author: LOTTINGER, Judge.

text:
    Nick J. GUZZARDO v. Gibbs ADAMS, et al.
    No. 14562.
    Court of Appeal of Louisiana, First Circuit.
    March 2, 1982.
    Rehearing Denied April 13, 1982.

      Roy Maughan, Baton Rouge, for plaintiff-appellant Nick J. Guzzardo.
    W. Luther Wilson, Baton Rouge, for defendant-appellee Gibbs Adams and Capital City Press.
    Before ELLIS, LOTTINGER and PONDER, JJ.
   LOTTINGER, Judge.

This is an action ex delicto by plaintiff, Nick J. Guzzardo, against Gibbs Adams and Capital City Press, Inc. for invasion of privacy. From a directed verdict in favor of defendants, plaintiff has appealed.

FACTS

On January 2, 1979, plaintiff, Nick J. Guzzardo, was named personnel coordinator in the office of the clerk of court for East Baton Rouge Parish. This was a new position. His responsibilities were to screen prospective employees, to coordinate the personnel records of the clerk’s office, and to start programs for upgrading training and education of employees.

Plaintiff complains that defendant, Gibbs Adams, interviewed him shortly after his appointment, and subsequently thereto several articles written by Adams appeared in newspapers owned and operated by defendant Capital City Press, Inc. These articles report business activities of plaintiff prior to his employment by the East Baton Rouge clerk of court, as well as business activities while employed by the clerk of court but apparently resulting from previous business engagements.

TRIAL JUDGE

After evidence had been presented by both sides and prior to submission of the case to the jury, defendants moved for a directed verdict. La.C.C.P. art. 1810. The trial judge in oral reasons concluded that the decision as to whether plaintiff was a public official rested alone with the court rather than the jury, and found plaintiff to be a public official. Secondly, the trial judge concluded that all facts reported in the newspaper articles came from public records, and that plaintiff had consented to their publication by his interview with defendant Gibbs Adams.

SPECIFICATION OF ERROR

Plaintiff-appellant contends the trial court erred in directing a verdict for the defendants when there were questions of fact regarding substantial issues.

I

The basis of plaintiff-appellant’s argument that “questions of fact regarding substantial issues” remain is that a jury may find the plaintiff was not a public official. In essence plaintiff argues that the question of whether plaintiff is a public official or not belongs to the jury. Rosenblatt v. Baer, 383 U.S. 75, 86 S.Ct. 669, 677, 15 L.Ed.2d 597 (1966) held that “generally it is for the trial judge in the first instance to determine whether the proofs show [plaintiff] to be a ‘public official.’ ” Therefore, the trial judge was correct in deciding that issue rather than sending same to the jury.

In determining that plaintiff was a public official, the trial judge made the following finding of facts:

“Mr. Guzzardo was hired as Personnel Coordinator for the East Baton Rouge Parish Clerk of Court’s Office at a salary of fifteen hundred dollars a month. He reported directly to the Clerk of Court or the Chief Deputy Clerk of Court. He indicated that as far as his salary range was concerned, he was on the third tier which put him fairly equivalent to thirty other supervisors in the Clerk’s Office. He made recommendations for disciplining but was not the ultimate authority in that respect. He instituted a class for empolyees [sic], and part of the setup required employees to pay out of their pocket certain funds. When the controversy about his employer’s trip became so widespread in the newspapers, he thrust himself into the fray by becoming the spokesperson for the office and actually reported to the press what was going on. Now those facts are not disputed, and nobody is saying that is not true. Everybody is in agreement that those facts are true.”

From the facts found by the trial judge we are convinced he was correct in his determination that plaintiff is a public official.

II

Plaintiff does not complain that the facts as presented in the news articles were false. If plaintiff is contending defendants were malicious in the publication it is of no moment, because “even a publication which intentionally inflicts harm on a public official is not actionable unless false.” Shaefer v. Lynch, La., 401 So.2d 1193.

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

AFFIRMED.


source: Caselaw Access Project

author: PONDER, Judge.

license: Public Domain

text:
    Karl J. PIZZALOTTO, M.D., Ltd. v. Dietrich WILSON.
    No. 14581.
    Court of Appeal of Louisiana, First Circuit.
    March 2, 1982.
    Rehearing Denied April 13, 1982.

      W. Luther Wilson, Baton Rouge, for plaintiff-appellee Karl J. Pizzalotto, M.D., Ltd.
    Roy Maughan, Baton Rouge, for defendant-appellant Dietrich Wilson.
    Before ELLIS, LOTTINGER and PONDER, JJ.
   PONDER, Judge.

Plaintiff, Dr. Karl Pizzolatto, filed suit on open account to collect for surgery he performed on the defendant, who reconvened with a malpractice action. Defendant appeals from an adverse judgment based upon jury verdict in the malpractice suit and the trial judge’s decision that defendant owed the fee.

The issues are the jury instructions, the doctor’s negligence in diagnosing the problem and performing the surgery and the lack of informed consent.

We affirm.

Ms. Wilson is a single woman in her late twenties with no children. She first went to see Dr. Pizzolatto due to severe cramping during her menstrual period. During the first visits, the doctor considered Ms. Wilson’s problem to be pelvic inflammatory disease, endometriosis or cysts in the ovary or tube area. He prescribed antibiotics for pelvic inflammatory disease. On a later visit he recommended a diagnostic laparos-copy and D and C.

The laparoscopy showed multiple adhe-sions within the abdominal cavity; however the examination of the reproductive organs was impaired because the adhesions had bound the tubes and ovaries to the uterus. The doctor’s discharge note diagnosed Ms. Wilson’s problem as pelvic pain, pelvic inflammatory disease, and endometriosis.

Two weeks later, when Dr. Pizzolatto recommended a laparotomy, he did not discuss any alternative method of treatment or the risk of sterility. She did obtain a written explanation stating:

“Dx (1) Pelvic inflammatory disease, marked
(2) Endometriosis
Rec (1) Laparotomy — Lysis of adhesions, Fulguration of endometrioma”

Prior to her surgery, Ms. Wilson in writing consented to a laparotomy. The consent form contained the standard provisions that sterility might result from the surgery and that the consent extended to the performance of operations different from those contemplated where the doctor found it necessary.

Dr. Pizzolatto wrote on the hospital admission chart the same procedure that he had explained to Ms. Wilson but added “probable salpingo-oophorectomy,” although the latter had not been discussed with Ms. Wilson.

When the doctor entered the abdominal cavity, he found extensive endometrial ad-hesions much worse than he had anticipated, so extensive as to render Ms. Wilson sterile. He felt that the failure to remove the reproductive organs would result in pain and infection necessitating more surgery prior to the patient’s leaving the hospital. After the assisting surgeon concurred in this finding, Dr. Pizzolatto proceeded to perform a total hysterectomy and bilateral salpingo-oophorectomy.

Ms. Wilson became very upset when she learned that a total hysterectomy had been performed. Her recovery from the surgery was otherwise uneventful.

Appellant’s contention that the jury’s verdict was contrary to the law and the evidence is based upon a jury instruction that it is not malpractice to make a mistake in diagnosis, an instruction that a physician is presumed to have done his duty; a refusal to give a jury instruction that a consent to surgery is invalid if obtained by false representation; and the conclusions that she has proved (a) appellee’s negligence in failing to diagnose her endometrosis and to treat it with drugs and conservative surgery; (b) he performed the salpingo-oopho-rectomy without her consent, either express or implied, (c) he did not reveal to her the possibility of the removal of the reproductive organs and (d) there was no immediate danger to her life and health to justify the removal without her express consent.

Ms. Wilson contends that the trial court erred in instructing the jury that it is not malpractice to make a mistake in diagnosis. One isolated sentence might have been subject to the interpretation placed on it by plaintiff. However, the instruction as a whole makes it clear that the physician’s conduct in making a diagnosis must be compared to the degree of skill employed by other members of the same speciality. find no error. We

Defendant objected to the instruction that the law accords the medical practitioner the presumption that he has done his duty in the absence of evidence to the contrary. Ms. Wilson has the burden of proving that Dr. Pizzolatto deviated from the standard of care required by his speciality. That portion of the instruction, when read with the rest of the instruction, is not in error. Bryant v. St. Paul Fire and Marine Ins. Co., 382 So.2d 234 (3rd Cir. 1980).

Ms. Wilson complains of the failure to instruct that “consent is invalid if obtained by representations which are false to the knowledge of the surgeon.” Although this instruction has been approved by the jurisprudence, we find that the trial judge did not err by omitting the instruction. The only misrepresentation charged is a failure to disclose. The instructions properly and adequately instructed the jury on the doctor’s duty to disclose all known information material to the patient’s decision.

Appellant’s other complaints as to the verdict being contrary to the law and the evidence because of what she contends she has proved are attacks upon the conclusions reached by the jury as to the credibility of the witnesses and the weight of the evidence.

Without a recounting of all the evidence and the instructions given the jury, suffice it to say that we have closely examined both and find that the conclusions are based upon evidence, some conflicting, and that the instructions given to the jury are correct and adequate.

Appellant complains also that she was cast in judgment for Dr. Pizzolatto’s fee for the surgery performed without her consent. Both the judge and the jury found on conflicting evidence that there was consent either express or implied. We find no error.

For these reasons the judgment is affirmed at appellant’s costs.

AFFIRMED.

      . A condition in which tissue resembling the uterine mucous membrane occurs aberrantly in the pelvic cavity.

      . An examination by instrument inserted into body cavity.

      . Dilation and curettement, dilation of cervix of uterus and removal of growth or other material from the wall of the uterus.

      . A surgical incision, usually in the abdomen.

      . The surgical removal of a uterine tube and ovary.

      . “One of the duties of the physician is to make a diagnosis of the ailment of his patient, and if a physician fails to use a degree of skill ordinarily employed under similar circumstances by members of his profession in the same medical specialty in making that diagnosis, then you may conclude that he was negligent in his conduct. But a physician is not obligated in making a diagnosis to be correct all the time. It is not malpractice to make a mistake in diagnosis. Making a diagnosis is an act of professional judgment, and an incorrect diagnosis is not necessarily an act of negligence. You must consider a physician’s conduct in making a diagnosis in comparison to the degree of skill in diagnoses ordinarily employed by other members of the profession in the same medical specialty.”

      . Beck v. Lovell, 361 So.2d 245 (1st Cir. 1978), writ denied 362 So.2d 802 (La.1978).


author: COLE, Judge.

text:
    Clell M. RICHARDS, et al. v. Magee MARTIN, et al.
    No. 14585.
    Court of Appeal of Louisiana, First Circuit.
    March 2, 1982.
    Writ Denied April 21, 1982.

