baton Rouge. 411 So.2d 585.

Writ denied.

LEMMON, J., would grant the writ.


text:
    STATE of Louisiana v. Allan LABORDE.
    No. 82-K-0797.
    Supreme Court of Louisiana.
    April 21, 1982.
   In re Allan Laborde, applying for writ of review of certiorari. Parish of Avoyelles. Nos. 40635 and 82-1655.

Denied.


text:
    STATE of Louisiana v. Jeffery MOE.
    No. 82-K-0808.
    Supreme Court of Louisiana.
    April 21, 1982.
   In re Jeffery Moe, applying for writ of certiorari. East Feliciana Parish. No. 3-82-189.

Denied. Moot.


text:
    STATE of Louisiana v. Peggy A. MOORE.
    No. 82-K-0800.
    Supreme Court of Louisiana.
    April 21, 1982.
   In re State of Louisiana, through the Assistant District Atty., John H. Craft, applying for writ of certiorari and review. Parish of Orleans. No. 283-951.

Granted.


text:
    STATE of Louisiana v. Jesus RUIZ and Geoffrey Austin Sweeney.
    No. 82-K-0943.
    Supreme Court of Louisiana.
    April 21, 1982.
   In re Jesus Ruiz and Geoffrey Austin Sweeney, applying for writ of review. Parish of Ouachita. No. 40034.

Writ denied. Adequate remedy on appeal in event of conviction.


text:
    Franklin L. WHITE v. C. F. INDUSTRIES, INC., et al.
    No. 82-C-0798.
    Supreme Court of Louisiana.
    April 21, 1982.
   In re Franklin L. White, applying for certiorari or writ of review, to the Court of Appeal, First Circuit. Parish of Ascension,. 411 So.2d 511.

Denied.

LEMMON, J., would grant the writ and will assign reasons.


text:
    John W. WOMACK, et al. v. WILLIS-KNIGHTON CLINIC, et al.
    No. 82-C-0795.
    Supreme Court of Louisiana.
    April 21, 1982.
   In re John W. Womack and Mary P. Womack, applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit. Parish of Caddo. 412 So.2d 629.

Denied.


text:
    STATE of Louisiana v. B. W. BRISTER.
    No. 82-K-1002.
    Supreme Court of Louisiana.
    April 26, 1982.
   In re B. W. Brister, applying for writs of certiorari, review, prohibition, habeas corpus, mandamus and stay order. First Parish Court. Parish of Jefferson. No. 411-922.

Denied.


text:
    STATE of Louisiana v. Vivian Lee X KAHEY and Sheral Diane X Kahey.
    No. 82-K-1004.
    Supreme Court of Louisiana.
    April 26, 1982.
   In re Vivian Lee X Kahey and Sheral Diane X Kahey, applying for writs of cer-tiorari, prohibition, mandamus and stay order. Sabine Parish. No. 28281.

Denied.


text:
    STATE of Louisiana v. Christopher J. REBSTOCK.
    No. 82-K-0910.
    Supreme Court of Louisiana.
    April 27, 1982.
   In re Christopher J. Rebstock, applying for writs of certiorari, prohibition, mandamus and a stay order. Parish of Jefferson. No. 82-67.

Writ granted. All proceedings stayed.


text:
    STATE of Louisiana v. Otis BURNETT.
    No. 82-K-1023.
    Supreme Court of Louisiana.
    April 28, 1982.
   In re Otis Burnett, applying for writs of certiorari, prohibition, mandamus and a stay order. Parish of Orleans. No. 287-629.

Denied on the showing made.


text:
    STATE of Louisiana v. Kevin GAIDE, Ronald Polaczyk and David Laclare.
    No. 82-K-1031.
    Supreme Court of Louisiana.
    April 29, 1982.
   In re Kevin Gaide, Ronald Polaczyk and David Laclare, applying for writs of habeas corpus, certiorari, prohibition, mandamus, and stay order. Parish of St. Mary. Nos. 112491, 112497 and 112492.

Denied on showing made.


author: GARRISON, Judge.

text:
    SOUTHERN SCRAP MATERIAL CO., LTD., Boland Marine and Manufacturing Co., Inc. and Lane & Company, Inc. v. The STATE of Louisiana, Through VARIOUS SUBDIVISIONS, AGENCIES AND BOARDS, Including but not Limited to the Board of Commissioners of the Port of New Orleans; The Department of Transportation and Development, Office of Highways; The City of New Orleans and Boh Brothers Construction Co., Inc., Each of Which are named Individually as Defendants.
    No. 12494.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 1, 1982.
    Rehearings Denied May 19, 1982.
    Herman & Herman, Russ M. Herman, Joseph Boyd, Gen. Counsel, New Orleans, for plaintiffs-appellants.
    Phelps, Dunbar, Marks, Claverie & Sims, Charles M. Lanier and Danny G. Shaw, New Orleans, for defendant-appellee, Bd. of Com’rs of the Port of New Orleans.
    Doran & Kivett, Philip K. Jones, Marshall W. Wroten, Robert J. Jones and William J. Doran, Jr., Sp. Asst, to Gen. Counsel, State of Louisiana, Dept, of Transp. and Development, Baton Rouge, for the State of Louisiana, Dept, of Transp. and Development, defendant-appellee.
    Salvador Anzelmo, City Atty. for the City of New Orleans, Galen S. Brown, Deputy City Atty., New Orleans, for defendant-ap-pellee, The City of New Orleans.
    Deutsch, Kerrigan & Stiles, Ralph L. Kas-kell, Jr., Victor E. Stilwell, Jr. and Matt J. Farley, New Orleans, for defendant-appel-lee, Boh Bros. Const. Co., Inc.
    Before GULOTTA, GARRISON and BARRY, JJ.
   GARRISON, Judge.

This is an appeal from a judgment of the district court, dismissing plaintiffs’ suit for an injunction. From that judgment, which we affirm in part and remand in part, plaintiffs appeal.

In the instant appeal, a brief historical synopsis appears to be necessary: In 1952 plaintiff, Southern Scrap Material Company, began the long process of obtaining a waterfront site. After several skirmishes with the Board of Commissioners of the Port of New Orleans, Southern Scrap finally acquired a site in 1957. In order to obtain the site, Southern Scrap was required to give up lease rights to the Tidewater Terminal Company that Southern Scrap had purchased. Part of the consideration for the transfer was “easy ingress and egress” to the new site.

