author: HALL, Judge.

text:
    Patricia A. DAWKINS, Plaintiff-Appellant, v. Herbert SUMRALL, Administrator of the Department of Employment Security, State of Louisiana, and City of Shreveport, Defendants-Appellees.
    No. 15092-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 29, 1982.

      Ike F. Hawkins, Jr., Shreveport, for plaintiff-appellant.
    James A. McGraw, Legal Unit, Office of Employment Sec., Baton Rouge, for defendants-appellees.
    Before HALL, FRED W. JONES, Jr. and NORRIS, JJ.
   HALL, Judge.

Plaintiff, a former CETA worker, brought this suit to challenge a decision of a state labor department appeals referee, affirmed by the Board of Review, denying plaintiff’s request for unemployment compensation benefits. This decision was affirmed by the trial court, and plaintiff has appealed. We reverse.

The relevant facts are as follows: Plaintiff was assigned to do filing and general office work at the LSU Medical Center in Shreveport on January 15, 1981. Plaintiff and her supervisor had disagreements during plaintiff’s tenure. One concerned plaintiff’s desire to change the office filing system, which request was denied. At a second confrontation plaintiff voiced some resentment toward her supervisor and told the supervisor that “slavery went out with Abe Lincoln.” Shortly thereafter, plaintiff, unbeknownst to her employer, asked her CETA officer for a transfer; this request was also denied.

About two weeks after the start of her employment with LSU, plaintiff was called into her supervisor’s office where she was notified for the first time of her “bad attitude” and fired. Plaintiff sought unemployment compensation benefits. The agency found “... [T]here is no misconduct connected with the employment,” and granted plaintiff's request for benefits. Plaintiff’s employer appealed this determination to the appeals referee who, after making the above factual findings, characterized plaintiff’s actions as follows:

“The evidence in the present case shows the claimant, Ms. Dawkins, consciously conducted herself in a standard of behavior not expected of an employee and her conduct was substantially against the better interest of the employer. Under these circumstances, her discharge was for disqualifying misconduct and she is not entitled to benefits.”

On appeal plaintiff argues that the above facts do not warrant a finding of misconduct. Plaintiff maintains that she was fired because her supervisor did not like her.

Although our review is limited by LSA-R.S. 23:1634 to questions of law when the findings of fact below have been made in good faith as is the case here, this does not preclude our examination of the referee’s conclusions. We must accept the referee’s findings of fact, but not necessarily his opinion or ruling. Caldwell v. Gerace, 378 So.2d 1045 (La.App. 2d Cir.1979).

Therefore, the only issue before us is a legal one — whether the relevant facts support the referee’s finding that plaintiff’s personality clash with her supervisor constitutes misconduct so as to preclude her from receiving unemployment benefits.

LSA-R.S. 23:1601 provides that

“An individual shall be disqualified for benefits . . .
“(2) If the administrator finds that he has been discharged for misconduct connected with his employment .... ”

“Misconduct” has been defined to mean

“... an act of wanton or wilful disregard of the employer’s interest, a deliberate violation of the employer’s rules, a disregard of standards of behavior which the employer has the right to expect of his employee, or negligence in such degree or recurrence as to manifest culpability, wrongful intent, or evil design, or show an intentional and substantial disregard of the employer’s interest or of the employee’s duties and obligations to the employer. * * * ” Horns v. Brown, 243 La. 936, 148 So.2d 607, 609 (1963).

The question of misconduct is primarily factual; however the administrative decision must be supported by sufficient competent evidence and must meet “a threshold test of reasonableness.” Misconduct connotes “intentional wrongdoing.” Banks v. Administrator of Dept. of Employment Security, 393 So.2d 696 (La.1981). Additionally, LSA-R.S. 23:1061 is to be liberally construed in favor of finding that the employee is entitled to benefits. Vernon v. Seitz, 399 So.2d 723 (La.App. 1st Cir.1981).

We conclude, in light of the aforestated principles, that the decision of the appeals referee denying plaintiff benefits is erroneous as a matter of law. Although the evidence herein indicates a severe personality clash between plaintiff and her supervisor which resulted in the former’s termination, this fact, without more, does not justify a finding of “misconduct”. While such a personality conflict gives the employer reason for terminating the employee for the employer’s own purpose, this alone does not constitute

“... the kind of willful and deliberate misconduct that will disqualify the employee from receiving unemployment benefits as provided by law.” Simmons v. Gerace, 377 So.2d 407, 410 (La.App. 2d Cir.1979)

For the reasons assigned, the judgment appealed from is reversed and it is now ordered, adjudged and decreed that the Board of Review of the Division of Employment Security, Department of Labor, State of Louisiana, issue an order directing the payment to plaintiff of the unemployment compensation benefits to which she is entitled under the Louisiana Employment Security Law. The employer is cast for all costs.

Reversed and rendered.


source: Caselaw Access Project

author: MARVIN, Judge.

license: Public Domain

text:
    James Michael BRASHERS, et ux., Plaintiffs-Appellants, v. SHREVEPORT AMBULANCE SERVICE, INC., Defendant-Appellee.
    No. 15096-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 29, 1982.
    Rehearing Denied Jan. 14, 1983.

      Nelson A. Moak and Roy L. Brun, Shreveport, for plaintiffs-appellants.
    Sam N. Gregorio, Shreveport, for defendant-appellee.
    Before PRICE, MARVIN and FRED W. JONES, Jr., JJ.
   MARVIN, Judge.

In this action arising out of an alleged employment relationship, plaintiffs (Mr. and Mrs. Brashers) appeal a judgment against them on the defendant corporation’s reconventional demand for corporate funds allegedly converted by Mr. Brashers ($10,189) which is partially offset by the award in the principal demand for wages owed them by the corporation ($480).

Mrs. Brashers contends that she should have been awarded wages from December 1979 through September 1980 and statutory penalties and attorney fees.

Mr. Brashers contends that the trial court should have credited him with $14,000 for expenditures he made from his personal funds for the corporation instead of $4,000, that the trial court erred in admitting certain evidence against him and in failing to admit other evidence favoring him, and that the trial court erred in allowing some expenses claimed by the corporation to be assessed as costs.

We adopt the detailed reasons for judgment given by the trial court, which we here summarize, and, allowing some reduction in the costs assessed, we amend and affirm the judgment.

THE RELATIONSHIP

With Dr. Raul Cuestas as the principal stockholder, the corporation was chartered in December 1979 as a neonatal ambulance or transportation service and to transport cadavers for the Caddo Parish Coroner. Mr. Brashers was the only full time employee and served the corporation as president and general manager of the business. Other employees worked only part time as the need arose and all receipts from corporate services were placed in a petty cash fund out of which Mr. Brashers paid wages and other expenses of the business. Mrs. Brash-ers was not on the payroll of the corporation during the first 10 months of its existence, but she spent a great amount of time assisting her husband and other corporate employees in conducting the corporate business.

During Mr. Brashers’ association with the business, the corporate CPA counseled him and Dr. Cuestas that the petty cash fund should not be used in the manner in which Brashers was using it.

On October 1, 1980, the corporation became qualified and began operating as a full service ambulance company with an increased volume of calls and the acquisition of additional equipment. Mrs. Brash-ers was then hired by her husband and was thereafter paid as a full time employee on the payroll records of the corporation.

The dispute between these litigants arose after the corporate CPA assigned one of his associate accountants to the corporate office shortly before July 1, 1981, to organize and implement accounting procedures more in accord with good business practices. Mr. and Mrs. Brashers resigned their employment on July 8,1981, and shortly thereafter were charged by Dr. Cuestas with felony theft of corporate funds.

Mr. and Mrs. Brashers then brought the principal action for wages, for vacation pay, and for penalties and attorney fees. The corporation reconvened, alleging Mr. Brash-ers’ conversion to personal use of corporate funds.

MRS. BRASHERS’ DEMANDS

The trial judge found no employment relationship existed from December 1979 through September 1980. Dixie Brashers never complained during this period to anyone but her husband about not being paid for her work. The trial judge found it incredible that a person who believed she had a right to compensation would not complain to someone with more authority in the corporate structure if she had not received any compensation after months of performing work for the corporation. The trial court found that Mrs. Brashers’ explanation for not demanding that she be paid (because she knew the corporation had no funds to pay her) was contradicted by evidence showing that all other employees were paid regularly out of petty cash during this same period. The trial court resolved the credibility issue against the Brashers. The record supports these findings and we find no manifest error. Under these circumstances attorney fees and penalties were also properly denied.

MR. BRASHERS’ CONTENTIONS

Mr. Brashers first contends that the trial court erred by not considering his personal checks as evidence of expenditures for corporate purposes for which he should be allowed a set-off. The trial court correctly found that the face of a check does not conclusively prove anything concerning the expenditure without other corroboration or explanation. Although Mr. and Mrs. Brash-ers were apparently authorized to make purchases for the corporation, they failed to document their claimed purchases.

The trial court concluded that some of the checks clearly established a corporate expenditure because of the description of the payee, the explanation on the check, and the unlikelihood that such an expenditure would normally arise from a personal need. The court found these checks to be for a corporate expenditure.