      Neil Mixon, Baton Rouge, and Richard Reina, Denham Springs, for plaintiff Clell Richards.
    John Burgess, Livingston, for defendant Odom Graves.
    Robert Morrison, Denham Springs, for defendant Magee Martin.
    Before COVINGTON, COLE and WATKINS, JJ.
   COLE, Judge.

The issue presented here is whether or not the tax sale of plaintiff’s property should be annulled due to insufficiency of notice. Because we find plaintiff-appellant did not receive the required notice, we reverse the judgment of the trial court and hold the sale annulled. The following facts were stipulated to by the parties.

Appellants Clell M. Richards and Judy Simmons Richards are the owners of three tracts of land located in Livingston Parish. They acquired this property on January 20, 1973, as reflected in the conveyance records of Livingston Parish. An act of mortgage, in favor of Campus Federal Credit Union, was also duly recorded in that parish. Appellants took possession immediately and continue to reside on the property to this day.

Some time prior to May 22, 1979, the sheriff of Livingston Parish sent a notice of tax delinquency by certified mail to the appellants at the mailing address shown on the deed by which they acquired the property. The letter was returned to the sheriff’s office with the notation that the letter was not delivered because the Richards had moved and the letter was “not forwarda-ble.” The appellants never received the delinquency notice. Notice of the tax sale was published in the Denham Springs News on April 17,1975, and on May 19, 1975, prior to the actual sale. The defendant-appellee, Magee Martin, purchased the property at a tax sale on May 22, 1979.

Appellants filed this suit to have the sale annulled, naming Magee Martin and the sheriff of Livingston Parish as defendants. Martin answered, denying all allegations and filed a reconventional demand against appellant, seeking to have the tax deed confirmed and quieted under La.R.S. 47:2228. Rather than having a trial the parties simply submitted the stipulated facts and argued in briefs. Judgment was rendered dismissing plaintiff’s claim against Martin and the sheriff and granting Martin’s reconventional demand to have his title quieted. Plaintiff then filed this appeal, arguing he did not receive the notice required by La.R.S. 47:2180 B.

We have reviewed the record and conclude the stipulated facts demonstrate clearly appellants did not receive proper notice. The facts stated the certified letter was returned to the sheriff who then advertised in the newspaper. There is no evidence showing he made any effort to obtain the correct address of the appellant property owners, nor is there any evidence of the proces verbal required by the statute.

This court has stated unequivocally in recent years that when a sheriff does not take measures to locate the property owner the tax sale may be annulled. In Sheridan v. Commercial Guaranty & Brokerage Corp., 292 So.2d 317 (La.App. 1st Cir. 1974), the sheriff sent the tax notice to the wrong address and the notice was returned with the notation “moved, left no address.” The sheriff took no further steps to locate the tax debtor and proceeded with the sale. The court stated as follows:

“It is well established that LSA-R.S. 47:2180, and its statutory predecessors, require that notice of delinquency be given a taxpayer before his property may be sold for nonpayment of taxes. It is also well settled that where mailing of such notice is required, and a mailed notice is returned to the tax collector undelivered or unclaimed, it is incumbent upon the tax collector to take additional reasonable steps to notify the taxpayer, and failure of the tax collector to perform this obligation renders a tax sale null and void.” (Citations omitted.)

In Childress v. Johnson, 387 So.2d 1217 (La.App. 1st Cir. 1980), the certified letter addressed to “Johnson, Obie & Shirley, Kentwood, LA. 70444,” was delivered to the post office and returned by the post office as “unclaimed.” No effort was made to locate the tax debtors and the property was sold. The court cited Sheridan, supra, and held the sale was annulled for lack of sufficient notice. The court noted the post office had not notified the debtors the letter had arrived for them and that if the tax collector had visited the property he would have found the debtors to be residing there. The same is true in the present case for the debtors had resided at the adjudicated property since the purchase in 1973. It was incumbent upon the sheriff to make some attempt to notify them of the delinquency.

Most recently, in Bryant v. T. C. B. Enterprises, 395 So.2d 823 (La.App. 1st Cir. 1981), this court again annulled a tax sale due to insufficient notice. In this case the tax notice was sent to an out of state address and returned as “not deliverable as addressed” and “no forwarding order on file.” Evidence at trial showed the general practice was to mail the notice to the first owner listed on the assessment rolls, even though other owners (heirs) were also listed. When the notice was returned “undeliverable” to the sheriff’s office the only other step usually taken was to check with the assessor’s office to see if a new owner was listed. If no such owner was listed, the property was put up for sale. The court concluded the notice was insufficient under La.R.S. 47:2180 and ordered the sale annulled. We find the same reasoning to be applicable here.

For the foregoing reasons we reverse the judgment of the trial court and decree the tax sale of the property described herein, recorded in COB 200, page 263 of the conveyance records of Livingston Parish, to be annulled. Costs are assessed against the sheriff of Livingston Parish, as prescribed by law.

REVERSED.

APPENDIX TO NUMBER 14,585

Three (3) certain tracts or parcels of land situated in the Parish of Livingston, State of Louisiana, being described herein as Tract No. 1, Tract No. 2 and Tract No. 3, as follows:

TRACT NUMBER 1:

All that certain tract or parcel of land lying and being situated in Section 27, Township 6 South, Range 3 East, Livingston Parish, Louisiana, more particularly described as follows, to-wit: From the Southwest corner of said Section 27, run East 785 feet to point of beginning; from said point of beginning run East 763 feet to margin of Lockhart Crossing Road; thence North 57 deg. West 210 feet; thence South 77 deg. 35 min. West 560 feet to point of beginning, containing 1 acre and being further shown on plat of survey made by J. C. Kerstens, C. E. dated July 11,1962. Acquired by Ronald D. Thomas from Reed Erickson at COB 131, page 514, records of Livingston Parish, Louisiana.

TRACT NUMBER 2:

All that certain tract or parcel of land lying and being situated in Section 27, Township 6 South, Range 3 East, Livingston Parish, Louisiana, more particularly described as follows, to-wit: From the Southwest corner of said Section 27 run North 69 deg. 30 min. East 973.7 feet to a point on Lockhart Road; thence South 52 deg. East 224 feet; thence South 60 deg. East 89 feet; thence South 74 deg. 45 min. East 25.3 feet; thence South 77 deg. 35 min. West 736 feet; thence West 468 feet to point of beginning containing 3.86 acres according to a plat made by J. C. Kerstens, C. E. dated March 11, 1969. Acquired by Ronald D. Thomas from Quaid, et. al. at COB 142, page 596, records of Livingston Parish, Louisiana.

TRACT NUMBER 3:

A strip of land lying and being in Section 27, Township 6 South, Range 3 East, Livingston Parish, Louisiana, containing one (1) acre, measuring 65 feet in width and running parallel and adjacent to the one acre tract of land acquired by Ronald D. Thomas by act recorded in Conveyance Book 131, entry 63542. Said tract being further described according to a plat of survey made by J. C. Kerstens, dated January 11, 1968, as follows: From the Southwest corner of said Section 27, run East 468 feet to point of beginning. From said point of beginning run East 310 feet; thence North 77 deg. 35 min. East 560 feet to Lockhart Crossing Road; thence along said road North 74 deg. 45 min. West 144 feet; thence South 77 deg. 35 min. West 736 feet to point of beginning. Acquired by Ronald D. Thomas from Quaid, et. al. at COB 134, page 476, records of Livingston Parish, Louisiana.

      . The properties are fully described in the appendix to this opinion.

      . La.R.S. 47:2180 B reads as follows:
      “The tax collector shall send to each taxpayer by certified mail, with return receipt requested, the notice prescribed herein, provided that in cities containing a population of over fifty thousand persons, the tax collector may either send this notice by certified mail or may make personal or domiciliary service on the taxpayer. After the tax collector shall have completed the service by the notices herein required, either by mail or by personal or domiciliary service, he shall make out a proces verbal stating therein the names of delinquents so notified, their post office addresses, a brief description of the property, the amount of taxes due and how the service of notice was made. Such proces verbal shall be signed officially by him in the presence of two witnesses and filed, in the parishes other than the parish or (sic) Orleans, in the office of the clerk of court for recording and preservation. In the parish of Orleans, such proces verbal shall be filed in the office of the state tax collector for the city of New Orleans and preserved for record. This proces verbal shall be received by the courts as evidence. The tax collector shall be entitled to collect actual mailing costs of each certified, with return receipt, notice, and mileage shall be charged for service of this notice. A like charge will be made if the property is adjudicated to the state or any subdivision thereof.”

      . It is argued in plaintiffs’ brief that plaintiffs assumed the mortgagee was paying the taxes and that the sheriff could easily have gotten their correct address from the mortgagee.


author: WATKINS, Judge.

text:
    Mary Ruth CASTILLE v. Robert Ross BUCK.
    No. 14586.
    Court of Appeal of Louisiana, First Circuit.
    March 2, 1982.

      Melanie A. Kleinpeter, Baton Rouge, for plaintiff-appellee Mary Ruth Castille.
    Lee Herrington, Jr., Baton Rouge, for defendant-appellant Robert Ross Buck.
    Before COVINGTON, COLE and WATKINS, JJ.
   WATKINS, Judge.

This is a rule for child support filed in Family Court for East Baton Rouge Parish by Mary Ruth Castille against her former' husband, Robert Ross Buck. A judgment of separation between the parties was rendered in the Fifteenth Judicial District Court for the Parish of Lafayette on September 19, 1978. In that judgment the wife, Mrs. Castille, was awarded custody of their minor child, Michelle Leigh Buck, who was the parties’ only child. On June 25, 1979, the husband, Mr. Buck, was ordered to pay $150.00 per month child support.

Judgment of divorce was rendered by the Family Court for East Baton Rouge Parish on September 29, 1980. This judgment made no mention of child support.

The Family Court in the proceeding from which the present appeal was taken treated the matter as a trial de novo to fix child support after divorce, rather than as a trial on a rule to increase child support. In so doing it acted properly. A judgment for child support rendered in a separation proceeding before divorce becomes merged with the divorce decree, and by that merger becomes no longer effective. Cotton v. Wright, 193 La. 520, 190 So. 665 (1939); Thornton v. Floyd, 229 La. 237, 85 So.2d 499 (1956); Starkey v. Starkey, 209 So.2d 593 (La.App. 1st Cir. 1967).

