text:
    Mrs. Elma Pitre CHAMPAGNE v. Russell P. CHAMPAGNE.
    No. 14180.
    Court of Appeal of Louisiana, First Circuit.
    May 26, 1981.
    Writ Denied July 2, 1981.

      Robert D. Morvant, Thibodaux, for plaintiff and defendant in rule-appellee Mrs. Elma Pitre Champagne.
    Garland R. Rolling, Metairie, for defendant and plaintiff in rule-appellant Russell P. Champagne.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   PONDER, Judge.

Defendant, Mr. Champagne was ordered to pay $75.00 per week in alimony to plaintiff by divorce judgment in 1973. Defendant has attempted unsuccessfully several times to have this alimony reduced. Most recently, in 1980, he filed a rule to show cause why the alimony should not be revoked or decreased. Mrs. Champagne filed an answer, requesting an increase in alimony and attorney fees for defense of the rule.

The trial court dismissed Mr. Champagne’s rule at his cost; it made no mention of Mrs. Champagne’s reconventional demand.

Mr. Champagne appealed; Mrs. Champagne answered the appeal.

The sole issue raised by Mr. Champagne’s appeal is whether the alimony award should be completely revoked on the ground that the liquidation of Mrs. Champagne’s real estate holdings would provide sufficient means for her maintenance.

In the community property settlement, Mrs. Champagne obtained her ex-husband’s interest in their family home, presently valued at $32,000 to $35,000. It is located only a very short distance from her daughter’s house, where Mrs. Champagne sleeps each night. Mrs. Champagne maintains her clothing, other personal possessions, furniture, and some food at the family home. She readily admitted that this situation has existed for several years, but submits that she has no guaranty that she will be able to continue to spend so much of her time with her daughter, who is married and has a family of her own.

In addition to the family home, Mrs. Champagne inherited a house, presently valued at approximately $30,000. Rental of the house provides Mrs. Champagne with income of $200 per month. An additional apartment, presently not rented, is in need of repairs because it floods during rain.

Mrs. Champagne itemizes her living expenses at $437 per month. Mr. Champagne asserts that $82 of these expenses are for non-allowable items, leaving a total of $355. Hence, even according to his calculations, the $200 per month in rental income is not sufficient means for Mrs. Champagne’s maintenance; and she is, therefore, in need.

However, Mr. Champagne’s argument that, if the rental property were sold for $30,000 and invested at an 8% annual interest rate, Mrs. Champagne would realize the same amount in interest income as she presently receives in rent, without the necessity of expending money for the maintenance of the property. This theory, however, does not consider the cost of settling the succession of Mrs. Champagne’s mother, which she estimates at $1,500. Neither does it consider tax liability upon the sale of the property. Both of these expenses would significantly reduce the net amount realized from the sale of the rental property and, therefore, reduce the amount of possible investment income.

Mr. Champagne further argues that sale of both the family home and the rental property and the subsequent investment of the proceeds would generate sufficient income for Mrs. Champagne to meet her present monthly expenses. However, this theory, once again, fails to consider tax liability upon sale of the properties. Moreover, the theory assumes that Mrs. Champagne could reside completely with her daughter’s family for the rest of her life.

No testimony was adduced regarding either the ability or willingness of the daughter and her family to assume permanent responsibility for the complete shelter of Mrs. Champagne. There is no evidence regarding the size of the daughter’s house, the feelings of the daughter and her family on the subject, nor even where Mrs. Champagne presently sleeps — whether in a separate bedroom, on a couch in a family room, etc. Mrs. Champagne testified that she has no guaranty that she will be able to continue to spend so much of her time with her daughter. The record simply does not justify a finding that Mrs. Champagne has the option of continuing to maintain her own home or moving completely to her daughter’s house. Without such an option, sale of the family home may necessitate expenditures for other housing for Mrs. Champagne.

A wife need not always sell her real estate holdings in order to qualify for alimony. Kean v. Kean, 388 So.2d 398 (La.App. 1st Cir. 1980); Petty v. Petty, 372 So.2d 805 (La.App. 3rd Cir. 1979). Moreover, only when large sums are tied up in excessive housing will the continued possession of a home be considered sufficient means to defeat alimony. Kean v. Kean, supra. See also Sonfield v. Deluca, 385 So.2d 232 (La.1980). We find no abuse of discretion in the trial court’s decision. See Sonfield v. Deluca, supra.

Mr. Champagne opposes any increase of alimony and any award of attorney fees both on the merits and on the basis that the question of “an increase in alimony is not before the court because a rule therefor was not made, heard or decided ...” Mrs. Champagne’s demand for an increase in alimony was made in the answer to the rule. Her attorney before presenting any testimony made the statement that “we have allowed the rule and asked for an increase ...” No objection was made either then or upon the presentation of the evidence. In written reasons the court said it “feels that Mrs. Champagne is not entitled to an increase in alimony ...” Under these circumstances, we hold that Mr. Champagne waived any objections he had, and that the court heard and decided her demand. It is true that the signed judgment made no reference to the demands for an increase in alimony and for. attorney fees. However, under the facts of this case, we hold that the failure to mention the demands was a denial thereof. Rains v. Thomason & Champion, 135 So. 92 (La.App. 2d Cir. 1931); Blanchard v. Arkansas Louisiana Gas Co., 51 So.2d 850 (La.App. 2d Cir. 1951).

Although plaintiff asked for an award of attorney fees in her answer to appeal, she did not mention the subject in her brief. We therefore consider the request abandoned. At any rate we find no merit therein. See Bruner v. Bruner, 373 So.2d 971 (La.App. 2d Cir. 1979).

For the foregoing reasons, the judgment of the trial court is affirmed. Costs of these proceedings are to be borne by appellant.

AFFIRMED.


source: Caselaw Access Project

author: LOTTINGER, Judge. •

license: Public Domain

text:
    John P. EVANS v. William E. EVANS, Appalachian Insurance Company et al. Victor SCOTT and Ruby Chenault Scott v. William E. EVANS, Appalachian Insurance Company et al.
    Nos. 14194, 14195.
    Court of Appeal of Louisiana, First Circuit.
    May 26, 1981.
    Victor A. Sachse, Jr. and Claude F. Rey-naud, Jr., Baton Rouge, for plaintiff-appel-lee, John P. Evans.
    Mrs. Anna Mae Evans, in pro. per.
    Robert L. Roland and George K. Anding, Jr., Baton Rouge, for defendants-appellants, Evans, Miller, Lloyd, King, and Daniel and intervenors-appellants, Alexander, Willis, and Miller.
    John Dale Powers, Baton Rouge, for defendants-appellees, Erwin. A. LaRose and Appalachian Ins. Co.
    Robert L. Bailey, III, Mandeville, for defendant-appellee, Boyd A. Evans.
    G. T. Owen, III and Judith Atkinson Chevalier, Baton Rouge, for defendant-appellee Ruby Chenault Scott and defendant-appellant, Victor Scott.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   LOTTINGER, Judge. •

These consolidated actions concern the validity of a statutory will which was witnessed by one of the persons named as a specific residuary legatee under the will. From a trial court judgment invalidating the particular legacy but upholding the remainder of the will, the particular legatee and a number of unknown heirs perfected these appeals.

The issues on appeal are whether a statutory will signed by a legatee is valid and whether the legacy itself is valid.