Another group of checks, which were not as informative, were found to be substantially identifiable and the court inferred that they were for corporate purposes. The trial court found a third category of checks were not shown to be identifiable as corporate expenditures. This third group included checks for personal expenses and an insufficient explanation or no explanation at all was given as to the nature of these checks. This analysis and weighing of evidence by the trial court is supported by the record and we see no error.

Mr. Brashers also contends that the trial judge erred in admitting trip tickets of the ambulance service, business checks of the ambulance service written by Mr. Brashers, and deposit slips evidencing cash deposits made by Mr. Brashers into his personal checking account, totaling $10,284.56, into evidence as an expansion of the pleadings. We find that this evidence is relative to the allegations of wrongful conversion in the reconventional demand. This was not an expansion of the pleadings. If appellant felt he was prejudiced by this evidence he could have requested a continuance because of contended prejudice. CCP 1154. The trial court has much discretion in this area. Failure to seek a continuance constitutes a waiver. See Mouledous v. Poirier, 221 So.2d 291 (La.App. 4th Cir.1969). Under these circumstances, and, even if this complaint is reviewable on appeal, we find no error.

Mr. Brashers also contends the trial court erred in refusing to consider evidence of expenditures from petty cash for corporate expenditures. The trial court considered that Brashers made no record of the income or the expenditures to and from petty cash. Evidence of expenses must be compared to receipts or income to properly account for petty cash. Brashers testified that he never recorded receipts into petty cash. “I kept a running balance in my head ...” Because of Brashers’ admitted failure to maintain proper records, we find the trial court did not err in refusing to allow Brashers’ claim that the missing petty cash funds were expended by Brashers for the corporation.

Mr. Brashers lastly contends that it was error to assess as costs the fee of the expert witness and the costs of the preliminary examination in the district court criminal proceeding and discovery depositions. Ted Cook was accepted as an expert accounting witness, and his witness fee of $150 is considered reasonable. There is no error in this item of court cost.

The costs of the preliminary examination and the depositions, however, are another matter. Although providing generally for the taxing of costs, LRS 13:4533 does not allow the cost of discovery depositions that are not used at trial to be charged against the defendant. See Parish v. Bill Watson Ford, Inc., 354 So.2d 727 (La.App. 4th Cir.1978). The questioned depositions and preliminary examination were marked for identification but were not filed into evidence, as the trial court apparently assumed. We shall amend to disallow these items as costs.

The judgment is amended to delete costs of $275 for the preliminary examination and $180 for the deposition, and is in all other respects affirmed.

AMENDED and AFFIRMED.

      . Mr. Brashers asserted that the trial court erred:
      (1) in awarding judgment on defendant’s re-conventional demand by refusing to consider evidence of corporate expenditures by Mr. Brashers;
      (2) in computing the total of defendant’s recon-ventional demand award by awarding items numbered 11-14 in the trial court’s written opinion, which constituted an expansion of the pleadings; and
      (3)in taxing as costs a deposition of Mr. Brashers, a transcript of the preliminary examination and expert witness fees.

      . Probable cause was found for the prosecution on a felony theft charge in a preliminary examination in the district court. The district attorney, however, exercised his discretion to dismiss the prosecution. See CCrP 61, 691.


author: FRED W. JONES, Jr., Judge.

text:
    Claude J. GILMORE, Plaintiff-Appellee, v. Annie Renee Curry Gilmore WILLIAMS, Defendant-Appellant.
    No. 15099-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 29, 1982.

      Glenn F. Armstrong, Bossier City, for defendant-appellant.
    Johnston, Thornton, Dawson, Hunter & Feinberg, by Richard S. Feinberg, Shreveport, for plaintiff-appellee.
    Before PRICE, MARVIN and FRED W. JONES, Jr., JJ.
   FRED W. JONES, Jr., Judge.

A mother appeals a district court judgment changing the custody of her ten year old daughter to the child’s father.

Finding that the trial judge did not abuse his discretion in determining that this change of custody was in the best interest of the child, we affirm.

Claude Gilmore and Annie Gilmore (now Williams) were married in 1970. One child, Nicole, was born of this marriage in 1972. The parties were judicially separated in 1975 and custody of the minor child was awarded to the mother in an uncontested proceeding. A 1976 divorce judgment continued that custody in the mother.

This proceeding to change Nicole’s custody was instituted by the father in March 1982. Trial of the rule was held in May 1982.

Following her divorce from Gilmore, the defendant-in-rule was married to Roger Bleur in 1976. At the trial, Bleur testified that he divorced defendant-in-rule in 1981 on the ground of her adultery with Jim Williams. Defendant-in-rule (along with Nicole) lived with Williams for a year before their marriage in September 1981.

Mrs. Williams testified that, during the two year period prior to the trial, she changed her residence (with Nicole) some eight different times.

Gilmore also remarried, having wedded his present wife, Peggy, in 1976. At the time of the trial they were living in a large mobile home located near a lake outside of Vivian. Residing with them were Mrs. Gilmore’s two children by a prior marriage and a fifteen month old child born to the Gil-mores. Gilmore is a 100% disabled veteran of the Vietnam War, drawing a monthly pension of $1422.

Gilmore presented several witnesses who stated that Williams, Nicole’s stepfather, employed excessive force in disciplining the youngster and, during drinking bouts, used vulgar language and profanity in the child’s presence. Among those who testified to this effect were Emma Flaherty (Mrs. Williams’ sister) who resided in the Williams’ dwelling for three months in the latter part of 1981; Wendy Cross (Mrs. Flaherty’s daughter) who lived in the Williams’ home for a month when her mother was staying there; and Larry Bethney (Wendy’s boyfriend) who visited the Williams’ residence two or three times a week while Wendy was living there.

Gilmore stated that, when exercising visitation rights with Nicole, he often noticed bruises on her arms, legs and back. These contusions were also observed and testified to by Peggy Gilmore; Pauline Gilmore, Nicole’s paternal grandmother; Dindy Shelton, Nicole’s 12 year old cousin; and Michel Sullivan, Mrs. Gilmore’s 8 year old daughter. The latter two noticed the bruises when they were bathing with Nicole.

In refutation of the charges of abuse of Nicole by her stepfather, Mrs. Williams presented a number of witnesses who denied ever seeing Williams mistreat the child or use improper language in her presence.

In his oral reasons for judgment, the trial judge took cognizance of Mrs. Williams’ frequent change of residence and her living openly with Williams for a year prior to their marriage. Further, on the allegation that Williams abused Nicole, the trial judge concluded that the witnesses presented by Gilmore were either more credible than those testifying on behalf of Mrs. Williams or that the latter had no opportunity to observe the described incidents of mistreatment. Consequently, the trial court made the fact-finding that Williams used excessive force in disciplining Nicole, expressed himself in vulgar and profane language before the child, and drank alcoholic beverages to an excess in her presence. Based upon these findings, the trial judge concluded that Nicole’s best interest would be served by changing her custody from her mother to her father who was “willing and able to provide for her with a Christian home, a stable environment, and a loving home.”

The trial judge correctly recognized that the proper test to be applied in contests of this nature is “the best interest of the child.” La.Civil Code Art. 157; Bagents v. Bagents, 419 So.2d 460 (La.1982); Bordelon v. Bordelon, 390 So.2d 1325 (La.1980).

In child custody cases great weight is accorded by appellate courts to the trial judge’s determination with reference to the child’s best interest. Bordelon v. Bordelon, supra.

Acting within the perimeters of these guidelines, based upon our review of the record we do not find that the trial court abused its broad discretion in finding that the best interest of Nicole would be served by changing her custody from her mother to her father. As did the trial judge, we also consider as significant factors the unstable environment for Nicole resulting from her mother’s frequent change of residence; Williams’ employment of excessive force in disciplining the child, drinking alcoholic beverages to an excess in her presence, and directing profane and vulgar language at the youngster; and the fact that Mrs. Williams lived (with Nicole) in open concubinage with Williams for a year prior to their marriage.

For these reasons, we affirm the judgment of the district court, at appellant’s cost.


author: NOREIS, Judge.

text:
    SUCCESSION OF Donald Everett BOYENGA.
    No. 15102-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 29, 1982.
    Rehearing Denied Jan. 14, 1983.

      Richie & Richie by C. Vernon Richie, Shreveport, for plaintiff-appellant.
    Love, Rigby, Dehan, Love & McDaniel by Samuel P. Love, Jr., Shreveport, for defendant-appellee.
    Before HALL, FRED W. JONES, Jr. and NORRIS, JJ.
   NOREIS, Judge.

In this succession proceeding, the executrix appeals that portion of the trial court’s judgment awarding an attorney’s fee of 2lh% of the gross assets of this estate to the attorney designated by the testator.

On December 1, 1978, Donald Everett Boyenga executed a last will and testament in statutory form. This will was prepared by and executed before Samuel P. Love, an attorney at law and notary public in and for Caddo Parish, Louisiana. In this will, Dr. Boyenga’s wife, Dorothy Inge Boyenga, was named as testamentary executrix, and Mr. Love was named as attorney to represent the estate.