The trial court, after properly treating the matter as a trial de novo to fix child support after divorce, ordered Mr. Buck to pay $500.00 per month child support in semi-monthly installments of $250.00, payable the first and fifteenth of each month commencing March 1, 1981, and in addition, medical and prescription drug expenses for the minor child resulting from illness or accident. The defendant in rule, Robert Ross Buck, has appealed to this court. For reasons set forth below, we view the award of the trial court as being excessive, and reduce child support to $400.00 per month, and drug and medical expenses.

Notwithstanding the timely request of appellant, the trial judge did not give written findings of fact and reasons for judgment. This failure of the trial court is unfortunate because although it gave oral reasons for judgment, the reasons are rambling, and difficult to follow. The trial court in general used the figures supplied by Mrs. Castille, deleting certain items, such as religious contributions made by the child, insurance and taxes. Furthermore, although we recognize the calculation of child support cannot be done by strict mathematical formula (see Fall v. Fontenot, 307 So.2d 779 (La.App. 3d Cir. 1975)), the amount of child support awarded does not coincide with the figures recited and employed in the oral reasons for judgment, even if we take into consideration the custodial parent’s equal duty of support. The award of the trial court is much larger in amount than the award indicated by the figures it employs, and it is clear that the trial court used Mrs. Castille’s figures, which were obviously inflated.

Mr. Buck is employed as Director of Trade and Industrial Education by the State Department of Education at a salary of $30,608.00 per annum. He has a money market certificate in the amount of $39,-000.00 from which he receives the sum of $2,868.00 a year as interest. Mrs. Castille is also employed by the State Department of Education at an annual salary of $28,296.00 per annum. Thus the incomes of the former husband and wife are roughly the same.

The former wife, Mrs. Castille, as custodial parent has the usual parental duties of the custodial parent, which, in the case of the mother, as was stated in Dueote v. Dueote, 339 So.2d 835 (La.1976), involve “preparing meals, washing clothes, providing transportation, furnishing care and guidance, and performing all the day-to-day services that are demanded of a mother.”

Parents share the duty of supporting their children, and the burden to be imposed upon each, if each is equally able to meet that duty, is equal. LSA-C.C. art. 227, Graval v. Graval, 355 So.2d 1057 (La.App. 4th Cir. 1978). However, as was stated in Dueote, part of the duty of the custodial parent who is not employed is met by caring for the child in the ways given in the above quotation, so that the custodial parent is entitled to receive substantially more than one-half of the total sum required to support the child. However, where the custodial parent as well as the non-custodial parent is employed at a substantial salary, then, as noted in Graval, the circumstance is quite different, and although the custodial parent is entitled to some consideration for fulfilling the parental duties of caring for the child on a day-to-day basis, the amount the non-custodial parent is required to furnish is reduced to approximately more nearly one-half of the total amount of money needed to support the child. The trial court briefly alluded to these principles of law in its oral reasons for judgment, but failed to apply them to the facts. In so doing, it was guilty of a clear abuse of discretion. Jackson v. Jackson, 275 So.2d 456 (La.App. 2d Cir. 1973), Frazier v. Frazier, 318 So.2d 625 (La.App. 2d Cir. 1975).

The minor was ten years of age at the time of the rule for child support after divorce. The testimony indicated that she is a gifted child, and that her name has been entered on the waiting list of a private school in Baton Rouge. However, she is not now a student of that school. She is accustomed to a good standard of living, which should not be altered if the non-custodial parent has the financial resources to continue that standard of living, as he does in the present case. However, the figures as used by the wife and mother, we feel, are inflated because they are unrealistic. We find the following represents a proper accounting of the child’s expenses, and should enable the child to be maintained at a standard of living she enjoyed prior to the divorce:

“1) Housing_ .$100.00
2) Food & Household Supplies _137.50
3) Clothing_ 60.00
4) Transportation _ 50.00
5) Utilities_ 50.00
6) Laundry_ 9.00
7) Personal & grooming necessities . . 10.00
8) Educational expense_ 21.92
9) Reading materials_ 4.00
10) Child care_ 40.00
11) Lessons and music_ 30.00
12) Special events_ 20.00
TOTAL MONTHLY EXPENSES
ATTRIBUTABLE TO CHILD ...$532.42’

We recognize it is practically impossible to allocate between the custodial parent and child the costs of food, transportation and shelter to a mathematical certainty. See Fall v. Fontenot, supra. However, in view of the fact that Mrs. Castille apparently spends more money for these items than her present salary would justify, we find the sums given above represent the amount for these items attributable to the child.

Mrs. Castille as custodial parent is entitled to somewhat more than one-half of the total monthly expenses of the child under the circumstances of this case. That sum, we find should come to $400.00 per month, plus medical and prescription drug expenses.

Therefore, the judgment of the trial court is amended to order Mr. Buck to contribute $400.00 per month for the support of the minor child, Michelle Leigh Buck, payable in semi-monthly installments on the first and fifteenth of each month, and in addition to pay all medical and prescription drug expenses of that child arising from accident or illness. Costs shall be divided equally between the parties.

AMENDED AND AFFIRMED.


text:
    Thomas BLACK v. EBASCO SERVICES, INC., et al.
    No. 14594.
    Court of Appeal of Louisiana, First Circuit.
    March 2, 1982.
    Rehearing Denied April 13, 1982.
    Writ Denied May 28, 1982.

      Kenneth L. Riche, Baton Rouge, for plaintiff-appellant Thomas Black.
    Paul B. Deal, George E. Cain, Jr., New Orleans, for defendant-appellee Scaffolding & Erection Service, Inc., Ebasco Services, Inc., and Employers Cas. Co.
    Esmond Phelps, II, Dodge Hobson, New Orleans, for defendant-intervenor Employers Nat. Ins. Co.
    Before COVINGTON, COLE and WATKINS, JJ.
   COLE, Judge.

On August 10, 1979, plaintiff-appellant, Thomas Black, filed suit seeking recovery for damages he sustained as a result of a fall from a scaffold during the course of his employment with Southern States Masonry & Equipment, Inc. (Southern States). Named as defendants therein were: 1) Ebasco Services, Incorporated (Ebasco), the general contractor of appellant’s employer on the construction project on which appellant was injured; 2) Scaffolding Rental and Erection Service (Scaffolding Rental), a subcontractor of Ebasco, responsible for the erection and maintenance of all scaffolding used on the construction site; and 3) Employers Casualty Co., alleged by appellant to be the public liability insurer of Scaffolding Rental. Employers National Insurance Company (Employers National) intervened in this suit, as the workmen’s compensation insurer of appellant’s employer, Southern States, seeking a preference on any judgment rendered in favor of appellant to the extent of the benefits it had paid to him. Thereafter, appellant amended his petition to add Employers National, as the public liability insurer of Scaffolding Rental, as an additional defendant. Since it was the general contractor of appellant’s employer, and thus a statutory employer of appellant under LSA-R.S. 23:1061, the suit against Ebasco was dismissed on an exception of no cause of action.

Trial of this matter was held on January 20 and 21, 1981. Judgment was rendered, for written reasons assigned, on February 18, 1981, in favor of appellant and against defendants, Scaffolding Rental and Employers National, in solido, in the amount of $170,922.53. (According to the written reasons for judgment, this amount represents $3,922.53 for stipulated medical expenses and $167,000.00 for pain and suffering, future medical expenses, and loss of past and future wages.) There was also judgment in favor of intervenor, Employers National, in accordance with the stipulation of the parties, in the amount of $19,432.53, to be paid out of the proceeds of appellant’s judgment. Judgment was signed accordingly on March 10, 1981.

Appellant now appeals to this court complaining that the amount awarded to him was inadequate. The only issue, therefore, is that of quantum.

On December 11, 1978, appellant’s ankle was injured when he fell from a work scaffold. He was immediately taken to the emergency room of St. Charles Hospital, and was then transferred to Our Lady of the Lake Hospital in Baton Rouge, where his ankle was operated on that same day. Two metal screws and two pins, which are still in place in his ankle, were inserted during this operation. Appellant was released from the hospital on December 16, 1978.

Appellant’s injuries consisted of a commi-nuted fracture with medial dislocation of the right talus (ankle joint), a comminuted fracture of the medial malleolus of the right ankle, and a chip fracture of the medial aspect of the lateral malleolus of the right ankle. By far, the most serious of these injuries was the dislocated talus. The medical evidence in the record indicates this type of injury is very severe and extremely slow to heal. This is evident from the fact that, at the time of the trial, over two years after the accident, his doctor felt it was too early to determine appellant’s ultimate prognosis. Appellant was still under medical treatment at the time of the trial.

It was necessary for appellant to wear a cast for six months and to use crutches from the time of the accident until September 1980, at which time his doctor advised him he could dispense with the crutches except when walking long distances. Appellant testified his ankle often swelled, causing him to experience bad pain. This pain was particularly severe for the six months his foot was in the cast. He testified he continues to suffer some pain and swelling, particularly when he does much walking. Appellant was prescribed pain medication from time to time when the pain was most severe and took aspirins the rest of the time. Additionally, appellant testified his injury prevented him from pursuing the recreational activities, such as hunting and fishing, which he previously enjoyed.

Although no percentage of disability was assigned, the medical evidence indicates, even with the maximum recovery possible under the circumstances, appellant’s ankle will never be normal. He will always suffer from some limitation of motion in his foot. He will also be unable to walk on uneven surfaces or do any climbing. Additionally, the medical evidence indicates he has a significantly increased chance of developing arthritis due to his injury. The evidence also shows future surgery will be needed to remove the metal screws placed in appellant’s ankle. Although appellant’s progress has been good for this type of injury, there is always the danger his ankle will not heal properly and the talus will collapse, having disastrous results and requiring further surgery.

Appellant, who was fifty years old at the time, has been unemployed since the accident. He has been drawing social security benefits of approximately $600.00 per month during this period. He also received workmen’s compensation benefits totaling $15,510.00 during this period.

Prior to his injury, appellant was employed as a brick mason foreman. He has experience in no field other than brick masonry. His wages for the three years prior to his accident (1976, 1977, and 1978) were, respectively, $18,196.00, $16,882.00 and $18,-087.00. He would have earned approximately $1,380.00 more in 1978 had he not been injured on December 11th. Actual earnings for 1978, the last full year prior to the injury, would, therefore, have been $19,-467.00.

Dr. Jan Warren Duggar, an economist appearing on appellant’s behalf, was the only witness who testified as to appellant’s economic loss. He estimated appellant’s loss of past wages and fringe benefits to be in the amount of $61,500.00. His loss of future wages and fringe benefits, minus a minimum wage differential, was estimated to be in the amount of $316,017.00. Duggar included group insurance and pension payments, which appellant’s employer would have paid directly into a union fund, in his estimates of appellant’s loss of wages. Duggar’s calculations were based upon a 12.6 year work life expectancy, a 5% discount rate, and a 5.8% productivity and wage increase.