This case was submitted to the trial court on the following stipulated facts:

Hurl Cotner Scott executed a last will and testament in statutory form on April 5, 1977. She left seven specific bequests of property to specific named legatees, and the remainder of her estate to Victor Scott and Willard Scott, “share and share alike.” Victor Scott, the same person who was named the residuary legatee, was one of the witnesses to the will of Hurl Cotner Scott. Ms. Scott died on November 26, 1977, and her succession was opened on the docket of the Nineteenth Judicial District Court. The will was probated in connection with her succession. All the specific named legatees and residuary legatees survived her. On April 25, 1978, a judgment of possession was rendered in Ms. Scott’s succession, placing those named in the will into possession of the estate as specified and directed in the will.

The above paragraph of facts contains all of the facts that were stipulated, but the following facts, supplied by the briefs of the parties, put this case into a more understandable perspective.

Following the conclusion of Hurl Cotner Scott’s succession proceedings and after the judgment of possession was signed and filed on April 24, 1978, one of the specific legatees, John P. Evans, attempted to sell a piece of real estate bequeathed to him under the will of Hurl Cotner Scott. However, the attorney examining title to the real estate found that the title could possibly be defective because one of the specific residuary legatees had also witnessed the will. John P. Evans thereafter filed a suit, No. 14194, as did Victor Scott and Ruby Chenault Scott, No. 14195, seeking to determine the validity of Hurl Cotner Scott’s last will and testament.

In written reasons for judgment, the trial court held that only the specific legacy to the legatee who witnessed the will was invalid, and that the remainder of the will was valid. The legatee and a number of still as yet unknown legal heirs brought these appeals.

La.R.S. 9:2442 provides the formalities for confecting a statutory will. Among other things, the will must be witnessed by two competent witnesses. Subsection E of Section 2442 defines “competent witness” as a person who meets the qualifications of La.C.C. arts. 1591 and 1592, and who is physically able and knows how to sign his name and read the attestation clause of the will. La.C.C. art. 1592 provides that neither heirs nor named legatees can witness a testament.

Appellant-Scott contends that “the trial court erred in finding that the legacy to Victor Scott was invalid, null and void.”

The basis of Scott’s argument is that even though La.R.S. 9:2442 requires a statutory will to be executed in the presence of a notary and two competent witnesses not otherwise disqualified under La.C.C. arts. 1591 and 1592, the purpose of La.C.C. art. 1592 in prohibiting a legatee from being a witness to the testament is to prevent undue influence, pressure, coercion or persuasion. Since no undue influence, pressure, coercion, or persuasion was proved, La.C.C. art. 1592 has not been violated, Scott contends. Thus, the legacy should stand.

Appellant admits in his brief that prior to a 1976 amendment, La.R.S. 9:2442 did not prohibit a named legatee in a statutory will from acting as a witness to the will. Additionally, he admits that the last will and testament was executed after the effective date of the amendment to La.R.S. 9:2442.

Other than the argument that the law favors testacy over intestacy, and that no undue influence, pressure, coercion or persuasion was proved, appellant presents no reason for this court to reverse the trial court decision. We are of the opinion that La.R.S. 9:2442 in conjunction with La.C.C. art. 1592 is clear that the legatee cannot be a witness, regardless of whether the spirit of Article 1592 has been complied with or not.

The defendants-appellants, heirs of Hurl Cotner Scott, known or unknown and absentee, argue that the trial court fell into error in validating the remainder of the will. The basis of their argument is that the defective witness voided the entirety of the last will and testament, citing Succession of Roussel, 373 So.2d 155 (La.1979) and Succession of Bechtel, 99 So.2d 495 (La.App. Orl. Cir. 1958). Both Roussel and Bechtel are factually distinguishable and therefore not controlling. In Roussel an insufficient number of witnesses attested to a noncupa-tive will by private act, thus voiding the will. In Bechtel there was no signature on an olographic will, and an attempt was made to use the signature of the testator found on a slip of paper accompanying the testament in an envelope.

In support of affirming the trial court decision, appellee cites Woodfork v. Sanders, 248 So.2d 419 (La.App. 4th Cir. 1971), writ denied, 259 La. 759, 252 So.2d 455 (1971) wherein Judge Redmann as the organ of the court presents a convincing argument that La.C.C. art. 1595 should not void a will when a legatee is also a witness in violation of La.C.C. art. 1592. Judge Redmann argues that only the particular legacy should be voided in such a case.

Article 1595 is found in Book III, Title II of the Civil Code and not in the Revised Statutes. The only connection between La. R.S. 9:2442 and the Civil Code is the reference to La.C.C. arts. 1591 and 1592 for the definition of competent witnesses. There is no mention of Article 1595 in La.R.S. 9:2442. Thus, we are convinced that La. C.C. art. 1595 has no application to a statutory will. There is no requirement that the entirety of the will be declared null and void when a legatee witnesses a will.

Additionally, we find support for the trial judge’s decision in Succession of Purkert, 184 La. 792, 167 So. 444 (1936) and Succession of Killingsworth, 194 So.2d 331 (La.App. 1st Cir. 1966), writ refused, 250 La. 175, 194 So.2d 738 (1967), reversed on other grounds, 292 So.2d 536 (1974). Although these two cases deal with a bequest to a notary rather than a witness, the rationale is the same. In both, the particular legacy was voided, but not the entire will. We are aware that the policy of this state is to uphold the will of the testator if at all possible, and thus we find no error in the decision of the trial judge.

Therefore, for the above and foregoing reasons, the judgment of the trial court in both suits, Nos. 14194 and 14195 are affirmed at the costs of appellant Victor Scott.

AFFIRMED.


author: WATKINS, Judge.

text:
    H. R. “Buddy, VERNON d/b/a Buddy’s Promotional Advertising v. Barbara Gail SEITZ and Office of Employment Security of the Department of Labor of the State of Louisiana.
    No. 14196.
    Court of Appeal of Louisiana, First Circuit.
    May 26, 1981.

      William C. Shockey, Baton Rouge, for plaintiff-appellant H. R. “Buddy” Vernon d/b/a Buddy’s Promotional Advertising.
    Phil Breaux, St. Gabriel, for defendant-appellee Barbara Gail Seitz.
    James A. McGraw and Willie D. Maynor, Baton Rouge, for defendant-appellee Louisiana Department of Labor, Office of Employment Security.
    Before ELLIS, COLE and WATKINS, JJ.
   WATKINS, Judge.

Barbara Gail Seitz was employed by plaintiff, H. R. “Buddy” Vernon, d/b/a Buddy’s Promotional Advertising. On October 18, 1979, this employment was terminated when Ms. Seitz submitted her resignation upon plaintiff’s request. Ms. Seitz applied for unemployment compensation benefits, and the Office of Employment Security of the Louisiana Department of Labor (OES) determined that she was disqualified because she was guilty of misconduct on the job. She appealed that decision to the appeals referee for OES, who reversed the previous determination and found Ms. Seitz was entitled to benefits. Plaintiff appealed the referee’s decision to the Board of Review for OES.

On February 1, 1980, the board rendered a unanimous decision denying plaintiff’s appeal, the decision having the effect of upholding. the referee’s ruling that Ms. Seitz was entitled to benefits. The board’s decision specifically states that it reviewed the record in the case. On February 14, 1980, plaintiff filed this action in district court seeking judicial review of the board’s decision. On February 29, 1980, the board issued a second decision. The board therein specifically stated that it affirmed the referee’s ruling, but noted that its first decision failed to reflect one dissenting vote, and it contained a brief dissent of the dissenting board member.

The suit filed by plaintiff in district court alleges that the board failed to consider the record of the hearing before the referee. This allegation was made despite the board’s affirmative statement in its first decision that it reviewed the record. Plaintiff asked that the case be remanded to the board for the purpose of taking additional evidence. The petition included an order to set the matter for hearing. However, the district court noted on the order that plaintiff did not yet wish the hearing date to be fixed.