At some point in time prior to January 5, 1982, Dr. Boyenga decided to effect certain changes in this will, allegedly including the élimination of Mr. Love as the attorney for his succession. Dr. Boyenga and his wife scheduled an appointment with John A. Richie, an attorney in Shreveport, for January 5, 1982; and accompanied by a neighbor, they arrived at the offices of Richie & Richie. In the waiting room, Dr. Boyenga stated to an employee of the law firm in the presence of his wife and the neighbor that his purpose in seeing Mr. Richie was to change the attorney designation in his will. Dr. and Mrs. Boyenga then met with Mr. Richie and gave him the necessary information to effect the changes which they desired, and Dr. Boyenga again stated that he wished to change the designated attorney. During this conference, it was agreed that Mr. Richie would prepare the appropriate wills as well as the necessary documents for the adoption of Dr. Boyenga’s stepson. The wills were to be completed and executed within the next few days.

Dr. and Mrs. Boyenga left the office of Mr. Richie at approximately 1:30 p.m. after which they went home. Dr. Boyenga abruptly and unexpectedly died of a heart attack approximately two hours after leaving Mr. Richie’s office.

Thereafter, by letter dated January 19, 1982, from Mr. Richie, Mr. Love was asked to renounce any right that he might have to serve as the attorney for Dr. Boyenga’s succession. Mr. Love refused. As a result of this refusal, Mrs. Boyenga filed a petition for the probate of Dr. Boyenga’s December 1, 1978 will, to be confirmed as testamentary executrix, and for the removal of Mr. Love as the attorney designated to represent the estate. Mr. Love then answered the rule and filed a reconventional demand seeking a fee of 2V2% of the gross estate as compensation for services which he would otherwise have rendered to the estate in the event he was removed as the attorney for the estate.

Prior to the hearing on the rule, by agreement of the parties, the will was probated and Mrs. Boyenga was confirmed as testamentary executrix. Evidence was then presented on the rule solely relating to the issues of the removal of Mr. Love as the estate’s attorney and his demand for compensation. After hearing all of the evidence, the trial court took the matter under advisement, and in written reasons for judgment, removed Mr. Love as attorney for the succession on the basis that the executrix was not bound to accept his services and awarded him a fee of 2lh% of the gross assets of the succession. A judgment was signed in accordance with this ruling from which only Mrs. Boyenga appeals assigning the following errors:

1) The Trial Court erred in refusing to admit as evidence the testimony of certain: witnesses regarding Dr. Boyenga’s change of intent as to the designation of Mr. Love as the attorney for the succession;
2) The Trial Court erred in awarding Samuel P. Love, Jr., an unearned “attorney’s fee;” and
3) Assuming for the sake of argument that Samuel P. Love, Jr., was entitled to a fee, the Court erred in awarding a fee of two and one-half percent (2/4%) of the gross estate.

ASSIGNMENT OF ERROR NO. 1

At trial of this matter, Mrs. Boyen-ga sought to offer into evidence her testimony and the testimony of Mrs. Ruby Koy (the Boyengas’ neighbor), Elaine Robe (the receptionist for Richie & Richie), and John A. Richie that Dr. Boyenga had indicated to them orally an intent to remove Mr. Love as the attorney for his estate. When this testimony was offered, Mr. Love objected, the objection was sustained, and the testimony was made a part of the record as an offer of proof. Mrs. Boyenga’s counsel ably argues that the sustaining of the objection that this testimony was hearsay was erroneous because it falls within one of the exceptions to the hearsay rule; that is, for the purpose of proving the state of mind of Dr. Boyenga as well as his intent, motive and design. Conceding arguendo that the evidence sought to be admitted was admissible to prove the state of mind of Dr. Boyenga, we conclude that the failure of the trial court to consider this evidence is of no moment and was not erroneous in the sense that it alone would compel a different result in the decision of this case because we conclude that under the existing law and jurisprudence of this state that a testator may not orally revoke a prior designation of an attorney for his estate in a will.

Mere intent to revoke a will does not per se effect revocation because such intent must be implemented either by a method of revocation authorized by law or by intentional destruction of the instrument. Otherwise, the testator’s intent to adhere to the will is presumed. In Re Succession of Jones, 356 So.2d 80 (La.App. 1st Cir.1978). Clearly, this reasoning is applicable to testamentary dispositions. La.C.C. Art. 1692.

We conclude that the revocation of the designation of an attorney in a last will and testament is subject to the same formalities as those required for the revocation of a testamentary disposition. See La.C.C. Art. 1691.

This conclusion is clearly supported by the jurisprudential rule that a testator has the authority to appoint an attorney for the probate of his estate which is valid and binding on his heirs and successors. Rivet v. Battistella, 167 La. 766, 120 So. 289 (1929). In Rivet, the sole question presented for determination by the court was whether or not such a designation in a will is valid and binding on those who take under the will. In considering this issue, the court answered affirmatively and characterized the designation of the attorney as a condition imposed on the donations mortis causa.

In other words, the same law which confers upon a man the right to dispose of his property by last will and testament also confers upon him the right to designate an attorney to perform the legal services required by his succession and that designation becomes a condition of the legacies and of the executor’s appointment. Succession of Falgout, 279 So.2d 679 (La.1973). It therefore follows that the same law which confers the right to designate the attorney in the will must be adhered to in order to revoke that designation.

Because the designation of the attorney is a condition upon a testamentary disposition, it must be revoked in one of the forms prescribed for the revocation of testaments and must be clothed in the same formalities. Even though Dr. Boyenga may have intended to change the attorney designated in his earlier will and may have in fact taken affirmative steps to accomplish this change, because the change was not completed and accomplished in one of the forms prescribed for the revocation of a last will and testament, it was of no effect. Thus, at the time of the death of Dr. Boyen-ga, Mr. Love had an interest in the estate to the extent that he was privileged and obligated to handle the legal affairs of the estate and to be paid therefor.

ASSIGNMENT OF ERROR NO. 2

It is clear that under our existing jurisprudence, a testator has the right to designate in his last will and testament an attorney to represent his succession, which designation is valid and binding upon his executor, legatees and heirs. Rivet v. Battistella, supra. The right of the attorney named in the will to represent the succession and to be paid therefor must be recognized. Succession of Martin, 56 So.2d 176 (La.App.Orl.1952). The executor is powerless to deprive the attorney of his right to act as legal advisor to the succession without just cause. Succession of Falgout, supra; Succession of Rembert, 199 La. 743, 7 So.2d 40 (1942).

Once the testator exercises this right, neither the executor, heirs, legatees nor the courts can question the necessity or propriety of the designation, and the executor must abide by the lawful condition imposed by the decedent in his testament, unless facts exist which furnish adequate cause recognized by law for refusing to do so. Succession of Falgout, supra; Succession of Rembert, supra.

As stated in Succession of Zatarain, 138 So.2d 163 (La.App. 1st Cir.1962):

... we believe the views herein originally expressed clearly indicate our recognition and affirmation of the firmly settled principle that an attorney named by a testator to represent the testator’s executor or heirs enjoys an “irrevocable status” in that as an agent of the testator so designated in the testator’s will he may not be discharged from the mandate thusly conferred. We further believe that our initial remarks made it abundantly clear that such an appointment involved the duty, privilege and obligation to represent the executor and heirs of the testator until the testator’s estate is settled and the correlative right to compensation for such professional services.
We wish to make it clearly understood that the agency thusly established is irrevocable in the sense that it may not be cancelled or terminated by the executor or heirs of the testator without the consent of the attorney. [Emphasis added.]

While the cases indicate that the courts have had some difficulty in classifying the exact nature of the designation of an attorney in a will, it is settled that an attorney so named by a testator enjoys an irrevocable status in that he may not be discharged without his consent except for cause. It is further abundantly clear under the existing jurisprudence that such an appointment not only confers the privilege of representing the succession but also imposes the duty and obligation to represent the succession and/or executor, heirs and legatees and to complete the probate. Accompanying this duty and obligation is the correlative right to compensation for such professional services.

In the instant case the attorney designated in the will was removed by the lower court. Our review of the record indicates that on the date of the hearing Mr. Love was willing to fulfill his duties as attorney for the estate, and the evidence presented below is lacking for adequate legal cause to remove him. As in Succession of Falgout, supra, the court below was faced only with the issue of the “bare right” of the executor to discharge the attorney designate. Thus, the rule to remove Mr. Love should have been determined to lack merit and his right to represent Dr. Boyenga’s estate should have been recognized and enforced. However, Mr. Love has not appealed from the decision of the trial court removing him as attorney for the succession nor has he answered the appeal, albeit that removal was without cause. Thus, we are now precluded from reviewing the propriety of his removal since that portion of the judgment is now final. In short, Mr. Love has now been removed as attorney for the succession, and that removal is now “legal” because the removal is by a final judgment.

Thus, because of the posture of the case presented to us on appeal, the sole question for our determination is the propriety of the award of the fee to the attorney designate after his now final removal by the court. In essence, the attorney designate was awarded 21/2% of the gross assets of the estate as the fee which he would have earned had he not been removed as attorney for the succession. He does not contend nor does the record support a finding that he had earned any fee at the time of the hearing on the rule.