On cross-examination of Duggar, it was pointed out by appellee that, although Dug-gar’s figures were based upon a 40 hour week, 52 weeks per year, appellant, in fact, did not work this full amount of time. In his brief, appellant acknowledges this fact by submitting that all of Duggar’s figures be reduced by 13%, since appellant’s work record reflects an 87% employment activity. Appellee also pointed out that, although appellant’s hourly wage had increased significantly from 1976 to 1978, his annual salary had not. Duggar acknowledged this fact probably indicated appellant had worked less during the latter two years, further showing the irregularity of his work activity.

The medical evidence supports the trial judge’s conclusion that appellant will most likely never be able to return to work in the field of brick masonry. The trial judge was of the opinion he should be able to return to work in some less physical job.

Appellant has set forth five specifications of error, all relating to quantum. Appellant argues the trial judge failed to award sufficient damages for 1) past and future economic loss, 2) past and future physical pain, suffering, anguish and anxiety and 3) permanent disability; and that he failed to award any damages for 4) loss of plaintiff’s ability to engage in his occupation and 5) plaintiff’s fear that his condition might worsen.

The trier of fact is afforded broad discretion in making an award of general damages. La.C.C. art. 1934(3). Only when the record reveals a clear abuse of this discretion is an appellate court justified in disturbing a trial court award. Perniciaro v. Brinch, 384 So.2d 392 (La.1980); Carolio v. Wilson, 353 So.2d 249 (La.1977); Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976); Bitoun v. Landry, 302 So.2d 278 (La.1974); and Autin v. Allstate Insurance Company, 402 So.2d 219 (La.App. 1st Cir. 1981). In Bitoun, supra, the Louisiana Supreme Court said, at page 279:

“. . . The question is not whether a different award might have been more appropriate, but whether the award of the trial court can be reasonably supported by the evidence and justifiable inferences from the evidence before it. That such evidence might also support a greater (or smaller) award will not justify a change in the amount by the appellate court. Only when the trial court abuses its broad discretion should the award be adjusted, either up or down." (Emphasis added.)

In Reck v. Stevens, 373 So.2d 498 (La.1979), the Louisiana Supreme Court set out the standard to be followed by appellate courts in reviewing trial court damage awards. The court said, at page 501:

“Thus, the initial inquiry must always be directed at whether, the trier court’s award for the particular injuries and their effects upon this particular injured person is, a clear abuse of the trier of fact’s ‘much3 discretion,’ La.Civ.C. art. 1934(3) in the award of damages. It is only after articulated analysis of the facts discloses an abuse of discretion, that the award may on appellate review, for articulated reason, be considered either excessive, Carollo v. Wilson, 353 So.2d 249 (La.1977); Schexnayder v. Carpenter, 346 So.2d 196 (La.1977), or insufficient, Olds v. Ashley, 250 La. 935, 200 So.2d 1 (1967). Only after such determination of abuse has been reached, is a resort to prior awards appropriate under Coco for purposes of then determining what would be an appropriate award for the present case.”

The same standard of review is applied to awards of lost wages. Since such awards are speculative by nature and cannot be calculated with mathematical certainty, the trial court necessarily must have much discretion in fixing lost wage awards. Reeves v. Louisiana and Arkansas Railway Co., 304 So.2d 370 (La.App. 1st Cir. 1974), writ denied 305 So.2d 123 (1974). Such awards may not be disturbed absent an abuse of discretion. Robinson v. Graves, 343 So.2d 147 (La.1977).

A review of the award made in this case is complicated by the fact that it was an in globo award, with the exception of past medical expenses, which were awarded separately. There is simply no way of knowing the amount awarded by the trial judge for each element of damages.

This problem was considered in Mullin v. Vessier, 400 So.2d 1192 (La.App. 1st Cir. 1981), a case in which an award for general damages was made by the trial court, without itemization of each element of damages. This court, at pages 1192 and 1193, stated:

“Seldom, if ever, are the various elements of general damages itemized and an award made for each element. Ogaard v. Wiley, 325 So.2d 642 (La.App. 3rd Cir. 1975). Such itemization is not required. Chaisson v. J. Ray McDermott & Co., 324 So.2d 844 (La.App. 1st Cir. 1974), writ denied, 328 So.2d 86 (La.1976). The peculiar facts related to each item must indicate support for the total award. Ogaard v. Wiley, supra. It cannot be said that the district court omitted consideration of any particular items in reaching its decision on the total award for general damages in this case. Therefore, we turn to an examination of the record to review the district court’s total award for general damages. In so doing, we remain cognizant of the various items which may indicate support for the total award. . . . ” (Emphasis added.)

The total award must, therefore, be considered as a whole in determining whether or not the trial judge has abused his discretion.

The primary specification of error advanced by appellant relates to the inadequacy of the award with respect to the economic loss sustained by him. The figures of economic loss presented by him at trial were substantially greater than the total amount awarded by the trial judge for all of his damages, i.e., $377,517.00 as contrasted to $167,000.00. The trial judge obviously rejected the opinion of appellant’s expert and the figures presented by him. This is so even though there was no contradictory evidence disputing the figures presented or the method of calculation.

The determination as to whether or not to accept the expert’s testimony was factual in nature. We realize there were some factors which could have led the trial judge to reject the probative value of this testimony. For example, appellee brought out on cross-examination that Duggar’s calculations were based on 100% employment activity, which the evidence did not support in appellant’s case, i.e., appellant did not work 40 hours per week, 52 weeks a year. Also, the trial judge may have felt a discount rate and wage increase rate other than the combinations presented by appellant was more appropriate. Additionally, although the trial judge stated appellant would probably earn less money than before at any new, less physical work he undertook, he may have felt he could earn more than minimum wage. In appellant’s figures, a future earning differential based on the minimum wage was deducted.

Due to the fact the award is not itemized, we have no inkling of the amount awarded by the judge for past and future economic loss or the method he used in calculating this loss. We do know the trial judge felt it important to consider appellant’s net earnings rather than his gross earnings. The trial judge remarked, in overruling an objection, that it was very important to consider appellant’s take-home pay. This constitutes error since a trial judge should consider gross, rather than net, earnings in making an award of lost wages. Moran v. Canal Indemnity Insurance Company, 387 So.2d 1243 (La.App. 1st Cir. 1980); Reeves v. Louisiana and Arkansas Railway Co., supra. The error undoubtedly had some effect upon the trial judge’s assessment of total damages.

We conclude the trial court abused its discretion in awarding only the sum of $167,000.00 for the totality of the several items of damages.

One of the items of damages lends itself to a fairly accurate evaluation. This is appellant’s past economic loss, i.e., wages he would have earned from the date of the accident until the time of trial. Adjusting the figures of Dr. Duggar to reflect an 87% employment activity, appellant’s past economic loss amounted to $53,505.00. And, if we consider only appellant’s earnings for the last full year of employment prior to the accident, this item would be approximately $40,000.00, plus fringe benefits. Considering all factors, the evidence amply supports an award of $45,000.00 for this item of damage.

As regards pain and suffering, past and future, the trial court was in a better position to assess appellant’s complaints and consider the subjective factors. However, absent a separate evaluation by the trial court, we must now make this factual determination. The doctors who appeared were of the opinion appellant’s injuries resulted in severe pain. Fracture and dislocation of the ankle joint, according to the evidence, results in swelling from time to time. This produces pain. It particularly occurs if appellant attempts prolonged walking. In addition to this pain and discomfort, appellant must undergo surgery in the future to remove the metal screws and pins. This, of course, will cause pain and suffering. Also, for the remainder of appellant’s life there will be increasing pain, discomfort and problems associated with the arthritic condition caused by the injury. Appellant’s life expectancy is approximately twenty-five years.

A review of prior jurisprudence in this instance is of doubtful benefit due to the facts and circumstances peculiar only to this case. We have reviewed the cases cited by appellant and find, for the most part, they involve more severe, painful and disabling injuries than those experienced by appellant. Also, seldom are the damages itemized in case law, thus permitting the isolation of pain and suffering from other items of damages. We note this problem in Chapman v. Freeman’s Oilfield Service, Inc., 254 So.2d 468 (La.App. 3d Cir. 1971), a case wherein the injuries were most similar to those now before the court. See also, Hebert v. Diamond M Co., 385 So.2d 410 (La.App. 1st Cir. 1980); Dement v. Barnette, 375 So.2d 202 (La.App. 2d Cir. 1979). Based upon all relevant factors, we conclude a reasonable award for past and future pain and suffering to be the sum of $40,000.00.

Appellant sought a separate award for permanent disability. There is no question but what the disabling injuries to appellant’s right ankle has left him unable to pursue the field of brick masonry. Additionally, he is handicapped in non-occupational activities. His ankle will never permit him to resume a normal life. For this bodily deficit with its associated changes in lifestyle, an award of $25,000 is reasonable.

Another appropriate item of damages sought by appellant is future medical expenses. Although the cost is somewhat speculative, the need for future surgery substantiates an award which we fix at $1,000.00.

Appellant also argues it was error for the trial judge not to have awarded damages for loss of ability to engage in appellant’s lifetime occupation and his fear that his medical condition may worsen. This argument is without merit since, as correctly contended by appellee, appellant did not allege or request recovery for these items of damages at trial level. Furthermore, there is little or no proof of these damages in the record. Consequently, appellant cannot now complain with respect to non-recovery of these items.

The remaining item of damages is loss of future wages. Based upon factors which have been approved in numerous court decisions, Dr. Duggar arrived at a figure of $316,017.00. Adjusting this also to reflect an 87% employment activity, as we did for past wage loss, the amount is reduced to $274,950.00. However, because awards for loss of future earnings are speculative in nature, we reject a result based solely upon a mathematical formula. We prefer to consider mathematical projections of future earnings as only one of several guides relevant to this determination. An award for future economic loss which we deem to be just to both appellant and appel-lee is $135,000.00.

The abuse of the trial court’s discretion in this case is demonstrated by the itemization of the various elements of damage. Without considering future economic loss, we have illustrated damages totaling $111,000.00. Subtracting that amount from the in globo award of $167,000.00, leaves only $56,000.00 for loss of future income, an amount grossly inadequate. The facts related to each item of damages do not, therefore, support the total award of $167,000.00. See, Mullin v. Vessier, supra.