Eventually, a rule to show cause why the case should not be remanded was set for hearing. However, the matter was continued upon plaintiff’s own request. The district court reset the matter for hearing, but the minute entry for the date of the second setting reflects only that the matter was passed without date. The record contains no other mention of the rule to show cause, except its denial in the judgment and reasons therefor.

Meanwhile, OES filed with the district court the complete administrative record on the case, including documentation and the complete transcript of the hearing before the referee. The transcript was certified as correct on March 25, 1980, a date subsequent to the board’s decision.

Almost two months after plaintiff’s rule was passed without date, the district court rendered judgment with detailed reasons therefor, referring frequently to testimony adduced before the appeals referee. The district court found that the record contained sufficient evidence to support the board’s decision and dismissed plaintiff’s action. Also, the district court denied plaintiff’s motion to remand the case to take additional evidence, stating that a remand “would be a vain and useless gesture.” The district court noted that plaintiff did not specify any new evidence which could be offered, and that it appeared any such evidence would be merely cumulative.

On appeal, plaintiff does not attack the district court’s findings on the merits. He contends only that the district court erred in denying him the opportunity to introduce evidence to show that the board did not consider the transcript or the tape recordings and documentation presented at the referee’s hearing. Plaintiff asserts that he is prejudiced by this error because the court is bound on review by the board’s findings, but that the board issued no findings because it did not review the record.

First, we note that the record does not reflect that the district court refused to allow plaintiff an opportunity to introduce evidence showing that the board did not review the complete record. Upon the filing of the petition, plaintiff requested that the matter not yet be set for hearing. Subsequently, the matter was set for hearing twice. The first setting was upset at plaintiff’s request. The second setting resulted in the rule being passed without date.

Despite the statutory mandate of LSA-R.S. 23:1634, requiring that such matters be given preference over other civil actions, nearly two months elapsed between the second setting and rendition of judgment. Yet the record is devoid of any motion to reset the rule for hearing. We do not believe that plaintiff should now be heard to complain of a missed opportunity that resulted from a lack of diligence in pursuing the matter.

Moreover, even assuming arguendo that plaintiff was denied an opportunity to present such evidence, we find that plaintiff has not been prejudiced as he claims. Plaintiff asserts prejudice only in that (1) the board did not review the transcript of testimony, as the transcript of testimony was certified as correct only after the second decision, which contained the dissent, was signed, and (2) the board issued no findings of fact to serve as the basis for judicial review under LSA-R.S. 23:1634.

With regard to the first contention, we see that the board of review is permitted, not required, to review the transcript; it may deny the appeal and not review the transcript in its entirety, as will appear from the following discussion. ' Furthermore, the dissent of the member of the board of review mentions a review of the record, and seeks support by reference to the record. Thus, we feel confident there was a review of. the record taken before the referee, through listening to tape recordings or otherwise.

With regard to the second contention, LSA-R.S. 23:1634 provides, inter alia, that the findings of the board shall be conclusive if supported by sufficient evidence and in the absence of fraud. However, LSA-R.S. 23:1630 states, in pertinent part:

“[Ujpon denial by the board of review of an application for appeal from the decision of an appeal tribunal, the decision of the appeal tribunal shall be deemed to be a decision of the board of review within the meaning of this Section for purposes of judicial review and shall be subject to judicial review within the time and in the manner provided for with respect to the decision of the board of review. .. . ”

The board in the instant case denied plaintiff’s appeal and upheld the decision of the referee. Hence, the decision and findings of fact made by the referee are deemed to be those of the board for purposes of judicial review. LSA-R.S. 23:1630. Not only is plaintiff not prejudiced by the failure of the board to issue independent findings of fact, but the failure to do so is expressly provided for by statute.

In any event, our own review of the complete record convinces us that the judgment of the trial court is correct on the merits. Ms. Seitz had been employed as a secretary and to perform general office duties by plaintiff for approximately seven months at the time of the termination of her employment. During this period, she occasionally was required to leave work to take her son to the doctor. Additionally, she was late for work on several occasions and failed in some instances to record customer information adequately. Also, on one occasion, it was shown that Ms. Seitz substituted a sheet from her employer’s daily call book in order falsely to show that she had been present on that date. However, this incident occurred more than three months prior to the time her employment was terminated, and she apparently was never reprimanded therefor.

Ms. Seitz, on the other hand, denied most of the allegations made by plaintiff. She was able to establish that she did not violate any express company policy. Apparently, the policies of her employer were often changed without sufficient notice to employees.

It was also established at the referee’s hearing that Ms. Seitz never received a written reprimand and was verbally corrected by plaintiff only on two or three occasions. Additionally, Ms. Seitz proved that plaintiff voluntarily reimbursed her for a portion of her employment agency fee and that plaintiff gave her two cash bonuses during her tenure. The last bonus was given to Ms. Seitz only two weeks prior to the termination of her employment. Moreover, Ms. Seitz stated that plaintiff complimented her for her work on several occasions.

LSA-R.S. 23:1601 provides, inter alia:

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

In Atkins v. Doyal, 274 So.2d 438, 440 (La.App. 1st Cir. 1973), we stated:

“Misconduct sufficient to disqualify a claimant from receiving unemployment compensation has been consistently defined to mean an act of willful or wanton 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 interest, 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); Payne v. Antoines Restaurant, 217 So.2d 514 (4th La.App.1969); Heard v. Doyal, 259 So.2d 412 (2nd La.App.1972).”

In determining whether or not an employee has committed acts of misconduct sufficient to disqualify him from unemployment compensation benefits, the statute must be construed liberally in favor of finding that the employee is entitled to benefits. Parker v. Gerace, 354 So.2d 1022 (La.1978). We determine that, under the facts of this case, Ms. Seitz is entitled to receive unemployment compensation benefits. While her actions were not always those of the model employee, we do not find that she was guilty of acts of misconduct sufficient to disqualify her. Hence, we find the trial court’s judgment on the merits to be correct.

For the foregoing reasons, the judgment of the trial court is affirmed. Costs of this appeal are to be borne by plaintiff.

AFFIRMED.

      . The tape recording of an administrative hearing need not be transcribed unless further review is initiated. LSA-R.S. 23:1631.

      . We note that under LSA-R.S. 23:1634 the court is not permitted to receive evidence.


text:
    Danny Ray GUNTER v. Herbert K. PLAUCHE, M.D., et al.
    No. 14197.
    Court of Appeal of Louisiana, First Circuit.
    May 26, 1981.

      Robert W. Stratton, Baker, for plaintiff-appellant Danny Ray Gunter.
    Donald T. W. Phelps, Baton Rouge, for defendant-appellee Herbert K. Plauche, •M.D., and St. Paul Fire and Marine Ins. Co.
    Before ELLIS, COLE and WATKINS, JJ.
   WATKINS, Judge.

This is an action for medical malpractice brought by Danny Ray Gunter against Dr. Herbert K. Plauche, an orthopedic surgeon, and his medical malpractice insurer, St. Paul Fire and Marine Insurance Company. The case was tried before a jury. After plaintiff’s presentation of his case in chief, plaintiff moved for a directed verdict, which was denied. Defendants then moved for a directed verdict, which was granted. Plaintiff appeals both rulings.