Mrs. Boyenga argues that the trial court erred in awarding the attorney designate the fee which he would have earned had he represented the succession contending that such award constitutes an “unearned fee” prohibited by the Code of Professional Responsibility. The crux of her argument is that Rivet v. Battistella, supra, has been effectively overruled by the Code of Professional Responsibility enacted subsequent to that decision, which has been determined to be a part of the substantive law of this state. Leenerts Farms, Inc., v. Rogers, et al., 421 So.2d 216 (La.1982); Saucier v. Hayes Dairy Products, Inc., 373 So.2d 102 (La.1979).

In Rivet, the testator died leaving a valid will which designated the plaintiff as attorney to settle his estate. The plaintiff tendered his services to the widow, heirs, legatees and executor under the will. They declined his services, employed other attorneys, and settled the estate without calling upon the plaintiff to render any services in connection therewith. Thereafter, plaintiff brought a suit to recover from them the amount of the fee to which he would have been entitled had the provisions of the will been carried out. The court there awarded him a fee of approximately 2Vh% of the assets of the succession which was clearly in the nature of an award of damages for the failure to allow him to represent and complete the succession. It is noteworthy that in Rivet, when the court awarded the fee to the designated attorney that all of the work had been completed in the succession by another attorney, and that the designated attorney had not been given an opportunity to undertake and complete the work.

However, in the instant case, it is unnecessary for us to decide the issue of whether an attorney designated in a will as attorney for the succession, who has not been judicially removed by a final judgment and who through no fault of his own has been prevented from representing the succession, may or may not recover a fee or damages where he has, in fact, performed no services for the succession. Here, we must conclude that because Mr. Love has been judicially removed as attorney for the succession by a court of competent jurisdiction by a judgment made final, because of his failure to appeal therefrom or answer Mrs. Boyenga’s appeal, and because he has admittedly performed no services for the succession, he is not entitled to recover a fee or damages based on the fee which he might have earned had he not been removed by the court. Under the facts and circumstances of this case, such an award would constitute an unearned fee clearly prohibited by the law of this state. La.C.P.R.D.R. 2-106 and Saucier v. Hayes Dairy Products, Inc., supra.

Accordingly, that portion of the trial court’s judgment in favor of Samuel P. Love, Jr., awarding him an attorney’s fee of 21/2% of the gross assets of this succession is reversed. In all other respects it is affirmed at the cost of appellee.

JUDGMENT AFFIRMED in part and REVERSED in part.

      . La.C.C. Art. 1692 provides:
      The act by which a testamentary disposition is revoked, must be made in one of the forms prescribed for testaments, and clothed with the same formalities.

      . La.C.C. Art. 1691 provides:
      The revocation of testaments by the act of the testator is express or tacit, general or particular.
      It is express when the testator has formally declared in writing that he revokes his testament, or that he revokes such a legacy or a particular disposition.
      It is tacit when it results from some other disposition of the testator, or from some act which supposes a change of will.
      It is general when all the dispositions of a testament are revoked.
      It is particular when it falls on some of the dispositions only, without touching the rest.
      However, in all cases, a legacy or disposition shall be deemed revoked in the event that the legatee has unlawfully taken the life of the testator, and said legacy or disposition shall be deemed not written.

      . Succession of Zatarain, supra, held that the designated attorney was granted a mandate terminable only with his consent which commenced rather than ended with the death of the testator. Succession of Feitel, supra, rejected the notion that the attorney’s interest is in the nature of a donation or a legacy as did Succession of Zatarain, supra. Succession of Pope, 230 La. 1049, 89 So.2d 894, 897 (1956), concluded that the designated attorney had a real interest but did not explain its nature. Roberts v. Cristina, 323 So.2d 888 (La.App. 4th Cir.1975), handled this interest as a bequest under the particular facts of that case.

      . Disciplinary Rule 2-106 of the Code of Professional Responsibility provides in part:
      (A) A lawyer shall not enter into an agreement for, charge, or collect an illegal or clearly excessive fee.

        (B) A fee is clearly excessive when, after a review of the facts, a lawyer of ordinary prudence would be left with a definite and firm conviction that the fee is in excess of a reasonable fee.
      Factors to be considered as guides in determining the reasonableness of a fee include the following:
      (1) The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly.
      (2) The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer.
      (3) The fee customarily charged in the locality for similar legal services.
      (4) The amount involved and the results obtained.
      (5) The time limitations imposed by the client or by the circumstances.
      (6) The nature and length of the professional relationship with the client.
      (7) The experience, reputation, and ability of the lawyer or lawyers performing the services.
      (8) Whether the fee is fixed or contingent. [Emphasis added.]


author: JASPER E. JONES, Judge.

text:
    Paul B. WILKINS, Plaintiff-Appellant, v. HOGAN DRILLING COMPANY, INC., Defendant-Appellee.
    No. 15104-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 29, 1982.

      Gaharan & Wilson by Joseph Wilson, Jena, for plaintiff-appellant.
    McKeithen, Wear, Ryland & Woodard by Russell Woodard, Columbia, for defendant-appellee.
    Before MARVIN, JASPER E. JONES and SEXTON, JJ.
   JASPER E. JONES, Judge.

The plaintiff, Paul B. Wilkins, appeals a judgment sustaining Hogan Drilling Company, Inc.’s exception of no cause of action and dismissing his action for specific performance of a contract or, alternatively, damages for breach of the contract. We affirm.

Appellant Wilkins makes two assignments of error on appeal. He contends the district judge erred in: 1) failing to consider the participation letter agreement to be a written agreement under which he was entitled to an interest in the G.W. Douglas No. 1 well or damages for the breach of the agreement; and 2) failing to allow him to amend his petition to state a cause of action.

When plaintiff brought this action defendant filed an exception of no cause of action. Plaintiff then filed an amending and supplemental petition which replaced virtually all of the allegations of the original petition. Defendant responded with another exception of no cause of action.

The amended petition alleges that the parties had entered into a letter agreement, prepared by defendant, under which plaintiff was to acquire a Vsth working interest in the initial wells to be drilled on nine “prospects.” The letter agreement was made a part of the amended petition. The nine “prospects” are set forth in Exhibit “A” attached to the letter agreement and the geographical area of each prospect is specifically described. The prospects range in size from one section to four sections. The agreement also gives plaintiff the option of participating in subsequent “additional” wells drilled on any of the prospects.

Plaintiff alleges that he complied with his obligations under the agreement by depositing $72,000.00 into an escrow account. Defendant was to receive Vsth of that amount when the initial well on any prospect was completed.

Plaintiff alleges that after some of the planned wells were drilled a problem developed with leasing the land for some of the other planned wells and, therefore, they could not be drilled. Plaintiff alleges that the parties then agreed to amend their agreement to substitute new prospects for those areas where there had been leasing problems. The amendment was not in writing.

Plaintiff alleges that subsequently an initial well was drilled on one of the substitute prospects and that the well was a dry hole for which plaintiff was invoiced for his portion of the costs. Plaintiff alleges that a second well was then drilled on the substitute prospect and that the second well is a producing well with a value in excess of $2,000,000.00. Plaintiff further alleges that defendant has refused to allow him to participate in the second well which became known as the G.W. Douglas No. 1 well.

Plaintiff demands specific performance of the agreement requiring Hogan to assign him a Vie (Vs of Hogan’s %) working interest in the G.W. Douglas No. 1 well. Alternatively, plaintiff demands damages in the amount of $200,000.00.

The defendant based both its exceptions of no cause of action on the lack of any written agreement between the parties as to the prospect on which the G.W. Douglas No. 1 well was drilled. The petition describes the substitute prospect as the NVfe of Section 13 Township 12 North, Range 3 East, Caldwell Parish, Louisiana, and this description is not contained within the geographical descriptions of any of the nine prospects set forth in the letter agreement.

Appellant contends through his first assignment of error that the district judge erred in sustaining the exception. In support of this contention appellant argues that he is entitled to recover on either of two theories, joint venture or mandate, under the written agreement.

The flaw in plaintiff’s analysis springs from the written agreement itself. Assuming that the agreement does create a joint venture or mandate, this is of no avail to plaintiff because the written terms of the agreement do not cover the location at which the G.W. Douglas No. 1 well was drilled. The written agreement covers the location of the G.W. Douglas No. 1 well only if the alleged verbal amendment to the written agreement is valid.

The transfer of an interest in a mineral right cannot be the subject of a verbal agreement and cannot be proved by parol evidence. Acadian Production Corp. of Louisiana v. Tennant, 222 La. 653, 63 So.2d 343 (1953).

Parol evidence cannot be used to prove title to any mineral right nor to prove any claim for or interest in the revenues from a mineral right. Hayes v. Muller, 245 La. 356, 158 So.2d 191 (1963); Little v. Haik, 246 La. 121, 163 So.2d 558 (1964); Guy Scroggins, Inc. v. Emerald Exploration, 401 So.2d 680 (La.App. 3d Cir.1981), writ denied, 404 So.2d 1257 (La.1981); LSA-C.C. arts. 2275, 2276; LSA-R.S. 31:18.

A verbal agreement of joint venture or partnership as to mineral rights cannot be proved and one cannot recover damages for the alleged breach of such an agreement. Slay v. Smith, 368 So.2d 1144 (La.App. 3d Cir.1979).