Having applied the methodology for appellate review of awards for general damages, as set forth in Reck v. Stevens, supra, we raise the award of $170,922.53 to $249,-922.53, a point we deem to be the lowest which is reasonably within the discretion afforded the trial court. In all other respects the judgment of the trial court is affirmed. Appellee is to pay all costs of this appeal.

AMENDED AND, AS AMENDED, AFFIRMED.

      . In its answer, Employers Casualty Co. denied that it was the public liability insurer of Scaffolding and, in fact, no judgment was rendered as to it.

      . Employers National was the insurer of both Southern States and Scaffolding Rental. It thus appears in this suit both as defendant, in its capacity as the public liability insurer of Scaffolding Rental, and as intervenor, in its capacity as workmen’s compensation insurer of Southern States.


author: COVINGTON, Judge.

text:
    A A SPECIALTY & SUPPLY, INC. v. Paul QUINN.
    No. 14596.
    Court of Appeal of Louisiana, First Circuit.
    March 2, 1982.
    Rehearing Denied April 13, 1982.

      Martin A. Schott, Baton Rouge, for plaintiff-appellant.
    Allen R. Boudreaux, Baton Rouge, for defendant-appellee.
    Before COVINGTON, COLE and WATKINS, JJ.
   COVINGTON, Judge.

This is an appeal by A A Specialty & Supply, Inc. from a judgment in which A A Specialty was awarded the principal sum of $425 against Paul Quinn, and in turn Quinn was awarded the principal sum of $2,500 against A A Specialty. By amended judgment, each party was cast for its own costs, with each party cast for one-half of the expert witness fees.

The suit arises from a claim by A A Specialty against Quinn for its sale, delivery and installation of a Majestic Fireplace for a fixed price of $425. Quinn admitted the sale, delivery and installation of the fireplace; but as plaintiff in reconvention, Quinn claimed that A A Specialty, in installing the fireplace, had cut the strong back (or beam) supporting the span of the rafters of the roof, causing about a two-inch downward deflection, which resulted in damages to him. Quinn further alleged that A A Specialty, “as contractor for the installation of said fireplace, held itself as having sufficient knowledge in proper construction method,” which was admitted by A A Specialty.

The evidence shows that A A Specialty did cut the strong back supporting the span of roof-rafters, although Quinn had personally instructed the workmen not to cut the strong back. The evidence further shows that the cutting of the strong back caused a noticeable downward deflection, which caused damage to Quinn. The plaintiff in reconvention established his loss in the amount of $2,500 from the testimony of Kenneth Patin of Patin Home Builders, Incorporated, General Contractors.

This is a construction contract rather than an open account, or a contract of sale. Duhon v. Three Friends Homebuilders Corporation, 396 So.2d 559 (La.App. 3 Cir. 1981). Here the contractor was to furnish and install the fireplace. Kegier’s Inc. v. Levy, 239 So.2d 450 (La.App. 4 Cir. 1970), writ refused, 256 La. 1150, 241 So.2d 253 (1970). A A Specialty did not merely sell the fireplace to Quinn; it delivered and installed it for him. This was intended to be a one-time transaction, not the purchase of merchandise at intervals over a period of time. It was based on an agreement whose terms were fixed and certain. It has none of the aspects of an open account. See Delta Tank Manufacturing Co. v. Dearborn Machinery Movers Company, 144 So.2d 698 (La.App. 4 Cir. 1962); see also Troendle v. Boudreaux, 246 So.2d 732 (La.App. 4 Cir. 1971).

The contractor is required to perform the contract in a workmanlike manner. See Maxwell v. Bernard, 343 So.2d 431 (La.App. 3 Cir. 1977).

In Neel v. O’Quinn, 313 So.2d 286, 289 (La.App. 3 Cir. 1975), writ denied, 319 So.2d 440 (La.1975), the Court stated:

“It is implied in every building contract that the work of the builder be performed in a good workmanlike manner, free from defect either in material or workmanship.”

The basic provision with respect to a contractor’s liability for failure to perform properly a building contract is LSA-C.C. art. 2769 which provides:

“If an undertaker fails to do the work he has contracted to do, or if he does not execute it in the manner and at the time he has agreed to do it, he shall be liable in damages for the losses that may ensue from his non-compliance with his contract.”

As shown above, the trial court awarded damages for the amount required to make the necessary repairs. The evidence supports this award. See Martin v. AAA Brick Company, Inc., 386 So.2d 987 (La.App. 3 Cir. 1980).

Plaintiff-appellant further argues that the trial court erred in allowing an enlargement of the pleadings by admitting testimony regarding repairs already made to the Quinn residence. The evidence complained of was well within the plaintiff-in-reconvention’s claim for damages. In any event, A A Specialty was not prejudiced by the evidence of previous repairs, since the trial judge made no award to Quinn for such repairs (limiting damages to the amount that Quinn’s expert testified would be required to repair the residence).

The testimony was clear that the work done by the owner was of a temporary nature. The contractor, Patin, testified that a portion of his work included a “jacking” of the ceiling to install a new strong back. The corrective work of Patin was in no way affected by the repairs made by the owner. Such repairs merely mitigated possible damages caused by A A Specialty.

Appellant also argues that it was entitled to recover attorney’s fees on its main demand pursuant to LSA-R.S. 9:2781, because Quinn admitted in his answer that he owed A A Specialty for the fireplace. A judicial admission admits only well pleaded factual elements of the claim; it does not admit the “legal” effects of the facts. As we have found above, the transaction between A A Specialty and Quinn was a construction contract, not an open account; LSA-R.S. 9:2781 has no application to the instant case. See Richards v. Gulfco Electronics Corporation, 360 So.2d 609 (La.App. 4 Cir. 1978), writ denied, 363 So.2d 69 (La.1978); Delta Tank Manufacturing Co. v. Dearborn Machinery Movers Company, supra.

When we consider all of the factors of the instant case, we conclude that Quinn is entitled to recover $2,500, the amount which the trial judge awarded. This amount represents the proved “losses” ensuing from A A Specialty’s non-compliance with the contract. LSA-C.C. art. 2769. We also conclude that A A Specialty is not entitled to recover attorney’s fees.

Having so concluded, we affirm the judgment of the trial court. Costs of this appeal are to be paid by the appellant, A A Specialty & Supply, Inc.

AFFIRMED.


text:
    SABINE PIPE & SUPPLY COMPANY v. Shirley S. McNAMARA, Secretary, Department of Revenue and Taxation, State of Louisiana.
    No. 14599.
    Court of Appeal of Louisiana, First Circuit.
    March 2, 1982.
    Rehearing Denied April 13, 1982.
    Writ Denied May 28, 1982.

      D. Irvin Couvillion, Baton Rouge, for plaintiff-appellant Sabine Pipe & Supply Co.
    Howard M. Romaine, E. Matt Callaway, Trial Atty., Dept, of Revenue and Taxation, State of La., Baton Rouge, for defendant-appellee Shirley S. McNamara, Secretary, Dept, of Revenue and Taxation, State of La.
    Before COVINGTON, COLE and WATKINS, JJ.
   COVINGTON, Judge.

This is an appeal by the plaintiff, Sabine Pipe & Supply Company, from a judgment of the District Court upholding the judgment of the Louisiana Board of Tax Appeals which was rendered against the plaintiff sustaining a claim made against the plaintiff by the defendant, Shirley S. McNamara, Secretary, Department of Revenue and Taxation, State of Louisiana, in the amount of $39,953.72, plus interest, arising out of taxes on sales of tangible personal property by the plaintiff made at its business location in Kilgore, Texas, for the period from January 1, 1970 through December 31, 1975, and delivered in Sabine’s trucks to customers in the State of Louisiana. During the period in question, Sabine, a Texas corporation engaged in the retail business of selling oilfield equipment and supplies such as pipes, casing and pumping units, and other equipment related to the oilfield service industry, collected the sum of money in question as sales or use taxes from Louisiana customers for purchases of oilfield equipment, but never remitted the taxes to the State of Louisiana.

Since Sabine failed to remit the collected taxes to the State of Louisiana on its sales to Louisiana customers, a claim was made under LSA-R.S. 47:1564, on May 5, 1978, for the total amount shown above. Additionally, a penalty was sought for the failure to remit.

Pursuant to LSA-R.S. 47:1431 et seq., Sabine timely filed a petition with the Board of Tax Appeals, State of Louisiana. An evidentiary hearing, contradictorily with the Secretary (Collector), was held before the Board on August 15, 1979. Subsequently, the Board rendered a decision on October 23, 1980, in favor of the Secretary, upholding the State’s claim but denying the penalty. Thereafter, Sabine petitioned the Nineteenth Judicial District Court for East Baton Rouge Parish, pursuant to LSA-R.S. 47:1434, for judicial review of the Board’s decision. The record before the Board constituted the record for judicial review and served as the basis for the action on review.

In due course, the District Court rendered judgment against Sabine on April 14, 1981, sustaining the Board’s decision. Sabine has suspensively appealed. We affirm.

Sabine admittedly withheld and collected from its Louisiana customers, at the time of the sales to them, amounts equivalent to the Louisiana sales or use taxes, and indicated on the sales invoices of each sale such amounts. Copies of these invoices for sales in the years in question were introduced in evidence and form a part of the record. Further, Sabine admittedly remitted no sales or use taxes to this State from its sales of merchandise to Louisiana customers, which merchandise was generally delivered to Louisiana customers on trucks owned by Sabine. These facts are not disputed. Also, there is no dispute as to the amount which Sabine collected and has not remitted.

The appellant claims that, as an out-of-state seller, it was not required by the laws of Louisiana to collect the sales or use tax since it was not a “dealer” within the meaning of the Louisiana Sales Tax Law; that it cannot be required to remit the sales or use taxes to the State of Louisiana on sales of merchandise (tangible personal property) under the circumstances of this case; and that the taxes claimed by Louisiana are barred by prescription.

The record establishes that the transactions between Sabine and its Louisiana customers were Texas sales on which no sales taxes were due the State of Louisiana; however, on these transactions through which merchandise (personal tangible property) was brought into this State for use in this State, “use taxes” were due. LSA-R.S. 47:302(A)(2); Fontenot v. S. E. W. Oil Corporation, 232 La. 1011, 95 So.2d 638 (1957). Plaintiff undertook to collect this use tax from each of its Louisiana customers. This money so collected by Sabine was not a part of the purchase price; it was money collected by it which was owed by its Louisiana customers to the State of Louisiana for use taxes. This money was collected by Sabine as taxes owed to this State; and it was paid by the Louisiana purchasers as use taxes to satisfy their tax obligations to Louisiana. By undertaking to collect Louisiana’s use taxes for the State, plaintiff entered into a fiduciary relationship with the State. One of its obligations, as fiduciary, is to remit to Louisiana those taxes which belong to Louisiana. By failing to do so, Sabine has breached its fiduciary duty. See Amiss v. State, 340 So.2d 1085 (La.App. 1 Cir. 1976).