The lease of the new site was passed on June 1, 1957. As consideration, the Board obligated itself to construct and maintain a service road to plaintiffs’ business. The lease, however, proved to be ambiguous and resulted in suit between the parties. The suit was settled by the execution of a new and amended lease dated March 16, 1961, COB 688C/48, providing as follows:

“WHEREAS, the parties hereto as of March 14, 1957, entered into a certain lease whereby Lessor leased unto Lessee on the terms and conditions therein set forth, two certain tracts of land on the east side of the Inner Harbor-Navigation canal north of Florida Avenue in the City of New Orleans, Louisiana, comprising approximately TWENTY AND NINE-TENTHS (20.9) ACRES, all as more fully described in said lease, for a term of ninety-nine (99) years, commencing June 1, 1957; and
“WHEREAS Lessor and Lessee have become involved in litigation concerning the interpretation of said lease in the matter entitled ‘Southern Scrap Material Company, Ltd., vs. Board of Commissioners of the Port of New Orleans’, bearing Docket No. 371-895, Division ‘H’, Docket 5, of the Civil District Court for the Parish of Orleans; and
“WHEREAS the parties hereto have agreed to compromise the above mentioned litigation, and said proposals have been submitted to, and approved by the Court;
“NOW, THEREFORE, in consideration of these premises and of the mutual agreements and promises herein contained (each agreement and promise on the part of the one being the consideration of each and every agreement and promise on the part of the other), the parties hereto have covenanted and agreed, and do hereby covenant and agree as follows, to-wit:
“Effective as of March 16, 1961 that certain lease made as of March 14, 1957, is hereby supplemented and amended, as follows:
* * * * * t
“Paragraph 24, entitled ‘Special Provisions and Conditions:’, is hereby amended by substituting therefor the following paragraph:
“24. SPECIAL PROVISIONS AND CONDITIONS:
“It will be the obligation of Lessor to maintain a shell roadway, not less than twenty (20) feet in width, extending from the paved roadway on the north side of Florida Avenue east side of Inner Harbor-Navigation Canal, thence to Lessor’s Reservation, thence connected with the herein leased premises to the eastern leased line, or Reservation of Lessor, said roadway continuing on Reservation past the northern boundary of the herein leased premises; said roadway shall be maintained by Lessor in a condition suitable for use by vehicles with rubber tires in connection with the operation of Lessee’s business, it -being the intent and purpose of this clause that, in due course, in Lessor’s discretion, said roadway shall be adequately surfaced with black top pavements and maintained by Lessor.”

Shortly thereafter Southern Scrap and Lane & Co., another tenant, undertook at joint expense the improvement of Harbor Road, pursuant to a contract between the Dock Board and tenants.

The dispute giving rise to the instant litigation arises out of a plan instituted by the Dock Board in 1976 to repair the South Bridge approach to the Florida Avenue Bridge. Under the new plan, Harbor Road would no longer provide direct access to the tenants’ property. In response thereto, the tenants filed suit, seeking to enjoin construction. They argue that the lease has been violated and that their apparent servitude (Harbor Road) has been unconstitutionally taken and expropriated without a hearing and without just compensation. They further argue that the Dock Board acted arbitrarily, unreasonably and capriciously.

On appeal, defendants argue that the suit to enjoin construction is moot because the construction is completed. While we agree that the injunction suit is indeed moot, we find, that a live controversy exists. In instances such as this, where no adequate remedy exists at law at this time, the courts of Louisiana are directed to Article 21 and equitable remedies. See: Porterfield v. Spurgeon, 379 So.2d 56 (La.App. 3rd Cir. 1980); Morehead v. Smith, 225 So.2d 729 (La.App. 2nd Cir. 1969); West v. Town of Winnsboro, 252 La. 605, 211 So.2d 665 (1968); Chaney v. Travelers Insurance Co., 238 So.2d 847 (La.App. 1st Cir. 1970).

Plaintiffs argue that under C.C. art. 21 their case should be remanded to the trial court:

“While it may not be practical for this Court to order that the Bridge work be enjoined since such order may be ‘moot,’ it may and should however order that the case be remanded for defendants to go forward with their burden to show why the following equitable result should not be maintained:
“It is respectfully submitted that this Honorable Court should maintain the servitude of passage granted by covenant and by operation of law from the Dock Board to Plaintiffs-Appellants on Harbor Road. Traffic should continue to move on Harbor Road and Harbor Road should continue to be used in the same manner by Plaintiffs-Appellants as was originally contemplated and as was provided in Lease documents and as historically was effected prior to Project No. 714-22-91, which is the subject of litigation.
“The Court may further order that in the event of threat of hurricane, the Bridge, its approaches and ways leading thereto are to be used for the purposes of hurricane evacuation.”

(Plaintiffs-appellants’ Supplemental Brief, p. 4)

Although the injunction question is moot, plaintiffs claim the character of the road has been changed to their detriment contrary to the original agreement. The completion of the road has only mooted the injunction issue. Whether the character of the roadway has been changed, whether accomodation can be made for the new roadway to allow access and egress as originally intended or whether plaintiffs are entitled to damages, are questions which remain open and viable. Accordingly, we remand this case to the trial court for consideration of the above stated questions.

With regard to the injunction issue, the disposition of the trial court is affirmed on grounds of mootness and the case is remanded for further proceedings not inconsistent with this opinion.

AFFIRMED IN PART AND REMANDED IN PART.

      . C.C. art. 21 reads as follows: “In all civil matters, where there is no express law, the judge is bound to proceed and decide according to equity. To decide equitably, an appeal is to be made to natural law and reason, or received usages, where positive law is silent.”


author: REDMANN, Judge. KLEES, Judge,

text:
    Wayne GALJOUR v. NEW ORLEANS PUBLIC SERVICE, INC. et al.
    No. 12361.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 7, 1982.

      James Maher, III, New Orleans Public Service, Inc., New Orleans, for defendants-appellants.
    Before REDMANN, SCHOTT, BARRY, KLEES and LOBRANO, JJ.
   REDMANN, Judge.