The above cited authorities require a holding that a written agreement as to mineral rights on certain specified “prospects” or tracts cannot be extended to include additional tracts by verbal amendment. Thus, even assuming that all of the factual allegations of the petition are true, see Hero Lands Company v. Texaco, Inc., 310 So.2d 93 (La.1975), it states no cause of action because it does not allege a written amendment to extend the agreement to the prospect where G.W. Douglas No. 1 is located.

Appellant’s first assignment of error is without merit.

Through his second assignment of error appellant contends that the district judge erred in not affording him an opportunity to amend his petition.

LSA-C.C.P. art. 934 generally requires that the plaintiff be allowed to amend his petition after a peremptory exception has been maintained if the general grounds for the exception may be cured by amendment. However, Article 934 does not require that the plaintiff be allowed an opportunity to speculate on unwarranted facts merely for the purpose of defeating the exception. Lyons v. Avondale Shipyards, Inc., 359 So.2d 1348 (La.App. 4th Cir.1978).

The district judge allowed plaintiff to amend his original petition after the defendant interposed its initial exception of no cause of action. The plaintiff made full use of the opportunity to amend and made numerous changes in the allegations of his petition. The defendant again interposed an exception of no cause of action which was properly maintained by the district judge. Appellant now demands still another opportunity to amend.

The initial amendment of the petition allowed by the district judge in response to the first exception of no cause of action fulfilled the requirements of Article 934. The first exception was obviously well founded for the same reasons that the present exception is well founded. Though the initial amendment was allowed before a judgment sustaining the exception it fully served and effectuated the purpose of Article 934. Allowing further amendments by plaintiff would merely be an invitation to plaintiff to engage in speculative pleading.

This assignment of error is without merit.

The judgment is AFFIRMED at appellant’s costs.

      . September 21, 1979
      Mr. Paul B. Wilkins
      Post Office Box 648
      Columbia, Louisiana 71418
      Re: 1979 Wilcox Drilling Program Caldwell, Winn, and LaSalle Parishes, Louisiana
      This Letter Agreement evidences agreement wherein Paul B. Wilkins as a Non-Operator, agrees to participate for a one-eighth Q/a) working interest with Hogan Drilling Company, Inc., as Operator, in the drilling of nine (9) Wilcox wells as follows:
      (1)For the sum of $72,000.00, payable into an escrow account at the Citizens Progressive Bank, Columbia, Louisiana, prior to October 5, 1979, Hogan agrees to assign to you, upon your request, without warranty of title, a one-eighth (Vs) working interest in the initial wells on the prospects listed in the attached Exhibit “A”. One-ninth (Vb) of the escrowed sum shall be released by the Citizen’s Progressive Bank after completion of Hogan’s obligations on each individual prospect as described herein.
      (2) For the above sum, Hogan agrees to furnish all leases, geological evaluation, drillsite title work, staking, permitting, surface damage cost, and turnkey drilling cost through logging to a depth of 2990 feet or through the objective formation as determined by Operator.
      (3) If upon completion of logging, a well is determined to be non-commercial, the well will be plugged and abandoned at no additional risk or cost to Non-Operators.
      (4) If, however, it is determined by Operator that the well is commercial and should be completed, all costs from that point forward shall be borne on a percentage of ownership basis. Completion costs will be invoiced initially on an estimated basis, payable within fifteen (15) days.
      (5) Non-Operators shall have the option of participating on any additional wells on the same geological prospect; however, there shall be no obligation to participate. In the event a Non-Operator elects non-participation in an additional well on the prospect, the non-participating interest shall revert to Hogan for all additional wells on the prospect. (6) It is expressly understood that the working interest conveyed herein is not for resale by Non-Operators without the express written consent of Operator. It is provided, however, that Operator shall not withhold consent arbitrarily and this provision shall not act to prevent the transfer of any or all of a Non-Operator’s interest to a separate entity of which Non-Operator has complete financial control.
      If the terms and provisions as set out above are agreeable to you, please sign both copies and return one to us.
      Sincerely,
      HOGAN DRILLING COMPANY, INC.
      BY:/s/Robert F. Meredith. Ill
      Robert F. Meredith, III
      ACCEPTED AND AGREED:
      PAUL B. WILKINS
      BY:/s/ Paul B. Wilkins
      DATE: 9/25/79

      . The leases on the alleged substitute tract were owned half by defendant and half by Lyons Petroleum.

      . At oral argument counsel for appellant candidly admitted-that there were no truthful allegations which could be made in an additional amendment to the petition that would remove the basis of defendant’s exception.


text:
    STATE of Louisiana, Appellee, v. Stewart MARSHALL, Appellant.
    No. 15105-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 29, 1982.
    Rehearing Denied Jan. 14, 1983.

      Samuel Thomas, Tallulah, and Captan Jack Wyly, Lake Providence, for appellant.
    William J. Guste, Jr., Atty. Gen., Baton Rouge, James David Caldwell, Dist. Atty., Tallulah, for appellee.
    Before HALL, FRED W. JONES, Jr. and NORRIS, JJ.
   HALL, Judge.

Defendant Stewart Marshall, the Chief of Police of the town of Lake Providence, was charged by bill of information with (1) violation of LSA-R.S. 14:134 (malfeasance in office) in that he intentionally performed a duty lawfully required of him as such officer in an unlawful manner; and (2) violation of LSA-R.S. 14:126.1 (false swearing for purpose of violating public health or safety) in that he made a false statement, report, or allegation concerning the commission of a crime for the purpose of depriving Reginald Davis of rights, privileges, or immunities secured by the United States Constitution and laws or by the Louisiana Constitution and laws. After trial by a six-member jury the defendant was convicted on both counts and was sentenced to three years at hard labor on each count to run concurrently. Defendant appealed from the convictions and sentences, making 11 assignments of error.

Facts

The alleged false statements giving rise to the charges in this case were made by defendant in an unsworn “affidavit” and orally in the course of obtaining a warrant from the mayor of Lake Providence for the arrest of Reginald Davis on a charge of disturbing the peace at Lake Providence Junior High School in violation of a town ordinance.

The testimony of the state’s witnesses discloses the following facts and events.

Defendant, Stewart Marshall, is the elected police chief of the town of Lake Providence and was serving in that capacity on April 1,1981. On that date Reginald Davis, a Tallulah police officer whose wife was a school teacher at the Lake Providence Junior High School, received several telephone calls during the morning at his home regarding his wife’s activities. In one of the calls a female caller told Davis he could find his wife and the principal at a motel in Lake Providence. Davis called his wife at school and asked her to come home to discuss their marital problems. When Mrs. Davis refused to come home Davis said he was going to come to the school and she asked him not to do that. Mrs. Davis was upset by the call and advised the principal of the school about the call and that she was afraid Mr. Davis would come to the school. The principal was aware that Davis had accused his wife of having affairs with the principal and other men at the school and connected with the school system.

Davis decided to drive to Lake Providence to check on his wife and first drove by the school where he saw his wife’s car and the principal’s car parked. He went into the school building and proceeded to go toward his wife’s classroom without first getting permission from the principal in accordance with school policy. By this time the school principal, Mr. Lane, had been made aware that Davis was in the school building and he made a call to the Lake Providence police. While Lane was on the telephone Davis, after learning that his wife was not in her classroom, came into the principal’s office and overheard Lane telling the police that the situation was critical and to send a police officer. Davis inquired as to his wife’s whereabouts and inquired more than once if she was in the principal’s office. Davis apparently satisfied himself that his wife was not in the principal’s office and left the school without further incident.

After getting a message from the police dispatcher that the principal of the school had requested that a police officer come to the school, Officers White and Greer of the Lake Providence Police Department went to the school and investigated the incident. By the time they got to the school Davis had gone and the officers interviewed the principal, Mrs. Davis, and other school personnel. They were told of Davis’s visit to the school and were told by the principal that he was afraid and frightened and that the man seemed to be violent. Mrs. Davis told the officers she was sure Davis had a gun because he carries a gun all the time. They were also told that Davis had not used any loud, boisterous, or obscene language or otherwise caused a disturbance. Both Lane and Mrs. Davis said they did not want to file any charges. Lane requested that the officers contact Davis and tell him not to come back to the school and that they contact the Tallulah Police Department about the incident. The officers left the school and when they got back to the police department, had a telephone call from Davis. Davis told Officer White that he had been to the school and went directly to his wife’s classroom, that his wife was having an affair with the principal, and that he had been watching them all morning. He said he would not return to the school and was told by the officer that if he had a complaint he should report it to the school authorities.

Chief Marshall also got the report from the police dispatcher and went to the school, arriving after Officers White and Greer had left, and he conducted his own investigation. The events of the morning were related to him and the principal told him that he had reason to fear Davis because of what he was saying, that he feared Davis might have a gun, that something needed to be done and the principal told the chief to ask Davis not to come back to the school. The school personnel were not sure whether Davis had a gun because he was dressed in army fatigues with a loose fitting shirt that was not tucked in.