We are not concerned with whether or not the label “dealer” is pinned on plaintiff, despite the emphasis placed upon this question by both appellant and appellee. Once Sabine collected the use tax due the State of Louisiana, this State can compel it to remit the tax to Louisiana. LSA-R.S. 47:306 and 47:318 require that taxes that have been collected from purchasers must be remitted to the Secretary (Collector).

The appellant also takes the position that the remittance of the sums collected by it from Louisiana purchasers is barred by prescription. There is no merit to this claim. This is not a suit against the taxpayer to collect taxes, which is barred after three years by Article 7, Section 16 of the Louisiana Constitution of 1974 and Article 19, Section 19 of the Louisiana Constitution of 1921. The collection of the taxes as contemplated by the Constitutions has taken place. This State is not barred by the three-year prescription from requiring its fiduciary to turn over to it sums collected on its behalf. LSA-C.C. art. 3544. In addition, Sabine has interrupted prescription under the circumstances of this case by its acknowledgement of the rights of the State of Louisiana. See LSA-C.C. art. 3520; Collector of Revenue v. J. L. Richardson Company, 247 So.2d 151 (La.App. 4 Cir. 1971), writ refused, 258 La. 915, 248 So.2d 586 (1971).

The action of the State in attempting to have its fiduciary, Sabine, remit to the State money which the fiduciary collected as use taxes for the State in no way violates any constitutional right of Sabine. The constitutionality of the use tax has been upheld. Mouton v. Klatex, Inc., 238 So.2d 1 (La.App. 1 Cir. 1970), writ refused, 256 La. 873, 239 So.2d 365 (1970); Chicago Bridge & Iron Company v. Cocreham, 317 So.2d 605 (La.1975).

The Board clearly stated its accord with National Bellas Hess, Inc. v. Department of Revenue of the State of Illinois, 386 U.S. 753, 87 S.Ct. 1389, 18 L.Ed.2d 505 (1967), by stating:

“This board agrees with petitioner’s contention that it cannot be compelled to collect the Louisiana use tax. The state of Louisiana did not compel the collection of taxes, but despite that fact, the petitioner took it upon itself to inform its purchasers that a tax was due and collected that sum.”

Moreover, Louisiana expressly recognizes its taxing limitations in LSA-R.S. 47:305(5), which provides:

“It is not the intention of this Chapter to levy a tax upon articles of tangible personal property imported into this state, or produced or manufactured in this state, for export; nor is it the intention of this Chapter to levy a tax on bona fide interstate commerce. It is, however, the intention of this Chapter to levy a tax on the sale at retail, the use, the consumption, the distribution, and the storage to be used or consumed in this state, of tangible personal property after it has come to rest in this state and has become a part of the mass of property in this state.”

The State urges in its brief that a penalty should be imposed on Sabine. Although the State sought to have penalties imposed on Sabine by the Board, the Board ruled that penalties were not due. The State did not seek review of the issue of penalties by the District Court, merely asserting in its answer that “the judgment of the Board was in accordance with law and therefore should not be modified or reversed.” The question of penalties is, thus, not an issue before this Court.

Accordingly, the judgment appealed is affirmed at appellant’s costs.

AFFIRMED.

      . Parenthetically, Sabine is also an owner of Louisiana properties, “several oil wells in North Louisiana.”

      . See Collector of Revenue v. Murphy Oil Corporation, 351 So.2d 1234 (La.App. 4 Cir. 1977), for discussion of procedure for review of collection of state taxes.


author: EDWARDS, Judge.

text:
    Charlie W. JORDAN v. Ray T. SUTTON, Commissioner of Conservation, State of Louisiana.
    No. 14606.
    Court of Appeal of Louisiana, First Circuit.
    March 2, 1982.
    Rehearing Denied April 13, 1982.
    Writ Denied May 17, 1982.

      Hal R. Henderson, Arcadia, Bobby L. Cul-pepper, Jonesboro, for plaintiff-appellant Charlie W. Jordan.
    Paul B. David, Kerry M. Massari, Lafayette, for intervenor appellee Southern Natural Gas Co.
    Veil David DeVillier, Eunice, for defendant-appellee Ray T. Sutton, Com’r Dept, of Conservation, State of La.
    Before CHIASSON, EDWARDS and LEAR, JJ.
   EDWARDS, Judge.

Pursuant to a public hearing conducted February 22, 1979, the defendant, Commissioner of Conservation, issued Order No. 78-F-4. This order, signed on April 20, 1979, created an underground natural gas storage area in the Pettit Limestone Formation, Reservoir A, Bear Creek Field, Bien-ville Parish, Louisiana. Finding No. 1 of the order provides as follows:

“That the Pettit Limestone Formation, Reservoir A, in the Bear Creek Field, is a closed reservoir productive of only gas and condensate, and that it is effectively separated from any other reservoir.”

Charlie W. Jordan, plaintiff in the present suit, was represented at the hearing which resulted in issuance of the order.

On July 21,1980, Jordan filed suit against the Commissioner of Conservation, seeking to enjoin enforcement of the order. The district court sustained the exception of prescription filed by the defendant and Southern Natural Gas, which had intervened in the suit. On appeal, this ruling of the trial court was reversed and the case was remanded.

On September 18, 1980, prior to this court’s reversal of the trial court’s ruling, plaintiff and others filed an “Application for Public Hearing,” requesting that the Commissioner of Conservation call a public hearing:

“To re-define the Pettit Limestone Formation, Reservoir A, lying within the Bear Creek Field, Bienville Parish, so as to exclude therefrom all portions of said reservoir which can be shown to contain recoverable oil. Further, that the use of the Pettit Limestone Formation as a gas storage reservoir be restricted to those zones shown incapable of producing gas or oil.”

The applicants based their request on allegations of newly discovered evidence that had become known to them subsequent to the February 22, 1979, hearing which resulted in the issuance of Order No. 78-F-4. The Commissioner denied applicants’ request.

On November 7, 1980, plaintiff, Charlie W. Jordan, instituted this action against the Commissioner of Conservation, Ray T. Sutton, seeking a writ of mandamus ordering the Commissioner to call a public hearing as requested in plaintiff’s application. Southern Natural Gas Company (“Southern”) intervened in the action on behalf of the defendant.

Defendant and intervenor urged a number of exceptions. The only one considered by the district court was the exception of “no right or cause” of action, or, in the alternative, prescription. The defendant and intervenor argued that plaintiff was not entitled to a hearing because LSA-R.S. 49:959(A), a section of the Administrative Procedure Act, provides that an administrative order is subject to rehearing within ten days from the date of its entry.

The trial court maintained the exception of prescription and dismissed plaintiff’s suit at his cost. Plaintiff has appealed. We affirm.

LSA-R.S. 49:959(A) provides as follows:

“A decision or order in a case of adjudication shall be subject to rehearing, reopening, or reconsideration by the agency, within ten days from the date of its entry. The grounds for such action shall be either that:
(1) The decision or order is clearly contrary to the law and the evidence;
(2) The party has discovered since the hearing evidence important to the issues which he could not have with due diligence obtained before or during the hearing;
(3) There is a showing that issues not previously considered ought to be examined in order properly to dispose of the matter; or
(4) There is other good ground for further consideration of the issues and the evidence in the public interest.”

The statute allows a party to apply for a rehearing within ten days after entry of the agency order. One of the grounds upon which rehearing may be sought is that “the party has discovered since the hearing evidence important to the issues which he could not have with due diligence obtained before or during the hearing. . . . ”

The trial court’s decision was obviously based on a finding that plaintiff’s application for a hearing was in actuality an application for a rehearing and that it was not filed timely. That conclusion was correct.

The Office of Conservation is an “agency” within the meaning of the Administrative Procedure Act. See LSA-R.S. 49:951(2). The hearing held by the Commissioner of Conservation, which resulted in the issuance of Order No. 78-F-4, was an “adjudication” as contemplated by the Act. See LSA-R.S. 49:951(1). Thus, LSA-R.S. 49:959(A) is applicable in this case.

Plaintiff asserts that LSA-R.S. 49:959(A) is not controlling in this case, and relies on LSA-R.S. 30:6 which provides, in pertinent part, as follows:

“Any interested person has the right to have the commissioner call a hearing for the purpose of taking action in respect to a matter within the jurisdiction of the commissioner by making a request therefor in writing. Upon receiving the request the commissioner shall promptly call a hearing.”

Plaintiff maintains that the request for a hearing filed with the Commissioner was not an application for rehearing but was an application for a new hearing under LSA-R.S. 30:6.

The trial court correctly concluded that plaintiff’s application was actually a request for rehearing. As noted above, one of the grounds for seeking a rehearing under LSA-R.S. 49:959(A) is the discovery of new evidence. An alleged discovery of new evidence was the basis for plaintiff’s request for a hearing to modify Order No. 78-F-4. In issuing the order, the Commissioner of Conservation found as a fact that there was no recoverable oil in' the gas storage reservoir. Plaintiff’s application for hearing challenged this finding and sought modification of the order. By its nature, plaintiff’s application, which asks the Commissioner to “re-define the Pettit Limestone Formation,” sought a rehearing and re-evaluation of the hearing that defined the Pettit Limestone Formation.

We are not unmindful of this court’s decision in Jordan v. Sutton, 401 So.2d 389 (La.App. 1st Cir. 1981). That decision held that Jordan’s right to seek judicial review of the order in question was not governed by the time restrictions of the Administrative Procedure Act, specifically LSA-R.S. 49:964. The decision in Jordan was based on a finding that LSA-R.S. 30:12 provided a “parallel and co-existing” method of seeking judicial review of an order of the Commissioner of Conservation, and that the time limitations of LSA-R.S. 49:964 did not apply to that method of review.

In the instant case, however, the two statutes with which we are confronted do not confer “parallel and co-existing” methods of seeking reconsideration of an order of the Commissioner of Conservation. LSA-R.S. 30:6 requires the Commissioner to call a hearing whenever one is requested by an interested person. LSA-R.S. 49:959(A) requires that a rehearing from an administrative order be requested within ten days from the date of its entry. These statutes do not provide alternative methods of seeking reconsideration. In our view, the first, LSA-R.S. 30:6, envisions a situation where the Commissioner’s authority is invoked on an issue which he has previously not addressed. The second, LSA-R.S. 49:959(A), deals with attempts to have an administrative agency reconsider its adjudication. A determination of whether an application for hearing is an original invocation of the Commissioner’s authority or in actuality a request for rehearing and reconsideration is best determined on a case by case basis. In the instant case, the request filed by petitioner is governed by the latter statute; he seeks to have the Commissioner review an order which was issued after a full hearing and fact finding process.