Defendant appeals from a judgment awarding $750 damages to a driver whose automobile was struck by defendant transit company’s streetcar. Defendant argues and plaintiff concedes that the trial judge orally reasoned that the testimony of two independent witnesses was unbelievable because, seated on the ¡eft side of the streetcar, they could not have seen plaintiff’s automobile pass the streetcar on its right side and make a left turn (despite a no left turn sign) into its path, as those witnesses testified. We reverse that ruling and, on our independent evaluation of the testimony, reverse the judgment appealed from.

The streetcar was not packed solidly with standing passengers, through whom, of course, the seated witnesses could not have seen. The only evidence is that the seats were full and there “may have been one or two people standing up.” The trial judge’s view is suggested by this interchange with one of the witnesses:

Q. Didn’t you say you were sitting on the left side of the streetcar as it was headed in an uptown direction. A. Yes, sir. Q. And you looked through the people in the seats and through the window? A. Yes. Q. And you watched the car, and then the car got further in front of you? A. Yes. Q. And you watched the car, and watched this car as it went from window to the next window and then to the door and then you watched it in each one of those places? A. Yes. Q. Did you watch it in each of those places as it went up? A. Not in each window, but I would watch that automobile. Q. You watched the automobile? A. Yes, I was watching it.

The record does not contain ány evidence supporting a conclusion that passengers seated on one side of a streetcar form so solid a mass that one seated on the other side could not see between them. The trial judge may not take judicial notice of such a fact because it is not a matter of common experience. Our experience is that New Orleans streetcar seats (save the last seat at front and rear) face the front (or rear) of the streetcar, and are sufficiently far apart to enable one seated on the opposite side to see between the seats, even when they are occupied, and through the large windows that constitute almost the entire side of the streetcar, beginning not far above the waist of a seated adult passenger. We agree that the trial judge might take judicial notice that one seated on the left side could surely not see events to the right of the streetcar as well as one seated on the right side, because the field of vision is of course obstructed by the passengers seated on the right. Nevertheless there is such intermittent vision between those passengers that we simply could not, in our minds, conclude that one seated on the left could not see an automobile pass on the right and make a left turn into the path of the streetcar. We acknowledge the trial court’s primacy, for which we cannot substitute, in fact finding and credibility evaluation, Canter v. Koehr-ing Co., 283 So.2d 716 (La.1973), but we believe it was a legal error to reject as physically impossible the testimony of the witnesses that they did indeed see through the windows.

There is no other basis in the record for rejecting the testimony of the two disinterested witnesses, a retired merchant seaman and a graduate civil engineer (whose work is “traffic safety expert and . .. traffic engineer”). Their testimony is wholly disinterested, internally consistent, and most positive. It would establish that plaintiff was at fault.

Plaintiff’s testimony is that he did not make a left turn but had traveled straight across the intersection and had stopped in its median as the light turned yellow (and then red), when the streetcar rolled into his car. That testimony would support a judgment in his favor, but we cannot accept it as outweighing the independent witnesses’ testimony. Plaintiff has the burden of proving his case by a preponderance of the credible evidence, and we rule that he has not carried that burden.

Reversed; dismissed at plaintiff’s cost.

KLEES and LOBRANO, JJ., dissent.

KLEES, Judge,

with whom LOBRANO, Judge, joins, dissenting.

It is just as probable that plaintiff’s version of the accident-that he left a passenger out of his automobile approximately one-half block from St. Charles Avenue, proceeded in a direct line to St. Charles Avenue, as this was his route to the Mississippi River Bridge on-ramp stopped in the median because of a caution light and was struck by the defendant’s streetcar — was as credible as defendant’s street car operator as well as the two passengers, who were seated on the left side of a filled streetcar with “one or two people standing up”. As the testimony of the physical evidence of the facts it is a credibility call we cannot reverse. Canter v. Koehring Co., 283 So.2d 716 (La.1973).

For the above reasons, I respectfully dissent.

      . That testimony is argued to be supported by a person to whom plaintiff had given a ride to a point from which, had plaintiff gone no place else afterwards, plaintiff would have been traveling straight across the intersection. But that rider’s testimony does not contradict that of the other two independent witnesses, because there is evidence that several minutes could have intervened between that rider’s being dropped off and the accident.


author: GULOTTA, Judge.

text:
    Dale BARNETT v. NEW ORLEANS POLICE DEPARTMENT.
    No. 12418.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 7, 1982.
    Bach & Wasserman, Gerald Wasserman, New Orleans, for plaintiff-appellee.
    Charles J. Willoughby, Asst. City Atty., New Orleans, for defendant-appellant.
    Before GULOTTA, CIACCIO and LO-BRANO, JJ.
   GULOTTA, Judge.

The New Orleans Police Department appeals from the Civil Service Commission’s action reducing the termination of Dale L. Barnett from the N.O.P.D. to a 120-day suspension. We affirm.

Barnett’s dismissal from his employment resulted from an incident on March 12,1980 when a Slidell bank’s glass door and teller machine were damaged by gunfire. The Superintendent of Police concluded that Barnett had been untruthful during a police investigation of the incident, had been “drinking”, and, on apprehension by Slidell police after an automobile chase, had thrown the weapon “into the weeds” to avoid suspicion of involvement in the incident.