After leaving the school Chief Marshall called Officer White and asked her to prepare an affidavit for the purpose of securing a warrant from the mayor for the arrest of Davis on a charge of disturbing the peace. Officer White filled out an affidavit form which recited that Reginald Davis “did violate Ordinance No. DISTURBING THE PEACE (LAKE PROVIDENCE JUNIOR HIGH SCHOOL)”, followed by the following factual information:

“April 1, 1981 Time 9:13 AM Reginald Davis enter the Lake Providence Junior High School, and went directly to his wife (Erma Davis) classroom. Without the principal permission, and return to Principal Office (Mr. Theodore Lane) and ask if his wife (Erma Davis) was in Mr. Lane office.”

Although the affidavit form was typed up with the names of Officers Greer and White as deponents, they declined to sign the affidavit because they did not personally witness the events and did not believe Davis had disturbed the peace. Chief Marshall had Officer White write the chief’s name at the top of the affidavit and then Chief Marshall and Officer White went to see the mayor, taking with them the affidavit and a warrant of arrest which had previously been signed by the mayor in blank and had been filled out by Officer White.

Officer White testified that Marshall told the mayor “I’m going to arrest me a Tallu-lah policeman” and “he has been out to the school raising sand with a shotgun”. Mayor Jackson, a defense witness, testified Chief Marshall told him that there was a man out at the school “raising hell” but that the chief did not mention the man having a gun. Chief Marshall testified that he told the mayor that they (the people at the school) think he had a gun, meaning a pistol. The mayor signed the affidavit form, but as previously mentioned the affidavit was not signed or sworn to by either Chief Marshall or the police officers.

The Tallulah Police Department was advised of the issuance of the warrant and Damon Williams, a state trooper who was acting as chief of police of Tallulah, came to Chief Marshall’s office. Williams tried to talk Marshall out of executing the warrant but was unable to do so and Marshall declined to accompany Williams out to the school so that Williams could make his own investigation.

Davis was arrested and booked at the Tallulah Police Department. He was tried in the Lake Providence Mayor’s Court on the charge of disturbing the peace and was convicted and fined $26. His conviction was reversed on an appeal to the district court.

Chief Williams requested the state police to investigate the incident and an investigation was conducted by State Trooper Lester. On his complaint and report the bill of information against defendant Marshall was filed by the district attorney.

Assignments of Error

Among defendant’s several assignments of error is the contention that the evidence is constitutionally insufficient to support a finding that the state proved beyond a reasonable doubt each essential element of the crimes charged under the standard enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Under the Jackson standard the appropriate question is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could conclude that the state proved the essential elements of the crime beyond a reasonable doubt. State v. Morris, 414 So.2d 320 (La.1982). We find merit in this assignment of error as to both crimes charged, mandating reversal of the convictions.

To support the conviction for violation of LSA-R.S. 14:126.1 the state was required to prove beyond a reasonable doubt the following essential elements of the crime: (1) that a statement was made by the defendant; (2) that the statement was false; (3) that the defendant knew or had reason to believe the statement or a material part thereof was false; (4) that the statement concerned the commission of a crime; (5) that the statement was made to deprive a person of a right, privilege or immunity secured by the United States Constitution and laws or by the Louisiana Constitution and laws; (6) that the statement was made to an official or agency of the state or any parish, city, or political subdivision thereof; and (7) the statement was made with the intent to cause an investigation of or any other action to be taken as a result thereof.

Viewing the evidence in the light most favorable to the prosecution, it is our judgment that a rational trier of fact could not have concluded beyond a reasonable doubt that the statements made by defendant were false, or that the defendant knew or had reason to believe the statements were false, or that the statements concerned a crime.

Defendant’s statements to the mayor, contained in the “affidavit” and made orally, considered in the light of the information which had been furnished to defendant by persons at the school who had firsthand knowledge of the events, while perhaps exaggerated and to some extent with little foundation, cannot be said to be wholly false or to have been made with knowledge that they were wholly false.

The factual recitations in the “affidavit” were true, as conceded by all the state witnesses. The allegation that Davis violated the municipal ordinance on disturbing the peace amounted at most to an erroneous legal conclusion rather than a false statement of fact. The statement that Davis was “raising hell” or “raising sand”, although perhaps an exaggeration, cannot be regarded as wholly false in view of the facts testified to by the state’s witnesses concerning the phone call by Davis to his wife, the accusations made by him, his coming to the school during school hours for the admitted purpose of discussing the matter with his wife over her objection, his going to her room without checking with the principal, his questioning of the principal’s statement that his wife was not in the principal’s office, and the alarmed and frightened reaction of the principal and other school personnel to Davis’s actions, however overtly passive they may have been. The statement that Davis had a gun may have been false (Davis testified at trial that he did not have a gun with him), but was supported by Mrs. Davis’s statement to the principal and to the police officers that Davis “always” carried a gun and the principal’s expressed fear that Davis had a gun.

We conclude that the evidence, viewed in the light most favorable to the prosecution, is not sufficient to lead a reasonable trier of fact to the conclusion beyond a reasonable doubt that the statements made by the defendant were false and were made with the knowledge that they were false. To the contrary, the evidence presented by the prosecution establishes that there was some basis for the statements in the information furnished to defendant in his investigation.

We further conclude that the state failed to prove that the alleged false statements concerned the commission of a crime. LSA-R.S. 14:126.1 prohibits the making of a false statement, report or allegation “concerning the commission of a crime.” The alleged false statements the accused in this case is charged with making concern the violation of a municipal ordinance. The violation of a municipal ordinance is not a “crime” as that term is defined in Title 14.

LSA-R.S. 14:7 provides:

“A crime is that conduct which is defined as criminal in this Code, or in other acts of the legislature, or in the constitution of this state.”

The comment following that section reads:

“This article makes it clear that the Code continues the tradition that the Louisiana criminal law is purely statutory, there being no other crimes than those defined in the Code or other statutes of the state. Crimes Act of 1805; State v. Robinson, 143 La. 543, 78 So. 933 (1918). It is intended to exclude from the designation ‘crime’ ail offenders [sic — probably should be “offenses”] denounced in municipal ordinances." (Emphasis supplied).

In holding that evidence of convictions for municipal offenses was not admissible under LSA-R.S. 15:495 to impeach a witness’s credibility, the Supreme Court in State v. Ramos, 390 So.2d 1262 (La.1980) stated:

“A municipal offense is not a crime within the meaning of La.R.S. 15:495, which provides that ‘[e]vidence of conviction of crime’ is admissible for impeachment of a witness’s credibility under prescribed circumstances. Crime is defined in La.R.S. 14:7 as ‘that conduct which is defined as criminal in this Code, or in other acts of the legislature, or in the constitution of this state.’ It was intended to exclude from the designation ‘crime’ all offenses established by municipal ordinances. See Reporter’s comment, L.S.A.R.S. 14:7....”

City of New Orleans v. Adjmi, 249 La. 346, 186 So.2d 616 (1966) also held that violations of municipal ordinances are not regarded as crimes. The court held:

“The authorities which we have cited above conclusively show that this court consistently for many years held that violations of municipal ordinances are not to be regarded as ‘crimes’ in the strict sense in which the term is used in the Constitution and the criminal statutes, .... ”

In a civil suit for damages for wrongful arrest, Roberts v. American Employers Ins. Co., Boston, Mass., 221 So.2d 550 (La.App.3d Cir.1969), it was held:

“Under the authorities cited above, the violation of the municipal ordinance of the City of Jennings, relative to disturbing the peace, was not a ‘crime’ within the intendment of our criminal statutes in effect at the time of the incident in question on December 28, 1966.”

Article 933 of the Code of Criminal Procedure defines an “offense” as including both a felony and a misdemeanor, and “misdemeanor” is defined as including the violation of an ordinance providing a penal sanction. These provisions of the Code of Criminal Procedure do not, however, have the effect of broadening the definition of “crime” as that term is used in Title 14, the Criminal Code, so as to include within its meaning the violation of a municipal ordinance.

It follows, therefore, that the state failed to prove an essential element of the crime charged, that is, that the false statements allegedly made by the defendant concerned “the commission of a crime.”

To support a conviction of a violation of LSA-R.S. 14:134 the state was required to prove beyond a reasonable doubt that the defendant was a public officer and intentionally performed a duty lawfully required of him in an unlawful manner. In this case the charge of unlawful performance of a duty is grounded on defendant’s alleged performance of his duty as chief of police in violation of LSA-R.S. 14:126.1. Since we have concluded that the state failed to prove that defendant was guilty of the unlawful act charged, it follows that the state has failed to prove that defendant performed a duty required of him in an unlawful manner. Defendant’s conduct in the performance of his official duties, albeit clearly substandard, was not proven to be unlawful. The conviction on the charge of malfeasance in office must also be set aside.

Decree

Accordingly, and for the reasons assigned, the defendant’s convictions and sentences on both charges are reversed and set aside.

      . LSA-R.S. 14:134:
      “Malfeasance in office is committed when any public officer or public employee shall:
      “(1) Intentionally refuse or fail to perform any duty lawfully required of him, as such officer or employee; or

        “(2) Intentionally perform any such duty in an unlawful manner; or
      “(3) Knowingly permit any other public officer or public employee, under his authority, to intentionally refuse or fail to perform any duty lawfully required of him, or to perform any such duty in an unlawful manner.
      “Any duty lawfully required of a public officer or public employee when delegated by him to a public officer or public employee shall be deemed to be a lawful duty of such public officer or employee. The delegation of such lawful duty shall not relieve the public officer or employee of his lawful duty.
      “Whoever commits the crime of malfeasance in office shall be imprisoned for not more than five years with or without hard labor or shall be fined not more than five thousand dollars or both.”