On or about June 14,1976, Gunter injured his knee while entering his employer’s truck to close a window when it started to rain. The company physician referred him to Dr. Plauche, who after a short period of nonsurgical treatment, recommended surgery. On July 1, 1976, Dr. Plauche performed surgery on the knee. The surgery was unsuccessful, and Gunter was forced to undergo corrective surgery on the knee which was performed by Dr. Plauche on September 16,1976. The second operation was also unsuccessful. After consultation with an attorney, Gunter saw Dr. John J. Water-meier, who after several visits by Gunter performed a third operation on the knee on or about September 7, 1978. Plaintiff still has restricted use of the knee and suffers pain in the area of the knee.

The trial court clearly acted correctly in denying plaintiff’s motion for a directed verdict after plaintiff’s presentation of his case in chief. LSA-C.C.P. art. 1810(A) provides, in paraphrase, that in a case tried before a jury a party may move for a directed verdict at the close of the evidence offered by an opponent. It offends the Codal provision and all notions of justice to permit a plaintiff to obtain a directed verdict upon conclusion of his case in chief, without even permitting defendant to present a defense. There can be no question that plaintiff was correctly denied a directed verdict.

However, it is clear defendants were not entitled to a directed verdict. In a case tried before a jury, a jury is the trier of fact, and a directed verdict for defendant may be granted only if reasonable men, all inferences resolved in favor of the non-mover, could not possibly arrive at a verdict for the non-mover. Campbell v. Mouton, 373 So.2d 237 (La.App. 3d Cir. 1979).

In the present case, Dr. Plauche testified at the trial that he warned Gunter of several possible risks attendant upon the operation, but that he failed to warn Gunter of the possibility that there might be damage to the tendons of the leg and ligaments within the knee, which in fact the operation either caused or failed to correct. Yet, the clear implication of the testimony of two disinterested experts, Dr. Watermeier and Dr. Bernard Manale, was that there was a distinct possibility the initial operation would fail because of such an outcome. Furthermore, in an attempt to impeach Dr. Plauche’s testimony at the trial, plaintiff showed that in deposition Dr. Plauche had testified that he did not inform Gunter of any risks. That testimony is consistent with Gunter’s, who testified that Dr. Plauche told him that he needed surgery because of a torn cartilage and assured him there would be no problems.

It is thus possible for reasonable men to conclude that Gunter was denied a right to “implied consent”, which we have held is a right which cannot be denied a patient except in cases of emergency. Percle v. St. Paul Fire & Marine Ins. Co., 349 So.2d 1289 (La.App. 1st Cir. 1977); Beck v. Lovell, 361 So.2d 245 (La.App. 1st Cir. 1978), writ denied 362 So.2d 802 (La.1978). The following quotation from Percle is pertinent:

“We begin by finding it incumbent upon the patient to show that the physician violated the duty to disclose information allegedly withheld. The doctrine of ‘implied consent’ has been resorted to by the courts with increasing frequency in support of the theory of recovery in malpractice cases. The doctrine is based on the principle that a physician owes the patient the duty to disclose adequately the proposed diagnostic, therapeutic or surgical procedure contemplated, the material risks involved; and the alternatives available, if any, in order that a patient of ordinary understanding, confronted with such disclosures and faced with a choice of undergoing the proposed treatment, or selecting an alternative process, or preferring refusal of all medical relief may in reaching his decision, intelligently exercise his judgment by balancing the probable risks against probable benefits.”

Defendant properly notes that Percle is questioned in Hanks v. Drs. Ranson, Swan & Burch, Ltd., 359 So.2d 1089 (La.App. 3d Cir. 1978), writ refused 360 So.2d 1178 (La. 1978) for its assertion — not quoted — that the question of materiality of the risk is a question which should be left to the trier of fact. In the view of Hanks, there must be expert testimony as to whether the risk is rare, remote, or could reasonably be anticipated. Even if we were to adopt the Third Circuit’s view as set forth in Hanks, there is implicit in the testimony of Drs. Watermeier and Manale the view that the possibility of failure of the initial operation on Gunter could reasonably be anticipated, and indeed such failure was not an uncommon occurrence.

A further test for absence of “implied consent” is imposed by Percle, that is, whether, assuming the risks were material, a reasonable man would not undergo the operation. Some medical conditions are accompanied with such great danger, discomfort, or disability that a reasonable man, knowing of the risk, would undergo the operation anyway. The existence of cancer, as was the case of Percle, is one such condition. However, clearly, a painful, weak, and stiff knee is not necessarily such a condition, especially if the risk is that of continuing to have a painful, weak, and stiff knee after the operation. Thus, applying the “objective test” set forth in Percle, we see that the jury could conclude a reasonable patient would, knowing the risks, refuse to undergo the operation.

Reasonable men could conclude that Gunter was denied adequate disclosure of the material risks involved in the operation and the alternatives, if any, available, and that under the “objective test” a reasonable patient knowing those material risks to exist, would not undergo the operation. Hence, we hold that Gunter could have been denied the right of “implied consent”, and that the jury could find such consent to have been lacking. Thus, the directed verdict for defendants was improperly granted.

We reverse the action of the trial court in granting defendants a directed verdict, and remand the case for further proceedings consistent with this opinion, all costs of this appeal to be paid by defendants.

REVERSED AND REMANDED.


author: ELLIS, Judge:

text:
    FIRST STATE BANK & TRUST COMPANY v. FIREMAN’S FUND INSURANCE COMPANY, Robert J. Achee, Jr., and Joyce Achee.
    No. 14205.
    Court of Appeal of Louisiana, First Circuit.
    May 26, 1981.

      John I. Feduccia and Arthur W. Macy, Hammond, for plaintiff-appellee First State Bank & Trust Co.
    D. Bert Garraway, Baton Rouge, for defendants-appellees Robert J. Achee, Jr., and Joyce Achee.
    Charles W. Franklin and Ray C. Dawson, Baton Rouge, for defendant-appellant Fireman’s Fund Ins. Co.
    Before ELLIS, COLE and WATKINS, JJ.
   ELLIS, Judge:

Mrs. Joyce Achee, wife of Robert J. Achee, Jr., was an employee of First State Bank & Trust Company. Over a period of about five years she embezzled $33,337.39 from the Bank, which was deposited by her in a joint account in the names of Mrs. Achee and her husband. This suit was filed by the Bank against Mrs. Achee, Mr. Achee and Fireman’s Fund Insurance Company, which had written a Banker’s Blanket Bond covering losses such as that suffered by the Bank in this case. Fireman’s Fund third partied Mr. and Mrs. Achee.

Prior to trial, Fireman’s Fund paid the loss suffered by plaintiff, except for the $1,000.00 deductible portion thereof, and the main demand was dismissed as to it. The case was tried on the demand for $1,000.00 by the Bank against Mr. and Mrs. Achee, and on the third party demand for $32,337.39 by Fireman’s Fund against Mr. and Mrs. Achee.

At the trial, it was shown that Mrs. Achee had embezzled $33,337.39 from the plaintiff bank and that she had deposited it in the joint account which she had with her husband. Neither Mr. nor Mrs. Achee appeared at the trial, although they were represented by counsel.

After trial on the merits, judgment was rendered in favor of the Bank and Fireman’s Fund on their respective demands against Mrs. Achee. However, both claims were dismissed as to Mr. Achee. Fireman’s Fund appeals from that part of the judgment dismissing its third party demand as to Mr. Achee. In so holding, the trial judge found that the marriage relationship alone does not render the husband liable for the torts of the wife; that the fact that the community may have benefitted from the torts of the wife does not necessarily render the husband personally liable unless the wife was on a community mission; and that, even if benefit to the community does render the husband personally liable, no such benefit was proved in this case.

Fireman’s Fund argues that the fact that the stolen funds were deposited in the community joint account creates a presumption that they were community funds, and that the failure of Mr. and Mrs. Achee to rebut that presumption renders Mr. Achee personally liable for the claim.