The factual background concerning the incident and the subsequent disciplinary action are accurately set forth in the Commission’s well-written reasons accompanying its decision to set aside the order of dismissal and to impose a 120-day suspension. Those reasons are as follows:

“The incident which led to the Appellant’s being disciplined can only be described as bizarre. The Appointing Authority has reached certain conclusions regarding the scenario based on circumstantial evidence. The Appellant tells a different story which on its own seems like a figment of his imagination, but which he supports by evidence provided by two others who testified on his behalf. According to Officer Barnett, who resides in Slidell, on the morning of March 12, 1980 at about 3:12 a. m., he attempted to use an automatic teller machine at the First National Bank in Slidell. It rejected his card after he made several mistakes in dialing his ID Number. A recent acquaintance of Appellant’s who was intoxicated took the Appellant’s weapon which was between the front seats of Appellant’s car and began to blaze away at the machine and the bank causing approximately $1,600 damage.
Appellant struggled with this person, “Mike,” and wrestled the gun away, knocked him down, scooped up the spent cartridges and sped away. He was spotted by a Slidell police officer in the vicinity of the Bank and the officer gave pursuit having heard the shots and seeing no one else in the vicinity from which those shots were believed to have emanated except Appellant’s vehicle. After a short chase, of which appellant says he was unaware testifying he was only in a hurry to get to his home a short distance away, Appellant ran into a ditch. He then discovered someone was behind him and upon being told to get his hands up he dropped his weapon in the ditch. He told Sgt. Wyatt Williams of the Sli-dell police force whom he knew well that he didn’t hear any gunshots and did not have a gun. He did not advise Sgt. Williams of the incident but only that he was headed home. Unaware of the previous activity, as well as the gun in the ditch, Sgt. Williams allowed the Appellant to continue on his journey.
The Department of Police dismissed the existence of Mike and concluded that the Appellant fired the shots. At the time that the Department reached its conclusions, it must be noted that evidence to support the Appellant’s story was not made available.
Subsequent to the Department’s investigation, the officer did some very artistic police work upon getting a break or lead from an off-hand meeting with one Dennis G. Sweeney, who testified in Appellant’s behalf. The Appellant’s other witness, Mrs. Bonnie Falcon, verified the identification (indeed existence) of “Mike” who really was Mike Roberson, Mr. Sweeney’s former supervisor at Yellow Freight Line. The testimony of both of Appellant’s witnesses was very creditable and worthy of belief. There was simply no reason for their coming forward other than to tell the truth. Based on their testimony it may be found as a fact that the Appellant was' in the company of one Mike Roberson in the early morning hours of March 12, 1980, and that Roberson fired the weapon (with Appellant in the cross-fire) at the bank and thereby causing the damage.
On the other hand, Appellant was derelict in his duty as far as his encounter with Sgt. Williams is concerned. His conduct was inexcusable. As it is clear that the Department dismissed Officer Barnett on the belief that he had fired the shots into the Bank, the Commission hereby reduces that discipline to a 120-day suspension. Appellant therefore is reinstated with back pay, if any, and other emoluments of office due him.”

The testimony of Dennis G. Sweeney and Bonnie Lynn Falcon corroborated Barnett’s testimony and the “bizare” happenings as found by the Commission. Sweeney’s testimony gives credibility to Barnett’s story regarding the missing person, “Mike". According to Sweeney, Mike, a former coworker, called in sick on the morning of March 12, explaining that he had gotten into some trouble earlier. Sweeney stated that the following day Mike came to work with scratches on the side of his face and explained that he had been drinking and had fired some shots. Sweeney further testified that within three weeks to a month Mike sold his belongings, moved away, and had not been heard of since. This witness identified a photograph of an individual named Michael Roberson as the person referred to as “Mike”. Bonnie Lynn Falcon, a bar patron, identified the photograph of Roberson as that of the same individual who had left with plaintiff in plaintiff’s car shortly before the shooting incident.

Based on a conclusion that Barnett did not fire the weapon, the Commission found that there was insufficient cause for the termination. In such instances the Commission is vested with authority to reduce the penalty imposed by the appointing authority. See Arnold v. New Orleans Police Dept., 383 So.2d 810 (La.App. 4th Cir. 1980); Branighan v. Department of Police, 362 So.2d 1221 (La.App. 4th Cir. 1978).

We find no error in the Commission’s reduction of the penalty in this case. We, like the Commission, do not condone the conduct of Officer Barnett. Nevertheless, that conduct does not warrant dismissal in view of the factual findings of the Commission.

Accordingly, we affirm the judgment of the Civil Service Commission.

AFFIRMED.

      . In a Civil Service case such as this one, great weight must be given to the factual conclusions of the trier of fact. Arnold v. New Orleans Police Dept., supra; Herbert v. Dept. of Police, 362 So.2d 1190 (La.App. 4th Cir. 1978).


text:
    LIVESTOCK PRODUCERS ASSOCIATION v. Harvey COLOMB.
    No. 12530.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 7, 1982.
    Edward S. Bopp, A Law Corp., Arabi, for plaintiff-appellant.
    Jules J. Mumme, III, New Orleans, for defendant-appellee.

      Before GULOTTA, CIACCIO and LO-BRANO, JJ.
   GULOTTA, Judge.

Plaintiff appeals from the dismissal of its open account suit for the price of cattle allegedly sold and delivered to defendant. We affirm.

The arrangement was that defendant, a livestock dealer, purchased cattle from plaintiff indirectly through a “commission man” or “order buyer” employed to make purchases for him. The invoices bear the names of both the order buyer and Harvey Colomb, the actual purchaser. After the sale had been made, arrangements for delivery of the cattle were made by the purchaser.

Although several sales had been made between the parties without dispute, the invoice at issue in our case is for the sale of 14 head of cattle on September 26, 1978 in the amount of $3,608.63, The invoice indicates the sale was to “Mac-5 Harvey Co-lomb” and designates “Pete Adams” as the hauler.

According to Samuel Elfert, a Livestock Producers employee, “Mac-5” was an individual named Jesse Carland who bought the cattle for the defendant Colomb. Earlier invoices bearing the names “Mac-5” and “Colomb” were also introduced into evidence and Elfert stated that Colomb had paid them in full. Elfert had no receipt for delivery of the cattle signed by either Co-lomb or the trucker who hauled the animals after the sale. No individual known as “Mac-5” testified at trial.

Pete Adams, Jr., a trucker, testified that he had hauled the cattle to Slidell, but he did not know the exact destination or the owner. According to this witness, an individual named “Max Suarez” instructed him to bring the cattle to “Mr. Harvey’s place” in Slidell. Although Adams assumed that the place was Colomb’s and that Suarez worked for Colomb, he acknowledged that a meat packing company other than defendant’s place could have been the destination for delivery. Adams did state that he delivered these cattle to a Slidell packing company where he had delivered cattle for Co-lomb on seven or eight other occasions. However, Adams had no receipts to indicate who actually accepted or received the cattle.