      . LSA-R.S. 14:126.1:
      “No person shall make a false statement, report or allegation concerning the commission of a crime for the purpose of violating, disrupting, interfering with or endangering the public health or safety, or to deprive any person or persons of any right, privilege or immunity secured by the United States Constitution and laws, or cause such false statements or report to be made to any official or agency of the state or any parish, city or political subdivision thereof, or to any judicial, executive or legislative body or subdivision thereof within this state, knowing or having reason to believe the same or any material part thereof to be false and with the intent to cause an investigation of or any other action to be taken as a result thereof.
      “Any person or persons convicted of violating the provisions of this Section shall be punished by imprisonment for not less than one year nor more than five years, with or without hard labor, or by a fine of not less than one hundred dollars nor more than one thousand dollars, or by both such fine and imprisonment.”

      . The title to Section 126.1 is misleading insofar as it describes the crime as “false swearing” because the statute does not require that the prohibited false statement be made under oath or affirmation. Compare LSA-R.S. 14:125 (false swearing) and LSA-R.S. 14:126 (inconsistent statements; false swearing). It is interesting to note that Section 126.1 was added to the Criminal Code by Act 81 of 1960, as part of a package of legislation designed to inhibit certain desegregation activities. See 21 La.L.Rev. 85 (1960-1961). See also State v. Goldfinch, 241 La. 958, 132 So.2d 860 (1961). Numerous additions and amendments to the Criminal Code were made, with severe penalties imposed for violation of the new and expanded crimes. Section 126.1 is inarticulately drafted, and when read with a companion section added by Act 68 of 1960, Section 126.2, it can be questioned whether it was intended that the language “for the purpose of violating ... the public health or safety” and “to deprive any person ... of any right ... secured by the United States Constitution” refer to the “commission of a crime” for that purpose or the making of “a false statement” for that purpose. Our research, including use of the Westlaw computer, does not reveal a reported decision of any prosecution under Section 126.1 since its enactment.

      . The town ordinance on disturbing the peace generally tracks the articles of the Louisiana Criminal Code on disturbing the peace, LSA-R.S. 14:103 and 103.1, as they read prior to the repeal of subsection A(7) of Section 103 in 1979 after that subsection was declared unconstitutional in State v. Ganch, 263 La. 251, 268 So.2d 214 (1972). Subsection A(7) of the town ordinance includes within the definition of disturbing the peace the “[c]ommission of any other act in such a manner as to unreasonably disturb or alarm the public.” Presumably Davis was charged under this subsection since his conduct was not of the nature described specifically in any of the other subsections.


author: BYRNES, Judge.

text:
    Rosemary MARTIN v. ROLLINS SERVICES INC. and XYZ Insurance Co.
    No. CA 0043.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 8, 1982.

      Garner & Munoz, John G. Munoz, Dan C. Garner, New Orleans, for plaintiff-appellee.
    Jones, Walker, Waechter, Poitevent, Carrere & Denegre, Robert Henry Sarpy, Jr., Earl A. Bridges, Jr., New Orleans, for defendant-appellant.
    Before REDMANN, BARRY and BYRNES, JJ.
   BYRNES, Judge.

In this workmen’s compensation case appellant, Rollins Services Inc., seeks reversal of a District Court judgment granting ap-pellee, Rosemary Martin, death benefits in the amount of $51.40 per week for life or until remarriage. We affirm in part and amend in part.

Appellee was the common law wife of Gerald Cerf, the deceased. At the time of his death Cerf was employed by Rollins Services Inc. His duties consisted of cleaning and maintaining the rest rooms and shelters at the Audubon Park Zoo in New Orleans. He worked from approximately 7 A.M. to approximately 3:30 P.M. daily. In the evenings Cerf and the appellee cleaned the administration building at the park and he occasionally buffed floors at the Ramada Inn in the French Quarter.

On May 29,1979 Cerf worked at the Park all morning, presumably engaged in his usual work activity. At about noon he went to Rollins’ office to pick up a pay check. He appeared normal, but complained of a headache. When the appellee returned home at approximately 3:45 she saw the air conditioned van which Rollins supplied to Cerf parked at a peculiar angle in front of the house. She saw Cerf bent over the wheel, but assumed he was taking a mileage reading from the odometer as required by Rollins. Approximately one half hour later a neighbor’s child knocked on the appellee’s door and told her something was wrong with Cerf. She went to the van and discovered that Cerf was unconscious. He was taken by ambulance to Charity Hospital where he was diagnosed as suffering from heat stroke. He died the following night, never having regained consciousness. While no one knows with certainty what Cerf did from the time he picked up his pay check at noon until he was found slumped over the wheel of his van at approximately 3:45 that afternoon it is reasonable to conclude that he spent the time finishing up the work he had started that morning.

To recover workmen’s compensation benefits in Louisiana a claimant must prove that the injury for which benefits are sought was sustained in an accident arising out of and in the course and scope of his employment. La.R.S. 23:1031. Heat stroke has been held to be a compensable injury in Louisiana. Warren v. Town of Winfield, 38 So.2d 171 (La.App. 2nd Cir.1949). Appellant does not dispute the lower court’s finding that Cerf’s injury fits the definition of accident set forth in La.R.S. 23:1021(1), nor does it contest the finding that the injury was suffered in the course and scope of Cerf’s employment. The issues they raise on appeal centers on the sufficiency of the evidence that Cerf died of heat stroke and the existence of a causal connection between Cerf’s employment and his injury.

As in all civil actions the plaintiff in a workmen’s compensation case must establish causation by a preponderance of the evidence. Prim v. City of Shreveport, 297 So.2d 421 (La.1974); Wyman v. West Jefferson General Hospital, 416 So.2d 606 (La.App. 5th Cir.1982). This burden is met when the evidence, taken as a whole, shows that a causal connection between the employment activity and the injury is more probable than not. Jordan v. Travelers Insurance Co., 257 La. 995, 245 So.2d 151 (1971); Hall v. Great Atlantic and Pacific Tea Co. Inc., 297 So.2d 527 (La.App. 4th Cir.1974). It is not necessary to show that the injury was caused by unusual activities of the employee or that those activities were the exclusive cause of the accident. It is only necessary to show that the death or disability was caused or precipitated by the employee’s usual and customary activities or other factors directly connected with his employment. Ferguson v. H.D.E. Inc., 270 So.2d 867 (La.1972). Nor is it required that the claimant establish the exact cause of the injury in order to recover benefits; it is only necessary to show that somehow the work caused the accident. Lucas v. Insurance Company of North America, 342 So.2d 591 (La.1977). Malone & Johnson Workmens Compensation Sec. 252 P. 547 (2nd. ed. 1980).

In certain situations the plaintiff is aided in meeting his burden of proof by a presumption. That presumption is that if an otherwise healthy worker is injured by an accident at work it is presumed that the work activity caused the injury where medical testimony establishes a reasonable possibility of such a connection. Allor v. Beldon Corp., 393 So.2d 1233 (La.1981); Bertrand v. Coal Operators Casualty Co., 253 La. 1115, 221 So.2d 816 (1969), Malone & Johnson, Workmens Compensation; section 259, Page 572-73 (2nd. ed. 1980). When applicable, this presumption is not conclusive, but shifts the burden to the defendant to produce evidence sufficient to rebut it. In this case the appellee established that Cerf was healthy prior to his death. Thus the presumption of causation referred to above is applicable in this case.

The evidence relative to causation consisted entirely of the testimony of the following doctors: Dr. Jane Victoria Hoare, the senior resident in internal medicine and assistant chief ”esident for all of Charity Hospital at the time of Cerf’s admission. She supervised Mr. Cerf’s diagnosis and treatment at Charity; Dr. Ronald Guy, a second year resident when Mr. Cerf was admitted, and the doctor who made the initial diagnosis of heat stroke. It was Dr. Guy who called in Dr. Hoare to consult on the case; Dr. Richard Green, a practicing physician who was Board Certified at the time of Cerf’s injury and had been asked by Rollins to review the medical records in the case and give an opinion as to the cause of death; and Dr. Richard McConnell, a specialist in emergency room medicine who reviewed the medical records and depositions of the other three Doctors and gave his opinion as to the cause of death. Except for Dr. McConnell, the testimony of all the Doctors was by deposition.