It is true that the husband is not liable for the offenses of his wife because of the marriage relationship, unless he authorized his wife to perform the act in question, or unless she is attending to a community mission. Tandy v. Simoneaux, 344 So.2d 406 (La.App. 1st Cir. 1977); Walker v. Fontenot, 329 So.2d 762 (La.App. 1st Cir. 1976). There is nothing in the record to indicate that Mr. Achee was aware of his wife’s activities or that he authorized or participated in her thefts.

However, it is clear from the record that the proceeds of Mrs. Achee’s embezzlements were deposited in a community account, and that the community was enriched as a result. We find that, under those circumstances, principles of quasi contract require that Mr. Achee be found liable for the repayment of the amounts embezzled by Mrs. Achee, as a member of the community existing between them.

Article 2301 of the Civil Code provides: “He who receives what is not due to him, whether he receives it through error or knowingly, obliges himself to restore it to him from whom he has unduly received it.”

Based on the above article, and on the other articles dealing with quasi contracts, our courts have long held that there is an action ex contractu to compel the return of stolen property, even from those who are innocent purchasers thereof. Articles 2292-2294, 2301-2313 of the Civil Code, Louisiana P. & L. Co. v. Southern Scrap Materials Co., 244 So.2d 638 (La.App. 4th Cir. 1971) and cases cited therein. We can see no reason why one who has unwittingly benefitted from stolen money should not be subject to the same rule.

We disagree with the finding of the trial judge that no benefit to the community was shown in this case. The fact that the funds were deposited in a community account is presumptive proof of such benefit, which was not rebutted.

The judgment appealed from is therefore reversed insofar as it dismisses the third party demand of Fireman’s Fund against Mr. Achee, and there will be judgment herein in favor of Fireman’s Fund Insurance Company and against Robert J. Achee, Jr., and Mrs. Joyce Achee, in solido, in the sum of $32,337.39, together with interest at the legal rate from date of judicial demand until paid, and for all costs. The judgment is affirmed in all other respects.

REVERSED IN PART, AFFIRMED IN PART AND RENDERED.


author: GUIDRY, Judge.

text:
    Frances Vandersypen LACHNEY, Plaintiff-Appellant, v. Gordon Wayne LACHNEY, Defendant-Appellee.
    No. 7869.
    Court of Appeal of Louisiana, Third Circuit.
    May 27, 1981.

      Edward G. Randolph, Jr., Alexandria, for plaintiff-appellant.
    Gordon Lachney, pro. per.
    Before GUIDRY, FORET and CUTRER, JJ.
   GUIDRY, Judge.

This matter was previously before us on appeal. We remanded this matter to the trial court for completion of the record. Lachney v. Lachney, 391 So.2d 46 (La. App.3rd Cir. 1980). The matter has now been returned to us and although the record as now lodged with this court is still partially incomplete, we consider that it is sufficiently complete so as to permit the rendition of a judgment which is just, legal and proper.

The record reflects the following. Plaintiff and defendant were married on June 7, 1975 in Rapides Parish. They were judicially separated on March 27, 1978. In the judgment of separation plaintiff was awarded custody of the parties’ minor child, Tammy Lynn, and defendant was ordered to pay child support to plaintiff in the amount of $125.00 monthly. On March 17, 1979 defendant, in the course of visiting his child, discovered the child severely bruised and suspected that the child had been physically abused. The defendant thereafter caused proceedings in the interest of the minor to be instituted in the Juvenile Court for the Parish of Iberville, Louisiana, where Tammy Lynn and the plaintiff then resided. Following a hearing in March of 1979 the Juvenile Court awarded temporary custody of the minor, Tammy Lynn, to the defendant, her father. The defendant retained custody of the minor, pursuant to this court order, until December 4,1979 at which time the Juvenile Court ordered a return of custody of Tammy Lynn to the plaintiff. Immediately thereafter defendant instituted the instant proceeding seeking permanent custody of Tammy Lynn. Plaintiff also filed a rule seeking arrearages in child support allegedly due under the judgment of March 27, 1978, specifically, the sum of $937.50 allegedly due for the period during which the defendant had custody of the minor child under order of the Juvenile Court for the Parish of Iberville. The rules were consolidated for hearing. The trial court by judgment dated February 15,1980, removed Frances V. Lachney as legal custodian of her minor child and awarded permanent care, custody and control of Tammy Lynn to her father. Additionally, the judgment dismissed plaintiff’s demand for ar-rearages in child support. Plaintiff, has appealed from only that part of the judgment which denied her right to child support payments allegedly in arrears.

Although as aforestated the record on appeal is partially incomplete the parties do not dispute the fact that the minor child was in custody of her father from March 20, 1979 to December 4,1979 under order of the Juvenile Court for the Parish of Iberville and that during such period the father made no child support payments pursuant to the judgment of March 27, 1978.

The narrow issue on appeal is whether plaintiff’s right to child support payments under the judgment of the Ninth Judicial District Court dated March 27, 1978, was suspended during the period of time that the defendant father had custody of the minor child under order of the Juvenile Court of Iberville Parish.

In support of her demand for reversal of the trial court judgment plaintiff relies on Pisciotto v. Cruda, 224 La. 862, 71 So.2d 226 (1954), Hebert v. Hebert, 159 So.2d 537 (La.App.3rd Cir. 1964) and Granger v. Granger, 193 So.2d 898 (La.App.3rd Cir. 1967).

In each of the cited cases the courts held in effect that a judgment awarding alimony, including one for child support, is immune to alteration, change or suspension, until such time as the party held liable applies to a court of competent jurisdiction and is granted a modification thereof. In Pisciotto, supra, the court stated:

“. .. . (A) judgment for alimony, as to the amount that has become past due, is the property of him in whose favor it has been given, and is protected against alteration or annulment except by the method and for the causes prescribed by law... . (A) reduction of alimony or a discharge from the obligation to pay may be granted only from and after the time when it is sought, by suit or in answer to a suit to enforce payment....”

In Hebert, supra, this court was presented with a factual situation akin to that presented by the instant case. In Hebert, relying on the earlier cases of Pisciotto v. Cruda, supra, and Sampognaro v. Sampognaro, 222 La. 597, 63 So.2d 11 (1953) we denied the father credit for unpaid child support during a period when he was vested with custody by the juvenile court stating:

“We agree with the trial court that it is extremely inequitable to hold the husband liable for child support under the alimony decree for the nearly three months during which the mother did not in fact have custody of the child and during which the husband in fact actually supported the child. Although this did result from the official action of thejuve-nile court action in quasi-criminal proceedings, nevertheless under the jurisprudence this did not result in depriving the wife of her vested property right under the alimony judgment, in the absence of any judicial modification of such alimony judgment (or of a waiver by the wife of her rights thereunder).”

In Granger v. Granger, supra, the child had been placed by the juvenile court in a correctional school for boys pursuant to R.S. 13:1561. Thus the issue in Granger, supra, was whether the father was relieved of his obligation to pay child support while the child was temporarily removed from the mother’s custody under the authority of the juvenile court. In that case we considered the earlier ruling of this court in Hebert v. Hebert, supra, to be dispositive of the issue presented and accordingly refused to allow the father credit for child support accrued during the period of time that the child remained in the correctional school.