Colomb stated that he neither ordered nor received the cattle and that “Mac-5” has never worked or bought cattle for him. According to Colomb, these cattle were delivered not to his barn but to the packing house of the Metro Meat Company in Slidell owned by Jesse Carland and employing Max Suarez. He did not ask Suarez to purchase cattle and did not speak to Adams concerning their delivery. As far as he knew, all cattle purchased by “Mac-5” were delivered to Metro Meat. Colomb had no records or cancelled checks concerning any commission paid to an order buyer in this case.

Well settled is the rule that a creditor suing on open account bears the burden of proving the defendant-debtor contracted for the sale on open account. In our case, plaintiff simply failed to carry this burden. Livestock Producers’ version that the cattle were sold and delivered to defendant through the order-buyer “Mac-5” was disputed by defendant. Moreover, in the absence of delivery receipts, the truck driver’s testimony adds little, if anything, to support plaintiff’s version. Confronted with this factual dispute, we cannot say the trial judge’s credibility determination in favor of defendant is clearly wrong.

Accordingly, the judgment is affirmed.

AFFIRMED.

      . Frank Brigsten, Inc, v. Alpha Builders, Inc., 351 So.2d 777 (La.App. 4th Cir. 1977); Ville Platte Concrete v. Western Cas. & Sun, 377 So.2d 532 (La.App. 3d Cir. 1979).


author: BOUTALL, Judge.

text:
    APEX PERSONNEL CONSULTANTS, INC. v. Gerald T. LABORDE.
    No. 12420.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 7, 1982.
    Philip A. Belancio, New Orleans, and A. S. Easterly, III, of Taylor, Porter, Brooks & Phillips, Baton Rouge, for Apex Personnel Consultants, Inc., plaintiff-appellant.
    Gerald Thomas Laborde, New Orleans, in pro. per.
    Before BOUTALL, CHEHARDY and KLIEBERT, JJ.
   BOUTALL, Judge.

The plaintiff appeals the grant of summary judgment to the defendant and the dismissal of its own motion for summary judgment. We reverse in part.

Apex Personnel Consultants, Inc., sued Gerald T. LaBorde for recovery of the fee due it as a private employment agency for successfully finding a secretary for defendant. Defendant conceded the fact of employment but contended that no fee can be demanded of him because it would constitute a violation of the Louisiana Right to Work Law. To this end, he filed a motion for summary judgment and plaintiff in turn filed a motion for summary judgment against him. The trial consisted of statements of counsel (Mr. LaBorde represented himself) and the testimony of plaintiff’s president. The court held that the Louisiana Right to Work Law was broad enough to cover the type of activities conducted by plaintiff and granted summary judgment in favor of the defendant dismissing plaintiff’s suit. Plaintiff’s motion for summary judgment was itself dismissed.

While we agree that there appears to be some overlapping between the activities covered by the Right to Work Law and the activities covered in the Private Employment Agency Law, the activities in this case come only under the Private Employment Agency Law.

The facts are that plaintiff is licensed under L.R.S. 23:101 et seq., under a Part of the Revised Statutes entitled Private Employment Agencies. That Part provides for a system of licensing and supervision of private employment agencies and sets out the activities permitted and prohibited to such agencies. The definition of an employment agency is set out in R.S. 23:102 which we quote in pertinent part:

“A. Except as hereinafter provided, any person who:
(1) contracts for the employment or placement of applicants, for employment; or
(2) directly or indirectly charges, solicits, collects or accepts, if tendered by the applicant seeking employment or by the employer giving employment any sum, fee or percentage of wages earned or to be earned, as a remuneration shall be deemed an employment agency.
* * * * * *
C. The provisions of this Act (Part) shall not apply to the operations of any lawful hiring hall system operated by a labor union, any lawful referral system operated by a labor union or to the operation of any labor organization, its officers, agents, employees and members.”

The question presented on this summary judgment is whether this plaintiff is in violation of the Right to Work Law which is set out in another Part of Title 23, R.S. 23:981 et seq. The purpose of that law is expressed in the policy declaration of Section 981 as follows:

“981. Declaration of public policy.
It is hereby declared to be the public policy of Louisiana that all persons shall have, and shall be protected in the exercise of the right, freely and without fear of penalty or reprisal, to form, join and assist labor organizations or to refrain from any such activities.”

There follows the definition of a labor organization to which the law applies and the sections which prohibit payment of fees. We quote:

“982. Labor organization.
The term ‘labor organization’ means any organization of any kind, or agency or employee representation committee, which exists for the purpose, in whole or in part, of dealing with employers concerning wages, rates of pay, hours of work or other conditions of employment.
983. Freedom of choice.
No person shall be required, as a condition of employment, to become or remain a member of any labor organization, or to pay any dues, fees, assessments, or other charges of any kind to a labor organization.
984. Certain agreements declared illegal.
Any agreement, understanding or practice, written or oral, implied or expressed, between any employer and any labor organization in violation of the provisions of this Part is hereby declared to be unlawful, null and void, and of no legal effect.”

Comparing the applicable law, it seems readily apparent that certain activities of labor organizations would fall within the activities encompassed in the Employment Agency Law, and in obvious recognition of this the legislature has exempted labor organizations from the provisions of the Employment Agency Law. Conversely, there is no statutory exemption of employment agencies from the Right to Work Law, and the question becomes whether the definition of labor organizations expressed in Section 982 covers the activities of this plaintiff.

The facts are that plaintiff is a licensed employment agency which was regulated by the Commission of Labor and the Louisiana Private Employment Agency Advisory Counsel under the provisions of R.S. 23:101 et seq. The defendant asked plaintiff and other employment agencies if one could provide a qualified secretary and plaintiff sent to the defendant an applicant who was hired. Although the plaintiff inquired as to the amount of wages, hours, etc., there was no attempt to discuss them with a view to change them or recommend any changes. Plaintiffs sole function was to simply ascertain information from the prospective employer and transmit this information to the prospective applicant or employee who then presented herself to the defendant for possible employment. We conclude that these activities are insufficient to bring plaintiff under the definition of labor organization as statutorily defined.