Doctors Hoare and Guy, who actually examined and treated Mr. Cerf, were of the opinion that he had died of complications resulting from heat stroke. Dr. Green examined the records from Charity Hospital but did not consult the depositions of Doctors Guy and Hoare, which explained the basis for their diagnosis. He was of the opinion that heat stroke was not the cause of death. He relied on the low ambient temperature and humidity on the date of the injury and the nature of Cerf’s work activity as support for his negative diagnosis of heat stroke. He felt that the symptoms Cerf exhibited were more likely caused by a stroke, head injury, infection or even cancer. However, he acknowledged that Mr. Cerf’s symptoms were also consistent with the diagnosis of heat stroke; although he clearly felt that, as a practical matter, the environmental factors referred to above ruled that diagnosis out. Dr. McConnell was of the opinion that there was not adequate proof to support a diagnosis of heat stroke. He and Dr. Green both speculated that other problems such as infections, stroke or head injury could exhibit similar symptoms. However, both admitted that the treating physicians at Charity Hospital, who had the opportunity to actually examine Mr. Cerf, were in a better position to accurately evaluate his condition.

On appeal Rollins maintains that the trial court erred in giving more weight to the testimony of Doctors Guy and Hoare than to that of Doctors Green and McConnell. We do not agree. When the opinion of medical experts differ, great weight is usually given to the opinion of the treating physician. Champagne v. Southwest Industrial Contractors, 343 So.2d 1210 (La.App. 4th Cir.1977). Moreover, the diagnosis and opinions of the treating physicians are entitled to more weight than that of physicians who examined the patient only for the purposes of consultation and litigation. Schouest v. J. Ray McDermott and Co. Inc., 411 So.2d 1042 (La.1982). This is especially true where, as here, the physicians consulted for litigation do not even have the opportunity to examine the patient, but must base their opinion on medical records alone. In the present case, Doctors Green and McConnell did not categorically rule out heat stroke, but only expressed the opinion that, under the circumstances, other diagnoses were more likely. Having reviewed the medical evidence presented by both sides we cannot say that the trial court was clearly wrong in concluding that Cerf’s death was caused by complications arising from heat stroke.

We further conclude that the appellant failed to adequately rebut the presumption that Cerf’s work activity caused his death. While all the doctors agreed that a person doing the type of work Cerf performed in a climate similar to that on the day of his injury would not normally suffer a heat stroke, the two physicians who actually observed and treated Cerf were both of the opinion that he nonetheless suffered heat stroke and that this was the cause of his death. No evidence was offered by the appellant which would support the other causes of death put forward by Doctors Green and McConnell. The trial court made a factual determination that heat stroke was the cause of death and that there was a sufficient causal connection between Cerf’s job activity and the heat stroke to entitle his common law widow to death benefits. Absent manifest error this court will not disturb reasonable inferences of fact made by the trial court merely because another result might also be reasonable. Champman v. Beldon Corp., 414 So.2d 1283 (La.App. 3rd Cir.1982). Accordingly, we affirm the trial court’s ruling that the heat stroke which killed Cerf arose out of his employment for Rollins.

Appellant has also assigned as error the trial court’s failure to state that the appellee would lose her rights to death benefits should she lose her status as a dependent. The trial court awarded benefits to the appellee for life or until remarriage. This is the correct standard to apply in the case of a surviving spouse. However, ap-pellee is not the lawful surviving spouse of Cerf, she was his common law wife or, to use the Louisiana terminology, his concubine. The right of concubines to recover death benefits was established by the Supreme Court in Henderson v. Travelers Insurance Co., 354 So.2d 1031 (La.1978). That right appears to have been based on the court’s classification of concubines as “other dependent members of the family”, a category of claimants who are entitled to death benefits under R.S. 23:1232(8). If appellee is entitled to benefits as an “other dependent,” her entitlement to death benefits continues “as long as [her] dependency shall exist or shall terminate upon [her] death”, R.S. 23:1233, and would not terminate automatically on her “remarriage.” The wording of R.S. 23:1233 would thus appear to create the questionable result that a concubine, as an “other dependent”, could marry a man unable to support her yet continue to receive benefits, while a lawful wife would lose her benefits if she married such a man. The facts in our case, however, are that the concubine is not alleged either to have married or to have ceased to be dependent, and it is therefore not necessary at this time to decide which circumstances will terminate her benefits. Henderson’s decree did not decide that question, and we deem it inappropriate to decide it in this case. Accordingly the judgment is hereby amended to delete termination on remarriage and to read, instead, that the award shall continue until terminated by law.

Finally we address the appellee’s contention that she should have been awarded statutory penalties and attorney’s fees as a consequence of Rollins’ wilfull failure to pay compensation. R.S. 23:1201.2 provides for penalties and attorney’s fees where an employer has arbitrarily, capriciously, or without probable cause failed to pay compensation. However, where the refusal is based on a good faith dispute as to the occurrence of the accident or its’ causal connection with employment activity an award of penalties and attorney’s fees is not justified. Dupre v. Sterling Plate Glass and Paint Co. Inc., 344 So.2d 1060 (La.App. 1st Cir.1977). McFarland v. Crowley Indus tries, 339 So.2d 861 (La.App. 3rd Cir.1976). Moreover, the trial court’s determination of the right to penalties and attorney’s fees is essentially a fact question and should not be reversed unless a review of the record indicates that the refusal was clearly wrong. Collins v. McDonald’s Corp., 411 So.2d 611 (La.App. 1st Cir.1982). Having reviewed the record we find that there was a genuine dispute as to the cause of death and the relationship between that cause and the decedent’s work activity. Thus we affirm the trial court’s denial of penalties and attorney’s fees.

The judgment of the lower court is hereby affirmed as to the appellee’s right to death benefits, and amended to reflect that those benefits will terminate as provided by R.S. 23:1233.

All costs of this appeal are to be borne by the appellant.

AFFIRMED IN PART AND AMENDED IN PART.


author: GRISBAUM, Judge.

text:
    Otto KALTENBACHER, Husband of/and Emma Kaltenbacher v. JEFFERSON PARISH SERVICE DISTRICT # 2 d/b/a East Jefferson General.
    No. 5-316.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 9, 1982.
    Rehearing Denied Jan. 17, 1983.
    Amberg & Whittington, Ltd., Joseph B. Amberg, Jr., Harahan, for plaintiffs-appellants.
    Mmahat, Gagliano, Duffy & Giordano, Lucas J. Giordano, New Orleans, for defendant-appellee.
    Before BOUTALL, GAUDIN and GRISBAUM, JJ.
   GRISBAUM, Judge.

In this medical malpractice case, plaintiff appeals from the trial court’s sustaining of a plea of prescription. We must determine what is considered as “issuance” of the medical review panel opinion for purposes of commencing (again) the ¡prescription on a medical malpractice claim under La.R.S. 40:1299.47 A. We find that prescription commences (again) for purposes of the Medical Malpractice Act upon the plaintiff’s receipt of the medical review panel’s opinion by certified or registered mail. We reverse.

Louisiana’s Medical Malpractice Act requires that an action against a health care provider covered by the Act be first presented to a medical review panel. La. R.S. 40:1299.47 B. By filing a claim with the medical review panel, the prescription of La.R.S. 9:5628 is suspended until 90 days following the “issuance” of the opinion by the medical review panel. La.R.S. 40:1299.-47 A.

In this case, the opinion of the medical review panel was rendered in July 1980 but was not sent to plaintiff’s attorney by regular mail until September 7, 1980. Because plaintiff’s attorney had moved and his mail apparently not forwarded, the attorney did not know of this opinion until February 9, 1981. On May 7, 1981, the chairman of the medical review panel sent a copy of the opinion by certified mail to all the involved parties and attorneys as required by R.S. 40:1299.47 J. This suit was filed July 31,' 1981. It was met by a plea of prescription. Defendant contends that this claim has prescribed since plaintiff had actual knowledge of the panel’s opinion in February 1981 which would make the July 31,1981 suit far outside the 30 days and remaining amount of time left on the prescriptive period for plaintiff. Plaintiff, however, contends that the date of receipt of the reissued medical review panel opinion properly sent by registered or certified mail should be the time in which to compute the additional 90 day period and the remaining time left in the prescriptive period.

We note that the pertinent provision of La.R.S. 40:1299.47 A states “the filing of the request for a review of a claim shall suspend the time within which suit must be instituted, in accordance with this part, until 90 days following the issuance of the opinion by the medical review panel.” (Emphasis added.) In its ordinarily understood meaning, issue, of which issuance is a derivative, is “the act of sending forth, emitting or promulgating.” See Black’s Law Dictionary 745 (5th ed. 1979); State ex rel. Robinson v. Blackburn, 367 So.2d 360, 363 (La.1979). Importantly R.S. 40:1299.47 J provides “[t]he chairman shall submit a copy of the panel’s report to the commissioner and all parties and attorneys by registered or certified mail within five days after the panel renders its opinion.” By inclusion in the Medical Malpractice Act of a provision specifically outlining the manner in which notice should be sent, we think it is the intention of the legislature that that particular means of notice constitute “issuance” of the medical review panel opinion. Certified or registered mail provides proof that plaintiff has received notice of the opinion and a definite time in which to determine the remaining time left for filing suit.

For the reasons stated above, we overrule the exception of prescription and remand this case for further proceedings. The costs of this appeal are assessed to defendant-ap-pellee; any costs at the trial court level arising from the adjudication of this exception of prescription are also assessed to defendant-appellee.

REVERSED AND REMANDED.

      . The record does not indicate the exact date this opinion was received by plaintiff; however, this omission does not affect this opinion since the July 31, 1981 filing of suit is within the prescriptive period.