In the year 1977 our Supreme Court in Halcomb v. Halcomb, 352 So.2d 1013 appeared to re-affirm the principle that a judgment awarding alimony is not subject to alteration or modification absent a suit for modification by the party against whom the judgment had been rendered. In Hal-comb, supra, the court stated:

“Reduction of or discharge from a judgment condemning one to pay alimony must ... be sued for by the party against whom the judgment was rendered ... In the absence of such a suit, however, the judgment cannot be altered or modified ... except in certain instances where the award is terminated by operation of law. An example of an automatic revocation of alimony is when an award in favor of a wife is revoked when she remarries.”

However, in the recent case of Dubroc v. Dubroc, 388 So.2d 377 (La.1980) our Supreme Court appears to have departed from this seemingly established principle concluding in Dubroc that neither the Civil Code nor the Code of Civil Procedure mandates a lawsuit for a change in alimony. In Du-broc, supra, following divorce the mother was awarded custody of the two children and child support in the amount of $250.00 monthly. Sometime subsequent to the rendition of judgment the father and mother agreed that the father would take custody of one of the children and his obligation for child support payments to the mother would be reduced by one-half. Neither party complained of this arrangement until Mrs. Du-broc instituted a rule to make past due child support executory. The trial court found in favor of the plaintiff on the arrearages, concluding, in reliance on Halcomb v. Halcomb, supra, that the only manner in which a court-ordered child support obligation could be altered is through a suit properly instituted. Our Supreme Court, in affirming the judgment of the Court of Appeal, Fourth Circuit, 380 So.2d 672, which concluded that the agreement to suspend support payments was enforceable, stated:

“Halcomb and the cases upon which Hal-comb relies (e. g., Pisciotto, supra) rest on a strong policy in the area of child custody judgments to safeguard the sanctity of judgments and the orderly processes of law, and to prevent husbands from invoking ‘self-help’. It is an effort by the courts to prevent overreaching by husbands compelled to pay estranged wives support for their children. The cases have interpreted Civil Code Article 232 to require this result, namely, to require parties to resort to the courts for any alteration in a custody decree.
We find nothiner in the Civil Code or the Code of Civil Procedure to compel the interpretation set forth in Halcomb et a 1.
Article 232, which is directly at issue herein, provides:
‘When the person who gives or receives alimony is replaced in such a situation that the one can no longer give, or that the other is no longer in need of it, in whole or in part, the discharge from or reduction of the alimony may be sued for and granted.’ (emphasis added)
The Civil Code nowhere mandates a lawsuit for a change in alimony, and the Code of Civil Procedure merely provides for the proper procedure in seeking ar-rearages. This Court in Halcomb and earlier in Pisciotto engrafted a jurisprudential rule onto the alimony statutes to the effect that absent a lawsuit to alter an alimony decree the plaintiff in a rule for arrearages would be entitled to the full amount under the prior judgment up to three years prior to the rule.
Despite the wording of Article 227, quoted supra, what obliges parents to nourish and rear their children is the fact of maternity or paternity and not that of marriage. Plainol, Section 1681. To facilitate the enforcement of this obligation, however, each spouse is given, in his or her own name, a right of action against the spouse without custody to compel him or her to turn over in advance the money necessary to contribute toward the child’s maintenance.. . . Since the parent’s duty of support and upbringing is a legal duty owed to the child, it cannot be renounced or suspended. There is no prohibition, however, expressed by the law aerainst a spouse’s agreement to suspend his right to compel the other parent without custody to turn over to him in advance money necessary for the child’s maintenance. . .. The parent may not, by suspension of this right, thwart the purpose for which the right is established, i. e., the enforcement of the child’s right to support and upbringing.
... .if the parties clearly agree to a suspension of the payments, and such agreement does not interrupt the child’s maintenance or upbringing or otherwise work to his detriment, the agreement should be enforceable.” (Emphasis supplied; citation and footnotes omitted).

We do not consider that the principles announced in Dubroc, supra, are strictly limited to instances where parents have- by bilateral agreement, which does not interrupt the child’s maintenance or upbringing, stipulated for a suspension of child support payments. Rather, we believe and so hold that such principles are likewise applicable to a situation where, as in the present case, the mother’s right to custody has been temporarily divested by order of a court of competent jurisdiction and simultaneously vested in the father who assumes full responsibility and does in fact provide for the child’s maintenance and upbringing. In Dubroc, supra, the court noted that our law does not prohibit a spouse’s agreement to suspend his right to child support payments under an alimony judgment so long as such agreement does not thwart enforcement of the child’s right to support and upbringing. In other words the spouse’s vested property right under the alimony judgment may be suspended by mutual agreement if such agreement in no way jeopardizes enforcement of the child’s right to support and upbringing. We can conceive of no valid reason why an order of a court of competent jurisdiction temporarily divesting the mother of custody and simultaneously vesting the father with custody should not have the same effect. We hold that it does and that plaintiff’s right to child support payments under the judgment of March 27, 1978 was suspended during the period of time that defendant was vested with custody of the parties’ minor child by order of the Juvenile Court of Iberville Parish.

For the above and foregoing reasons the judgment appealed from is affirmed at appellant’s cost.

AFFIRMED.


author: DOMENGEAUX, Judge.

text:
    Lucy Biro JUNEAU, Plaintiff-Appellant, v. GARAN, INC., Defendant-Appellee.
    No. 7978.
    Court of Appeal of Louisiana, Third Circuit.
    May 27, 1981.
    Kennedy & Yeager, Ralph W. Kennedy, Alexandria, for plaintiff-appellant.
    Provosty, Sadler & deLaunay, Albin A. Provosty, Alexandria, for defendant-appel-lee.

      Before CULPEPPER, DOMENGEAUX and LABORDE, JJ.
   DOMENGEAUX, Judge.

The plaintiff, Lucy Biro Juneau, brought this suit seeking workmen’s compensation benefits for an accident which allegedly occurred on or about September 8, 1978. Named as defendants are the plaintiff’s employer, Garan, Inc. and its workmen’s compensation insurer, INA Insurance Company of Delaware. The plaintiff has perfected this appeal from a judgment of the trial court dismissing her claim. We affirm.

The sole issue of this appeal is whether or not the trial court erred in holding that the plaintiff is not entitled to workmen’s compensation benefits because she did not prove her disability was caused by a work-related accident.

The Supreme Court set forth the applicable legal principles governing the burden of proof necessary to establish a work-related injury in West v. Bayou Vista Manor, Inc., 371 So.2d 1146 (La.1979) as follows:

“In a workman’s compensation suit, the employee must establish the work-accident causing the injury by a preponderance of the evidence — i. e., ‘the testimony, as a whole, must show that more probably than [not] the employment accident caused the disability.’ Gradney v. Vancouver Plywood Co., Inc., 299 So.2d 347, 349 (La.1974). The causal relationship may be inferred when there is proof of an accident and an ensuing disability without an intervening cause. Johnson v. Travelers Insurance Co., 284 So.2d 888 (La.1973).
In evaluating the evidence, the trier of fact should accept as true the uncontra-dicted testimony of a witness, even though the witness is a party, at least in the absence of circumstances in the record casting suspicion on the reliability of this testimony. Olds v. Ashley, 250 La. 935, 200 So.2d 1 (1967); Farley v. Ryan Stevedoring Co., 238 La. 1048, 117 So.2d 587 (1960); Bonanno v. Decedue, 186 La. 1041, 173 So. 756 (1937).”

The plaintiff contends that the trial court erred in refusing to accept the uncon-tradicted testimony of the plaintiff that a work related accident did in fact occur. We disagree. Although, as a general rule, such uncontradicted testimony should be accepted as true, such principle is true only if there is “absence of circumstances in the record casting suspicion on the reliability of this testimony.” West, supra, at 1147. Hand v. Reeves, 378 So.2d 1064 (La.App.2nd Cir. 1979), writ refused 380 So.2d 72 (La.1980); Charleston v. Nabors Trailers, Inc., 381 So.2d 894 (La.App.2nd Cir. 1980).