We say this for two reasons. The first is that plaintiff is not “dealing with employers” concerning the enumerated items. The statute itself does not offer a definition of the words “dealing with” and thus the words should be given their ordinary usage. We feel that the definition should be given as broad a scope as possible but note that ordinarily to deal with is considered as meaning to transact business with or to make arrangements or negotiate with, generally to attain a desired result by a combination of interested parties. We also note the definition of remarkably similar wording contained in the National Labor Relations Act, 29 U.S.C.A. Section 152(5), which may have served as a source of the definition in the Right to Work Act. The Supreme Court of the United States in the case of National Labor Relations Board v. Cabot Carbon Company, 360 U.S. 203, 79 S.Ct. 1015, 3 L.Ed.2d 1175 (1959) reversed the decision of the United States Court of Appeal Fifth Circuit (256 F.2d 281 (1958)), and held that the broad term “dealing with” should not be limited to and mean only “bargaining with” as held by the Court of Appeal, and that an organization that only discussed with and made recommendations and requests was included within the act. As noted, because of the policy declaration in the Right to Work Act, we feel we should give the definition its broadest scope. However the facts in this case are that there was no discussion and only a communication of information.

The second reason for our conclusion is that the matter comes before us simply on summary judgment, and appellant argues that there is a conflict between the two statutes which renders one statute inoperable. To rule on this issue would require more facts and information than is presented on this record. Our appellate courts have stated numerous times that summary judgment cannot be used as a substitute for trial on the merits. For the reasons above enumerated, we hold that the uncontested facts do not warrant summary judgment in favor of defendant, and we would reverse the trial court.

The other issue before us is the appeal of the dismissal of plaintiff’s motion for summary judgment. Code of Civil Procedure Article 968 provides that an appeal does not lie from the court’s refusal to render any judgment on a motion for summary judgment and we shall comply with that article. See Bourgeois v. Brown & Root, Inc., 303 So.2d 217 (La.App. 4th Cir. 1974); Bruno v. Hartford Accident and Indemnity Company, 337 So.2d 241 (La.App. 3rd Cir. 1976). Accordingly, we do not consider this aspect of the appeal.

For the reasons above assigned, the summary judgment rendered in favor of plaintiff is reversed and judgment is rendered in favor of plaintiff dismissing defendant’s motion for summary judgment. This matter is remanded to the trial court for such further proceedings as may be appropriate. Costs of this appeal are to be assessed by the trial court on its final disposition of the case.

REVERSED AND REMANDED.

      . The employment took place on September 6, .1979, and we consider that to be the controlling date of the effective statutory laws.


author: SCHOTT, Judge.

text:
    Desiree WALTON v. NEW ORLEANS PUBLIC SERVICE, INC.
    No. 12877.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 7, 1982.
    James Maher, III, New Orleans Public Service, Inc., New Orleans, for defendant-appellant.
    Lee W. Rand, New Orleans, for plaintiff-appellee.
    Before SCHOTT, KLEES and WARD, JJ.
   SCHOTT, Judge.

Plaintiff, Desiree Walton, brought this action to recover damages resulting from a fall from a bus owned by defendant, New Orleans Public Service, Inc. (NOPSI). The trial judge found that NOPSI was free from negligence and dismissed plaintiff's suit. However, he taxed all costs against NOPSI. NOPSI has appealed on the issue of costs and plaintiff has answered the appeal on the issue of NOPSI’s liability.

THE ISSUE OF LIABILITY

Plaintiff was a fare paying passenger when she slipped and fell while exiting from a bus. She contends that a defective door allowed water to accumulate on the bottom step, which in turn caused her fall. At the time of the accident the bus was stopped, and it was raining. Plaintiff’s account of what occurred is not clear. She testified that she slipped from the bottom step and fell out of the bus; she also testified that she did not know which step she fell from. She stated that she first saw water on the bottom step when she was getting off the bus; she also testified that she first saw the water after she fell. She “imagines” that the water caused her fall. Plaintiff was unclear about the alleged defective door as well. She stated that the rubber on the door was worn and torn; she later testified that no rubber was missing from the door but that it did not close completely.

A NOPSI claims investigator inspected the bus two days after the incident. She found that the door was not defective, the matting on the steps was in good shape and the hand railing was secure. The investigator explained that parts of the door overlap and that there was no opening between them. She also testified that there had never been a report of water leaking through the door onto the step. The bus driver did not see anything wrong with the door or see any accumulation of water.

NOPSI had the burden of proving that it was without the slightest degree of negligence once plaintiff established that she was injured while a fare paying passenger. Wise v. Prescott, 244 La. 157, 151 So.2d 356 (1963). The trial court found that NOPSI carried that burden and the record supports this conclusion. Both the bus driver and the claims investigator found nothing wrong with the bus. The doors were not defective; they closed normally and safely to keep the water out. The matting on the steps was in good shape also. There was no dangerous accumulation of water on the steps of the bus. NOPSI is not under a duty to keep the bus dry at all times. Ellizey v. NOPSI, 365 So.2d 10 (La.App. 4th Cir. 1978). The trial court correctly concluded that NOPSI was free of the slightest degree of negligence.

THE ISSUE OF COSTS

NOPSI contends that the trial judge erred in taxing it with the unsuccessful plaintiff’s costs and asks that each party pay its own costs. LSA C.C.P. Art. 1920 confers discretion on the trial court in the taxing of costs but requires that the exercise of such discretion be equitable. As in Bowman v. NOPSI, 410 So.2d 270 (La.App. 4th Cir. 1982) there are no equitable considerations here to justify the taxing of plaintiff’s costs against NOPSI and the trial court abused its discretion in doing so.

Accordingly, the judgment appealed from is affirmed but amended to require each party to bear its own costs.

AMENDED AND AFFIRMED.


text:
    Janet G. FURTADO v. ALTON OCHSNER MEDICAL FOUNDATION, Argonaut Insurance Companies, et al.
    No. 11938.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 7, 1982.
    Rehearing Denied May 19, 1982.

      George C. Stringer, Jr., Charles J. Ganu-cheau, Harahan, for plaintiff-appellant.
    Lemle, Kelleher, Kohlmeyer & Matthews, Paul B. Deal and Darryl J. Foster, New Orleans, for defendant-appellee, Dr. Merrill 0. Hines.
    Monroe & Lemann, Jonathan C. McCall and Neil Ann Armstrong, New Orleans, for defendant-appellee, Carol Franklin.
    Edward J. Rice, Jr., Philip 0. Bergeron, New Orleans, for defendants-appellees.
    Before GARRISON, CHEHARDY, and EDWARD J. STOULIG, JJ.
   GARRISON, Judge.