A contrary conclusion would give a disgruntled party the right to compel the Commissioner of Conservation to hold repeated hearings, ad infinitum, for the purpose of reconsidering an order. We will not allow appellant to achieve such a result by merely labeling his request an “Application for Public Hearing.” As we have noted above, we conclude that the true nature of appellant’s request was to have the Commissioner re-evaluate his original order. Thus, his request is governed by that section of the Administrative Procedure Act relative to requests for rehearings from an administrative order.

Because plaintiff failed to timely request a rehearing, he was not entitled to one under the terms of LSA-R.S. 49:959(A). Therefore, he was not entitled to a writ of mandamus ordering the Commissioner to grant a public hearing. In light of this state of facts, the trial court correctly dismissed plaintiff’s petition.

For the foregoing reasons, the judgment of the district court is affirmed. Costs of this appeal are to be paid by plaintiff-appellant.

AFFIRMED.

CHIASSON, J., dissents.

      . Jordan v. Sutton, 401 So.2d 389 (La.App. 1st Cir. 1981).


text:
    U. S. FIRE INSURANCE COMPANY v. Ellen Tooley SWANN.
    No. 15072.
    Court of Appeal of Louisiana, First Circuit.
    March 2, 1982.
    Rehearing Denied April 13, 1982.

      Leonard A. Young, New Orleans, for plaintiff, appellee.
    Frank M. Repass, III, Tom Thornhill, New Orleans, for defendant, appellant.
    Before ELLIS, LOTTINGER and PONDER, JJ.
   PONDER, Judge.

There were three related cases on the docket of the Twenty-Second Judicial District Court:

No. 54668, in which James E. and Janet S. Daspit sought damages from Ellen Too-ley Swann for a fire loss;

No. 54773, in which Ellen Tooley Swann sought recovery of the balance on a promissory note given by the Daspits in the purchase of a business and of damages for breach of contract to keep insured the building leased to the Daspits;

No. 56126, in which U. S. Fire Insurance Company sought recovery of the amount paid by it to the Daspits for their fire loss. The motion to dismiss arises in the last case.

The three cases were consolidated for trial.

After trial and a taking under advisement, the court on July 9, 1981, under the heading “James E. Daspit and his wife, Janet S. Daspit d/b/a Swann Supply versus Ellen Tooley Swann, widow of Francis E. Swann, Individually and as Administratrix of the Succession of Francis E. Swann, Number 54668, Reasons for Judgment,” found Mrs. Swann responsible for the damage to the Daspits, saying it “will award him the sum of $105,000.00 subject to the claim of U. S. Fire Insurance Company in the amount of $75,000.00 and the claim of Mrs. Swann, ...” on which it found the amount of $25,548.18 to be due.

On July 15, 1981 the court signed judgment awarding $75,000.00 to the plaintiff in Suit No. 56,126, U. S. Fire Insurance Company versus Ellen Tooley Swann, et al.

On July 17, 1981, the court signed judgment filed on July 16, 1981, in Suit No. 54,668, “James E. Daspit and his wife, Janet S. Daspit d/b/a Swann Supply versus Ellen Tooley Swann, widow of Francis E. Swann, Individually and as Administratrix of the Succession of Francis E. Swann,” awarding the Daspits $105,000.00, and also awarding Mrs. Swann judgment against the Daspits in the amount of $25,545.18.

On August 7, 1981, in a Petition and Order of Appeal, headed “James E. Daspit and his wife, Janet S. Daspit d/b/a Swann Supply versus Ellen Tooley Swann, widow of Francis E. Swann, Individually and as Administratrix of the Succession of Francis E. Swann,” Ellen Tooley Swann asked for “a suspensive appeal from the judgment rendered on July 16, 1981.” This was granted on August 25, 1981, a bond of $130,000.00 being required. The order provided that “the appeal of this case be returnable” on October 25, 1981.

The bond filed in the same suit and having the same heading refers to the award of $105,000.00 to the Daspits and the award of $25,545.18 to Mrs. Swann. There is no reference to the award of $75,000.00 to U. S. Fire Insurance Company or to Suit No. 56,126 either by number or by title.

On August 27, 1981, the clerk of court sent notice of appeal of the three cases to all counsel.

On September 29, 1981 the clerk of court signed a Certificate of No Appeal in Suit No. 56,126, U. S. Fire Insurance Company versus Ellen Tooley Swann and on the same day sent a letter to all counsel in the three cases saying that only Suit No. 54,668 had been appealed and that the prior notice of appeal should be disregarded.

In a Motion filed on October 2, 1981, captioned with the numbers and titles of the three cases, Ellen T. Swann asked that an amended judgment incorporating all the awards and correcting some “errors in calculation of sums due by the various parties ...” be signed. The court granted the motion. The award to U. S. Fire Insurance Company was incorporated but not altered.

A petition for appeal, headed by the numbers and titles of all three cases was filed on October 15, 1981. The order setting a bond of $135,000.00 was signed on October 20,1981. The bond with the heading of the names and numbers of the three cases and referring to the numbers of the three cases within the body had been filed on October 15, 1981 along with the petition of appeal.

The records were filed in this court on December 2, 1981. U. S. Fire Insurance Company filed a motion to dismiss the appeal on December 3, 1981.

We dismiss the appeal.

The normal delays for appeal expired on September 28, 1981. Unless an appeal was taken prior to that time or unless the time was validly extended in some manner the judgment is now final and this court is without power to amend or reverse. C.C. Art. 3556(31); C.C.P. Art. 1842; Mollish v. Mollish, 328 So.2d 189 (La.App. 4th Cir. 1976), writ denied 329 So.2d 180 (La.1976).

Appellant asserts first that the appeal of August 7,1981, effectively appealed all three cases. We reject that argument. An appeal in one of several consolidated cases does not constitute an appeal of all those cases absent circumstances not present in this case. See Prince v. Paretti Pontiac Company, 262 So.2d 826 (La.App. 4th Cir. 1972); reversed on other grounds, 281 So.2d 112 (La.1973); Voth v. American Home Assurance Company, 219 So.2d 236 (La.App. 1st Cir. 1969); Darouse v. Mamon, 201 So.2d 362 (La.App. 1st Cir. 1967). The Voth and Darouse cases were approved in dicta in Reed v. Pittman, 251 La. 389, 242 So.2d 554 (1970). The petition and order of appeal and the bond made no reference to the U. S. Fire Insurance Company case by name or number. The amount of the bond was not entirely inconsistent with the judgment signed in the Daspit and Swann cases, ambiguous as that judgment was. There were no references to the other judgment in name, number or substance. We find inapposite those cases cited by appellee, involving two judgments in one case and the incorrect identification of the judgment appealed.

Appellant contends that the amount of the suspensive appeal bond, $130,000.00 is evidence of the intent to appeal both judgments. However, the amount awarded to the Daspits, $105,000.00 subject to the credit of the amount due by the Daspits, while ambiguous could reasonably lead to the conclusion that the $130,000.00 bond would be required.

Finally, appellant asserts that the amended judgment of October 2, 1981, had the effect of extending the delay for appealing. There are two answers to this contention. The U. S. Fire Insurance Company judgment had become final by that time. There is considerable doubt that even a permissible amendment after that time would effect a new time delay for appealing. Beyond this, however, appellant fails because the amended judgment of October 2, 1981, did not make any changes in calculations of the judgment in the U. S. Fire Insurance Company case. Neither in the motion to amend nor in briefs filed herein, has appellant pointed to any necessity to change the phraseology or the calculations of that judgment other than his contention that all awards should be included in one judgment. All the changes were in the other judgment. Under these circumstances the motion to amend in Suit No. 56,126 was ineffective. C.C.P. Art. 1951.

For these reasons, we dismiss the appeal in Suit No. 56,126, U. S. Fire Insurance Company versus Ellen Tooley Swann, et al. The costs are assessed against the appellant.

APPEAL DISMISSED.


author: KLEES, Judge. REDMANN, Judge,

text:
    In the Interest of H. M., et al.
    No. 13002.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 2, 1982.
    Rehearing Denied April 16, 1982.
    Arthur L. Harris, Sr., Harris & Stampley, New Orleans, for Parents.
    Dorothy F. Waldrup, New Orleans, for Children.
    Richard M. Goldman, New Orleans, for Office of Human Development.
    Paul G. Mayoral, Mary Beck Widmann, Asst. Dist. Attys., Juvenile Div., Orleans Parish, New Orleans, for the State.
    Before KLIEBERT, REDMANN and KLEES, JJ.
   ORDER OF DISMISSAL

KLEES, Judge.

The court has considered the Motion to Dismiss Appeal filed by the State of Louisiana through the District Attorney’s office for Orleans Parish, the Motion to Dismiss Appeal filed on behalf of Mr. and Mrs. Cornelius Tilton, Statement of No Objection to the Motion to Dismiss appeal filed by the State of Louisiana through the District Attorney’s office for Orleans Parish entered by the appointed legal representative of the two minor children, as well as the opposition to the motion to dismiss, filed by the Office of Human Development for the State of Louisiana. After an examination of the record this court finds that the Original Motion for Devolutive Appeal filed November 6, 1981 appealed from that judgment of the Juvenile Court read and signed September 8, 1981. Under LSA-CJP, Art. 99; Appeals shall be taken within fifteen (15) days from the entering of the judgment of disposition.

As this appeal was taken long after the expiration of the 15 day time limit, we are of the opinion that the appeal must be dismissed for lack of jurisdiction.

IT IS ORDERED, that this appeal be dismissed for lack of jurisdiction at appellant’s costs.

REDMANN, J., dissenting with written reasons.

REDMANN, Judge,

dissenting.

There is no problem of jurisdiction in an untimely appeal in juvenile or criminal matters in this state. The notion that untimeliness of a civil appeal deprives the appellate court of jurisdiction is based on La.C.C.P. 2088’s use of the word “jurisdiction” (in a different meaning, at that). But there is no word “jurisdiction” in the statute applicable here, La.C.J.P. 99.