The plaintiff alleges that her left leg and left knee were injured when an unknown fellow employee inadvertently ran a steel buggy into her left knee on or about September 8, 1978. The co-employee allegedly responsible for the injury did not testify. The plaintiff and her mother testified that she had previously injured the knee and was still being treated occasionally for this injury. Miss Shirley Briggs, a co-employee testified that on the day of the alleged accident, the plaintiff’s knee was swollen, but the plaintiff never related to her that it was caused by an accident at work. Mrs. Jane Lachney, the defendant-employer’s personnel supervisor who handled insurance claims for the defendant, testified that the plaintiff told her in December of 1978 that her injury occurred when she was playing softball and not from a work related accident. Mrs. Lachney testified that the plaintiff filed a claim under a health and accident policy provided by the defendant, not under the workmen’s compensation policy.

Plaintiff was seen by her doctor, Richard R. Michel, a general practitioner, on September 29, 1978, complaining of pain and swelling of the left leg in the knee area. She gave the doctor no history of what had happened to her. She was also seen by Dr. John T. Weiss, an orthopedic surgeon on October 25, 1978, complaining of the same problem — swelling and pain of the left knee. Again she gave no history of injury to the left leg or knee. According to the doctor, “she said she did not know of any known injury to the knee.”

Despite the plaintiff’s testimony that the injury was caused by a work-related accident, the trial court concluded that the evidence as a whole did not show that more probably than not the injury was caused by a work-related accident. An appellate court may not disturb a trial court’s evaluations of credibility and factual determinations unless the record reveals that the trial court’s decision is manifestly erroneous or clearly wrong. Canter v. Koehring Company, 283 So.2d 716 (La.1973); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). After reviewing the entire record, we cannot say that the trial court’s decision is clearly wrong. In fact, based on the totality of the evidence, the decision seems clearly right.

For the above and foregoing reasons, the judgment of the trial court is affirmed. All costs are assessed against the plaintiff-appellant.

AFFIRMED.


text:
    Earl J. ROY and Cynthia Marie Roy, Plaintiffs-Appellees, v. Adam DUCOTE, Jr., et al., Defendants-Appellants.
    No. 8073.
    Court of Appeal of Louisiana, Third Circuit.
    May 27, 1981.

      Cliffe E. LaBorde of LaBorde & La-fargue, Marksville, for defendants-appellants.
    Rivers & Willson, Thomas R. Willson, Alexandria, for plaintiffs-appellees.
    Before GUIDRY, FORET and CUTRER, JJ.
   GUIDRY, Judge.

Plaintiffs, Earl and Cynthia Roy, instituted this suit against defendants, Adam Du-cote, et al., seeking a declaratory judgment decreeing that a building restriction affecting properties owned by them is unconstitutional and therefore void and unenforceable. The parties stipulated to the facts and submitted the matter to the trial court for decision. The trial court rendered judgment in favor of plaintiffs declaring the building restriction unconstitutional in that it denies equal protection of the law to those persons who are financially unable to obtain home financing other than via the Farmers Home Administration interest credit loan or the Federal Housing Authority 235 “I” of “HUD” program. In addition, the trial judge declared that the subject restriction was “contra bonos mores and against public policy”. The trial court ordered the restriction stricken from the public records of Avoyelles Parish. Defendants appeal.

The facts as stipulated reflect that plaintiffs own 31 of 35 lots in the subdivision known as the Earl Roy Glen Monte Subdivision located near Hessmer in Avoyelles Parish, Louisiana.

Defendants own two lots in the same subdivision. The dispute between the parties concerns a building restriction applicable to the subject lots which provides that:

“FINANCING:
No dwelling shall be constructed which Is financed by a Farmers’ Home Administration interest credit loan, or by the Federal Housing Authority 285 “I” of “HUD" programs. This restriction shall not apply to any other loan programs for such dwellings administered by the above mentioned agencies.”

Plaintiffs purchased their lots in the Earl Roy Glen Monte Subdivision (formerly known as Rocky Acres — Estate of Hessmer, Inc. and Glen Monte Subdivision) subject to the restrictive covenant in dispute. Plaintiffs urge that the subject building restriction is unconstitutional since it discriminates against low income persons and denies such persons equal protection of the laws. In addition, plaintiffs contend that the building restriction adversely affects the marketability of their property since it effectively eliminates persons of low income from purchasing plaintiffs’ property, thereby, severely restricting their Federal and State constitutional rights to use, enjoy, and dispose of their private property.

To understand the impact of the restrictive covenant in dispute, it is necessary to examine the background and purpose of those loan programs which the covenant seeks to prohibit from financing homebuild-ing in the subject subdivision. The United States Congress in enacting the Housing and Urban Development Act of 1968 affirmed the national goal as set forth in 42 U.S.C.A. § 1441 of “a decent home and a suitable living environment for every American family.” 12 U.S.C.A. § 1701t. Cognizant that many families have such limited incomes as to preclude the achievement of this goal, Congress established several programs to aid such families in acquiring suitable housing. Section 285 of the aforementioned Act is aimed at assisting lower income families in acquiring home-ownership by subsidizing construction of single family units for their purchase. See 12 U.S.C.A. § 1715z. For a homeowner to qualify for the assistance payments under Section 235, the homeowner must meet the eligibility requirements set out by the Secretary of Housing and Urban Development, be of low income, and be a mortgagor under a mortgage in compliance with Section 235. See 12 U.S.C.A. § 1715z(b). At the time of its enactment, Section 235 was meant to assist low income families particularly those in the $3,000.00 to $7,000 annual income range. Commonwealth of Pennsylvania v. Lynn, 501 F.2d 848 (C.A.D.C.1974).

Under the Farmers Home Administration interest credit loan program, the Secretary of Agriculture is authorized to make loans to moderate and low income families for the acquisition of rural housing. See 42 U.S. C.A. § 1471 et seq. Under 42 U.S.C.A. § 1471(b)(4), a low income family is one whose income does not exceed eighty per cent (80%) of the median income for the area as determined by the Secretary. Of the loans made, sixty per cent (60,%) must benefit persons of low income. 42 U.S.C.A. § 1487 (o)(l).

Defendants contend that the plaintiffs do not have standing to challenge the constitutionality of the restrictive covenant in dispute. We observe that defendants raise this issue for the first time on appeal in brief only. Objections to the right of a party to institute suit is properly raised via a peremptory exception of no right of action which may be pleaded at any stage of the proceedings in the trial court prior to submission of the case for a deci-' sion and may be noticed either by the trial court or appellate court on its own motion. See LSA-C.C.P. Articles 927 and 928. In addition, LSA-C.C.P. Article 2163 provides:

“The appellate court may consider the peremptory exception filed for the first time in that court, if pleaded prior to a submission of the case for a decision, and if proof of the ground of the exception appears of record.
If the ground for the peremptory exception pleaded in the appellate court is prescription, the plaintiff may demand that the case be remanded to the trial court for trial of the exception.”

The issue of standing has not been properly presented to this court since defendants have not filed a peremptory exception of no right of action prior to submission of the case for a decision. We are aware that an appellate court may recognize the lack of legal interest of the plaintiff on its own motion, however, this authority is exercised sparingly. This authority should not be exercised except in cases where the record on its face clearly shows a lack of interest on the part of the plaintiff to institute suit. The instant case does not fall within this category, therefore, we decline to consider the issue of standing.