This is an appeal from a judgment of the district court, dismissing plaintiff’s suit on the finding of the trial court that the accident complained of did not occur. From that judgment, which we reverse, plaintiff appeals.

All parties agree to the following:

1.On the evening of June 29, 1973, plaintiff reported to work at the Obstetrics-Nursery Department of Ochsner for the 11:00 p. m. to 7:00 a. m. June 29, 30 shift.
2. On June 30 plaintiff reported to the Emergency Room of Ochsner and was given an injection of Dilaudid, a habit-forming semi-synthetic derivative of morphine.
3. Between June 30 and July 2, 1973, plaintiff saw three physicians.
4. On July 6, 1973, plaintiff was operated on for a ruptured vertebral disc in the 5th lumbar area by Dr. Echols.
6. In December of 1973, a dorsal stimulator was attached to plaintiff’s spinal cord by Dr. Connolly.
7. Plaintiff did not return to work after June 29, 1973.
8. In February, 1974, plaintiff was fired because she was no longer able to work.
9. Due to plaintiff’s loss of job, lack of financial means and inability to work, she suffered depression for which she was treated by Dr. Holtzman from March, 1974 through August, 1974.
10. She was readmitted to the hospital on July 25, 1976 and on April 2, 1977, and was given myelograms by Dr. Connolly.
11. As of the time of trial she was under treatment by Dr. Richardson.
12. Plaintiff was paid 60% of her salary for 13 weeks.
13. Plaintiff received all medical treatment at Oschner and, with the exception of Dr. Richardson, all medical personnel involved were Ochsner employees or contractors.

Mrs. Furtado stated that on the night in question she was called away from the OB ward and told to report to the fourth floor. While there she subdued a patient, Dominick C. Zicarello, aged 70, who was trying to get out of bed and pull out various tubes. In the course of subduing him, she injured her back. The Nursing Report for the night in question, introduced as P-6, shows that between 3 and 11 Mr. Zicarello was noted as “climbing out of bed.” ' Zicarello’s Patient Record (P-15) shows, on July 30 at 4:00 a. m.:

“Trying to climb out of bed. Extremely confused. Rise & faints right bedside. Hands shaky. Very nervous.”

Defendant argues that either an old 1970 injury had suddenly “flared up” again or something happened while plaintiff was off duty which caused the injury. No evidence of another possible accident was introduced and we note that plaintiff had been free of pain and symptoms of the 1970 accident for several years prior to the 1973 injury.

In the recent case of Faciane [DeBattista] v. Argonaut-Southwest Insurance Co., 403 So.2d 26 (La.1981), the Supreme Court reviewed the question of plaintiff’s burden of proof:

“In this civil case, the plaintiffs’ burden is to prove causation by a preponderance of the evidence. This burden may be met either by direct or, as in this case, by circumstantial evidence. Jordan v. Travelers Ins. Co., 257 La. 995, 245 So.2d 151 (1971); Naquin v. Marquette Cas. Co., 244 La. 569, 153 So.2d 395 (1963).
“Taken as a whole, circumstantial evidence must exclude other reasonable hypotheses with a fair amount of certainty. This does not mean, however, that it must negate all other possible causes. Otherwise, the mere identification by the record of another possibility, although not shown .to be causally active, would break the chain of causation. Weber v. Fidelity & Cas. Ins. Co. of N. Y., 259 La. 599, 608-09, 250 So.2d 754, 757 (1971).” (pages 28-29)

The evidence shows that Janet Fur-tado received medical treatment within the same 12-hour period in which she alleged the accident occurred. Ochsner’s own reports bear out Mr. Zicarello’s condition, and Furtado has undergone several extremely painful surgical procedures consistent with the accident and injury alleged. The defendants, however, have failed to produce any evidence, as distinguished from insinuation, which convinces us that the accident alleged was not the most certain source of Janet Furtado’s injury. We find that plaintiff has shown by a preponderance of the evidence that the injury occurred as herein-above described.

Having concluded that the accident which was the cause of plaintiff’s injury did in fact occur, we turn now to the causes of action against Ochsner and Argonaut for workmen’s compensation seeking $65.00 per week, plus medical expenses and costs. Plaintiff additionally sued Ochsner and its insurer for $750,000.00 in tort. Plaintiff further alleged that she is entitled to penalties and attorney’s fees for defendants’ arbitrary, unreasonable and capricious refusal to pay workmen’s compensation benefits.

Plaintiff’s original petition was filed on June 28, 1974, or one day before prescription. On June 19, 1975, plaintiff amended her petition, deleting the tort claim against Ochsner, the employer, and attempted to bring a tort action against several executive officers.

In response thereto, counsel for Ochsner Foundation filed an exception alleging that plaintiff’s tort action had prescribed. We agree. R.S. 23:1032, as in effect at the time, provided that workmen’s compensation was the exclusive remedy against the employer. Ochsner could not be a party in the tort action; therefore, filing of the workmen’s compensation suit against Ochsner could not act to interrupt prescription in the executive officer tort suit. Accordingly, the tort action was not filed until June 19, 1975, or after the case had already prescribed. Counsel for Ochsner argued that the case had prescribed because of plaintiff’s use of fictitious names for the executive officers listed in the amended petition. We do not address the “fictitious name” argument because, even if plaintiff had correctly stated the identities of the executive officers, the case still would have already prescribed. Accordingly, we conclude that the tort action had prescribed and the executive officer’s action should be dismissed.

We now address the workmen’s compensation suit presently before us. Gonzales v. Xerox Corp., 320 So.2d 163 (La., 1975). As previously held above, plaintiff suffered an injury as a result of an accident occurring within the scope of her employment, and that accident was the cause of the injuries at issue, such that workmen’s compensation benefits apply.