Particularly in the circumstances of this case, where two infant children, one male and one female, are allegedly being sent back into the household of an adult male who abuses their sex organs and rectums for his own sexual gratification, we should recognize that the failure of some public employee to appeal timely is not the fault of the afflicted infants and we should grant an out-of-time appeal (as does the Louisiana supreme court, as in State v. Wilkerson, 403 So.2d 652 (La.1981)) and decide the merits of this case immediately.


author: BOUTALL, Judge.

text:
    Eileen Konneker LEJEUNE v. Glenn J. LEJEUNE.
    No. 12377.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 9, 1982.
    Bruce Reed of Reed & Reed, New Orleans, for Eileen Konneker Lejeune, plaintiff-appellant.
    Don C. Gardner, Metairie, for Glenn J. Lejeune, defendant-appellee.
    Before BOUTALL, CHEHARDY and KLIEBERT, JJ.
   BOUTALL, Judge.

Ancillary to a wife’s separation suit, judgment was rendered in favor of the wife granting custody of the two minor children with $250.00 per month for their support and $100.00 per month alimony pendente lite for her. The wife appeals that part of the decision dealing with child support and alimony contending that she is entitled to more support in accordance with her needs and his means. We affirm.

Eileen LeJeune argues that her husband, Glenn LeJeune, can afford to pay additional support considering his salary of roughly $1,800.00 per month. Her take home pay is $130.00 per week. At trial, she testified that her expenses far exceeded her total income by some $1,400.00 per month. We note that some of those expenses introduced into evidence are really not expenses at all, but projections which would allow her to live the way she believes she should. However, it should be pointed out that the husband is in the process of trying to pay the considerable community debts on the community home, life insurance, credit union, and various other credit institutions.

We appreciate the financial difficulties that the wife and husband must bear when there is a split in the marital relationship. The record reflects that both the wife and husband are under a heavy financial strain. However, we cannot say that the trial court incorrectly assessed the income and expenses of both parties. We find that the trial court did not abuse his discretion in his award of alimony pendente lite and child support, accordingly, we affirm that decision.

AFFIRMED.


author: SCHOTT, Judge.

text:
    Pauline A. ROSEVALLY and Henry H. Arnold, III v. T. L. JAMES & CO., INC. et al.
    No. 12667.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 9, 1982.
    Rehearing Denied April 16, 1982.
    Chris Smith, III, Smith, Ford & Clark, Leesville, for plaintiffs-appellants.
    Gerard M. Dillon, Dillon & Cambre, New Orleans, for defendants-appellees.
    Jesse S. Guillot, New Orleans, for defendant-appellee Dept, of Transp. and Development.
    Before SCHOTT, AUGUSTINE and LO-BRANO, JJ.
   SCHOTT, Judge.

Plaintiff, Mrs. Pauline Rosevally, and her husband, Henry E. Arnold, have appealed from a dismissal of their suit against defendants, T. L. James & Company, Inc., Atlas Construction Company, Inc., and the Louisiana Department of Highways. The issue is a factual one as to whether the trial judge was clearly wrong in dismissing plaintiff’s suit.

Plaintiff, Pauline Rosevally, was driving the automobile of her co-plaintiff, Henry H. Arnold, (plaintiffs were not yet married at the time) in a northerly direction on Highway 23 in Plaquemines Parish. The highway consisted of two lanes and at the point where the accident occurred it was being resurfaced with an asphalt overlay of one and one-half inches thick. This work was being performed by the defendant companies under a contract with the highway department.

It was the practice of the construction crew to overlay one lane at a time but to finish a day’s work with both lanes being completed to the same point. On the day of the accident they completed the north bound lane for some distance southward from the point where the south bound lane had been completed when they were forced to stop because of some problem with the quality of the asphalt. The southern end of the overlay in the north bound lane was tapered down to the level of the original road surface but along the center of the highway the north bound lane was about an inch and a half higher than the south bound lane. The procedure employed by the construction crew was to place on the original surface a tacking compound which was essentially an oil to provide adhesion for the overlay of asphalt, and while the record is not clear as to extent of the oil in the vicinity when the crew shut down its operations there was apparently some oil in the area.

As plaintiff approached the scene from the south just before she reached the point where the overlay began in the north bound lane, she turned into the south bound lane, where she traveled for some distance, and then entered the north bound lane. In doing so, she crossed over the one and one-half inch rise of the new asphalt overlay, and after getting into the north bound lane on the new asphalt she began to skid, lost control of her automobile and eventually turned over on the right shoulder of the road coming to rest against a utility pole. All this took place in good weather at about 3:30 PM on November 22, 1974.

Defendants placed into evidence photographs of the highway approaching the scene of the accident and the scene itself. Some distance south of the asphalt overlay is a curve to the south east. Some distance before plaintiff reached that curve was a temporary highway warning sign reading “Fresh Oil.” This sign was followed shortly by a permanent highway sign showing the curve and the suggested speed of 40 miles per hour. In the curve was a second temporary warning sign reading “Low Shoulder.” After the road straightened to the north and before the asphalt overlay began in the north bound lane were two temporary warning signs mounted one over the other and reading “Bump” and “Uneven Center Line.” The photographs clearly show the gradual incline, although short, from the original surface onto the asphalt overlay in the north bound lane.

According to plaintiff, she was going about 45 miles per hour as she approached the curve and slowed down to 40 when she saw the first sign. She continued to decrease her speed as she passed the other signs but decided to avoid “going up' the bump” in the north bound lane by taking the south bound lane. She did not notice that the asphalt was tapered in her lane but was under the impression that it was a straight dropoff. She continued to slow down “until I thought I was going at a slow enough rate so that I could go in the north bound lane.” However, after all four of her wheels were on the north bound lane she started swerving, applied her brakes but could not get control of her car again as it swerved down the road, went off the shoulder and flipped over. Asked how fast she was going when she crossed into the north bound lane, she replied that she “couldn’t have been going very much more than 30 miles an hour.”

Her passenger, Lynn Shackelford, essentially corroborated her testimony.

The accident was investigated by a state policeman who testified that he measured 400 feet of skid marks from one tire and 342 feet of skid marks from the other. Over the objection of plaintiffs he was permitted to testify that he estimated plaintiff’s speed to be 80 miles per hour.

In this court plaintiffs argue that the trial judge erred in failing to find that the defendants breached their duty to provide adequate warnings of the condition of the road, particularly in that the “bump” sign was located too close to the south end of the new overlay so that plaintiff was justified in going around this bump. She maintains that the uneven surfaces of the two lanes was the ultimate cause of her vehicle going out of control. She insists she was not exceeding a safe speed and argues that the policeman’s estimate of her speed was inadmissible, it was wrongfully considered by the trial judge and it should be disregarded by this court. She also argues entitlement to recovery on the basis of strict liability arising out of LSA C.C. Arts. 2317 and 2322 as developed in Loescher v. Parr, 324 So.2d 441 (La.1976).

Regardless of what theory applies, it was plaintiff’s burden to prove either negligence on the part of defendants or that the highway was defective. Under a negligence approach plaintiff’s recovery would be barred by her own contributory negligence. Under a strict liability approach her recovery would be barred if the accident was due to her fault. The burden of proof of contributory negligence or victim fault was on defendants. Although the trial judge gave no reasons for his judgment he necessarily concluded either that plaintiff failed to carry her own burden of proof or that defendants carried theirs as to the said defenses. The appellate court will not reverse the trial court on this factual determination unless the record shows that such determination was clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.1975).

From our examination of the record we cannot conclude that the trial court was clearly wrong. The photographs graphically demonstrate that the temporary warning signs began far enough from the overlay to warn plaintiff of the approaching hazard and to place a duty on her to proceed with extreme caution. Her duty was to travel at a rate of speed which was reasonable under the circumstances and to operate her automobile in a reasonable manner. Had she done so this accident would never have occurred. She did not provide a satisfactory explanation for misjudging the tapered approach to the overlay as a straight drop-off and again misjudging the speed of her own vehicle when she went up on the overlay from the south to the north bound lane just before she lost control of her automobile. Whether the policeman’s testimony that she was driving 80 miles per hour was properly admitted or not there is a clear inference of excessive speed from the length of the skid marks her automobile left combined with the fact that her car turned over after getting on the shoulder and struck the utility pole with enough force to cause it to lean.

Having concluded that the judgment of the trial court was not clearly wrong, we affirm.

AFFIRMED.


author: GARRISON, Judge.

text:
    Richard L. FISHER v. CHILDS INVESTMENT COMPANY, INC. and James L. Childs.
    No. 11634.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 9, 1982.
    Rehearing Denied April 16, 1982.

      James 0. Manning, Metairie, for plaintiff-appellee.
    John H. Brooks, Gretna, for defendants-appellants.
    Before BOUTALL, GARRISON and KLIEBERT, JJ.
   GARRISON, Judge.

This is an appeal from a judgment of the district court in favor of the plaintiff, Richard L. Fisher, holding James R. Childs and Childs Investment Company solidarily liable on a promissory note in the amount of $7,553.39, plus 8% interest from September 27, 1977, attorney’s fees of 25% and costs. From that judgment, which we reverse, defendant appeals.

The promissory note sued on by plaintiff was executed as part of a sale of a then ongoing business known as “Bridge Circle Inn.” Bridge Circle Inn was a restaurant and bar owned and operated by Mr. Fisher. The sale was made pursuant to the Louisiana Bulk Sales Act. Shortly after confection of the sale, the purchaser discovered several problems with the Bridge Circle Inn. Some of the equipment was defective, a number of Mr. Fisher’s creditors had not been named in the list of creditors and 90% of the parking area was discovered not to belong to Mr. Fisher and hence was not transferred to the purchaser.

Fisher received the note as consideration for the sale. Accordingly, he is not a holder in due course but rather a simple holder for value against whom defenses may be raised.

Defendant pleaded four items of failure of consideration. Turning to that question, we note the following:

1. Mr. Childs was purchasing an ongoing business.
2. An integral part of that business was the parking facility and equipment.
3. The loss of substantially all of the parking space resulted in the failure of the business, and the equipment proved to be defective.
4. Mr. Childs only assumed the debts connected with creditors listed on the creditor’s list and in all other respects was warranted free and unencumbered property.
5. Shortly after sale, Mr. Childs discovered that the property was encumbered with debts to Magnolia Liquor Company, the Jefferson Music Company, Guaranty Bank and Trust Company, and outstanding taxes.

Examining the above listed factors which touch on almost every aspect of the business, we conclude that a failure of consideration has in fact occurred. Having so concluded, we pretermit discussion of appellant’s other arguments. We further find that the promissory note is void ab inition due to failure of consideration.

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

IT IS ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of the defendants, James R. Childs and Childs Investment Company, dismissing plaintiff’s case. All costs are to be borne by plaintiff.

REVERSED AND RENDERED.