The next issue to be addressed is whether plaintiff is partially or totally and temporarily or permanently injured. Dr. Connolly, an Ochsner physician who treated Janet Furtado for five years, testified that plaintiff’s nerve root compression and scars are permanent, and that she has both an anatomical and a functional disability. He further testified that he doubts that she could return to her employment as a nurse’s aide, although she might be able to do some light work.

The test to be applied in the instant case, known as the “odd-lot” doctrine, is whether plaintiff can compete with ablebodied nurses’ aides. Grimes v. Red Ball Motor Freight, Inc., 321 So.2d 885 (La.App. 1st Cir., 1975), writ denied 325 So.2d 278. We find, as did Dr. Connolly, that plaintiff cannot compete with ablebodied nurses’ aides. Accordingly, we find that plaintiff is entitled to sixty-six and two-thirds percent of her wages for the period of disability, subject to a credit for amounts paid by the employer, plus medical expenses.

Plaintiff contends that she is entitled to attorney’s fees and penalties under R.S. 1201.2 because of the employer’s unreasonable and arbitrary refusal to pay workmen’s compensation benefits. We do not agree. “If the asserted defenses are without a sound basis in fact or in law, penalties and attorney’s fees shall be assessed.” Campbell v. Baker, Culpepper & Brunson, 382 So.2d 1046, 1049 (La.App. 2nd Cir., 1980), writ denied 385 So.2d 793. In the instant appeal, we find that defendants presented a number of valid legal defenses. Accordingly, no arbitrary or capricious refusal has occurred.

For the reasons discussed, we reverse the judgment of the district court and render judgment as follows:

IT IS ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of the plaintiff, Janet G. Furtado, and against the defendants, Alton Ochsner Medical Foundation and Argonaut Insurance Company, granting to plaintiff workmen’s compensation benefits in the amount of SIXTY-FIVE AND NO/100 ($65.00) DOLLARS per week for the period of 500 weeks, subject to a credit for amounts paid by the employer, plus medical expenses and legal interest from the date of judicial demand until paid.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that plaintiff’s suit against defendants Carol Franklin and Dr. Merrill O. Hines be and hereby is dismissed with prejudice at plaintiff’s cost.

REVERSED AND RENDERED.

STOULIG, Judge, concurring.

I concur in the result.


text:
    Barbara Dugas, Wife of/and Harry DUGAS v. Irma JIMINEZ, Richard Wise and Commercial Union Insurance Company.
    No. 12830.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 7, 1982.
    Writ Denied May 28, 1982.

      Gerald J. Leydeeker, New Orleans, for plaintiffs-appellees.
    Lobman & Carnahan, Edward P. Lob-man, Metairie, for defendants-appellants.
    Before REDMANN, GARRISON and BYRNES, JJ.
   GARRISON, Judge.

This is an appeal from a judgment of the district court, granting to plaintiff damages in the amount of $210,000.00 and to her husband damages in the amount of $18,-768.38. From that judgment, which we affirm, defendant appeals, arguing that the trial judge abused his discretion by awarding an excessively high verdict.

Liability was admitted at trial. Accordingly, the only issue before the trial court was the question of quantum. The trial judge, in his written reasons for judgment, itemized the damages awarded as follows:

On appeal, defendant argues that the quantum awarded is excessive, as the only injuries suffered by plaintiff were a broken femur and a torn meniscus (cartilage). We do not agree. The trial judge painstakingly explained his award in 19 pages of reasons for judgment. He specifically stated that he was awarding damages based on the following factors:

1. Plaintiff was pinned between the car that struck her and a box into which parking fees are placed.
2. A Steinman pin was drilled through her right knee in order that she could be placed in traction.
3. She was in traction for three weeks, but this treatment failed and she was forced to undergo an operation during which an 18 inch intramedul-lary nail was inserted in the right knee.
4. The first hospitalization period was ■ almost one month.
5. After discharge, she required bed rest and crutches.
6. She complained of soreness in the right knee, right forehead, and headaches and was referred to an optometrist. The optometrist concluded that she had no eye problems.
7. At the time of trial, she was still under the care of the orthopedist.
8. She was involved in a second auto-' mobile accident, but this accident did not give rise to additional injuries.
9. In August, 1978, the orthopedist found that the nail inserted in the hip area was coming out.
10. In September, 1978, plaintiff began experiencing back pain for which she was readmitted. Surgery was performed to remove the nail.
11. This hospitalization lasted for one week.
12. The operation produced several ugly scars on the thigh, hip and buttock areas.
13. A plastic surgeon testified that there will be only 20% improvement if she undergoes an operation to remove the scars.
14. She became pregnant. During the course of her pregnancy, she experienced pain in her back and swelling of the right knee.
15. She was readmitted for testing in January, 1980.
16. At this time, she underwent an arth-rogram of the right knee which indicated positive cartilage damage.
17. She was diagnosed as having arthritis of the knee.
18. She was further diagnosed as having calcific bursitis of the hip, which was caused by the nail.
19. This third hospitalization lasted a week.
20. She continued to experience' back pain and underwent an eleetromye-logram in March, 1980.
21. The test was essentially within normal limits except that she suffered delayed right reflexes and a decrease in the right ankle, bo'th indicating a nerve root injury.
22. She was readmitted to the hospital in August, 1980, for an arthroscopy and myelogram.
23. The myelogram was within normal limits but the arthroscopy was positive, indicating torn cartilage.
24. An operation was performed on the right knee. This period of hospitalization was 12 days.
25. She was given a 15 to 20% disability rating of the lower right extremity.
26. She would suffer pain when weather conditions changed.
27. She retains fluid in the right knee, tenderness in the joint.
28. She limps and one leg is longer than the other.
29. She should avoid any strenuous work.
30. No lost wages were awarded because she was not working at the time of the accident and had recently been married.
31. She was twenty-one years old at the time of the accident and has over fifty years of pain as her future.
32. The accident created a change in the lifestyle of a young woman who enjoyed jogging, tennis, and horseback riding.
33. The pain and suffering inherent in the numerous tests and operations, as well as the pain involved in her daily existence.
34. The effects of the accident on her recently contracted marriage and lifestyle in conjunction therewith.

In light of the testimony and evidence presented, we cannot conclude that the trial judge clearly abused his discretion in the amount of damages awarded.

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

AFFIRMED.