The restrictive covenant in dispute prohibits the construction of homes which are financed via the two aforementioned federal loan programs. We observe that it does not exclude the construction of homes financed by other federal loan programs. In support of the restrictive covenant’s validity, defendants contend that the purpose of the subject restriction is to “form a neighborhood that does not look like a ‘government program’ and to create a quiet, peaceful neighborhood with attractive surroundings and minimal amounts of noise and extraneous intrusions”. However, we fail to discern how the contested restrictive covenant will accomplish its avowed purpose. It seems clear to us that the only purpose of the disputed restrictive covenant is to exclude low income persons from the Earl Roy Glen Monte Subdivision by disallowing the primary mode of home financing available to such persons. As such it cannot stand.

Defendants urge that the building restriction in dispute is not subject to scrutiny under the equal protection provisions of either the federal or state constitution. We disagree. The Fourteenth Amendment to the United States Constitution forbids any state to deny the equal protection of the law to any person within its jurisdiction. By its terms, the Equal Protection Clause requires a finding of “state action” before the courts can subject the contested matter to scrutiny on equal protection grounds. In the instant suit, we note that the contested building restriction was recorded in Avoyelles Parish by the Avoyelles Parish Clerk of Court. This recordation functions to provide notice to third parties. In Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161 (1948), the United States Supreme Court concluded that the action of state courts and of judicial officers in their official capacities even though taken for the enforcement of private agreements, is state action within the meaning of the Equal Protection Clause of the U. S. Constitution. In Mayers v. Ridley, 465 F.2d 630 (C.A.D.C.1972), the court found that the action of the Recorder of Deeds for the District of Columbia in recording racially restrictive covenants is “state action” for equal protection purposes. The court noted in its opinion that:

“Fortunately, it is unnecessary to mediate this scholarly dispute, since this is not a close case. Whatever the vagaries of ‘state action’ at the margin, the core concepts remain clear. When the state acts directly and unambiguously in a discriminatory manner, it violates the basic command of the Fourteenth Amendment. Cf. Commonwealth of Pennsylvania v. Brown, 8 Cir., 392 F.2d 120, 125, cert. denied, 891 U.S. 921, 88 S.Ct. 1811, 20 L.Ed.2d 657 (1968). We are not dealing here with a case where tangential state involvement is used to implicate otherwise private activity with ‘state action.’ See, e. g., Burton v. Wilmington Parking Authority [365 U.S. 715, 81 S.Ct. 856, 6 L.Ed.2d 45], supra; Simkins v. Moses H. Cone Memorial Hospital, 4 Cir., 323 F.2d 959 (1963); Green v. Kennedy, D.D.C., 309 F.Supp. 1127, appeal dismissed, sub nom. Cannon v. Green, 398 U.S. 956, 90 S.Ct. 2169, 26 L.Ed.2d 539 (1970). Cf. Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 172-177, 92 S.Ct. 1965, 1971-1974, 32 L.Ed.2d 627 (1972). Nor is it even a situation in which a facially neutral government statute or policy has the effect in certain situations of denying racial justice. See Hunter v. Erickson [393 U.S. 385, 89 S.Ct. 557, 21 L.Ed.2d 616], supra; Reitman v. Mulkey [387 U.S. 869, 87 S.Ct. 1627, 18 L.Ed.2d 880], supra. The Recorder of Deeds is a state official, and the activities of the Recorder’s office are a state responsibility. The Recorder has made a policy decision to consider illegal, racist covenants as documents ‘affecting the title or ownership of real estate’. See 45 D.C. Code § 701(a)(1). If the concept of ‘state action’ has any meaning at all, then that decision is a state decision for which the state is fully responsible.”

In the present case, the Avoyelles Parish Clerk of Court has recorded a restrictive covenant which discriminates against persons of low income. The Clerk’s action in recording the subject building restriction constitutes “state action” for the purposes of constitutional scrutiny.

Accordingly, this court must determine if the building restriction at issue discriminates against an identifiable class in an invidious manner. The identifiable class in this instance is composed of those low income persons eligible to receive federal financing through the two aforesaid federal loan programs available to low income persons for home construction. In essence, these persons are discriminated against on the basis of their economic status. To determine whether an equal protection claim exists involves a balancing of a legitimate governmental purpose against the discriminatory effect of state action. Where the discrimination is based upon economic status, strict scrutiny of such balance is required. In Harper v. Virginia Board of Elections, 383 U.S. 663, 86 S.Ct. 1079, 16 L.Ed.2d 169 (1966), the Court noted that lines drawn on the basis of wealth or property, like those of race, are traditionally disfavored. Therefore, it must be shown that there is a compelling state interest served by such a classification for it to stand. See Harper, supra; Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969); Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956); Boddie v. Connecticut, 401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971), (concurring opinion by Douglas, J.). The only purpose for the discriminatory restrictive covenant articulated by defendants is their desire to “form a neighborhood that does not look like a ‘government program’ and to create a quiet, peaceful neighborhood with attractive surroundings and minimal amounts of noise and extraneous intrusions”. We conclude that such an interest is not so compelling as to justify invidious discrimination against persons of low income. As previously stated, the purported intent of the disputed covenant can be accomplished by means other than the enforcement of the contested building restriction. To introduce “method of financing” as a basis for building a home in a particular location is an arbitrary, capricious, and irrelevant factor. Thus, under the present circumstances, this court concludes that the building restriction at issue, if enforced, would result in invidious discrimination against an identifiable class, specifically persons of low income, and therefore, runs afoul of the federal and state guarantees of equal protection of the laws.

In addition, this court observes that many of the low income-persons affected by the subject building restriction will be members of racial minorities. Thus, the practical effect of the implementation of the restrictive covenant will be to exclude members of racial minorities from constructing homes in the Earl Roy Glen Monte Subdivision. Although the covenant by its language does not discriminate against persons on the basis of race, it cannot be ignored that in operation it will accomplish that end. It is well settled that racially restrictive covenants are unenforceable. Shelley v. Kraemer, supra; Barrows v. Jackson, 346 U.S. 249, 73 S.Ct. 1031, 97 L.Ed. 1586 (1953); see also, the Fair Housing Act of 1968, 42 U.S.C.A. § 3604.

Plaintiffs in brief assert that the subject building restriction infringes upon their constitutional rights to acquire, enjoy, and dispose of their private property. In addition, plaintiffs contend that the restrictive covenant violates the public policy against the perpetual and total inalienability of property since the building restriction is allegedly binding on all persons for a period of fifty years from the date of recordation. This court is not required to address these issues as we have previously concluded that the building restriction at issue is violative of federal and state guarantees of equal protection of the laws and as such, cannot stand.

For the above and foregoing reasons, the judgment of the trial court is affirmed. All costs of these proceedings are assessed to the defendants.

AFFIRMED.

      . The owners of the remaining lots in the Earl Roy Glen Monte Subdivision were made parties defendant however such parties failed to answer and a preliminary default judgment was entered against them on April 25, 1980. The record does not reflect confirmation of this preliminary default judgment.

      . We observe that plaintiffs’ counsel in brief and the trial judge in his written reasons for judgment refer to additional building restrictions applicable to the subject property which allegedly dictate both minimum size and minimum appraised value for homes constructed in the Earl Roy Glen Monte Subdivision, however, such restrictions are not a part of the record filed with this court. In addition, we note that defendant’s counsel in brief admits that the prohibited federal loan programs are able to provide financing sufficient to construct homes in compliance with those restrictions relative to size and appraised value minimums.

      . LSA-Const. Art. I Sec. 3 provides:
      “No person shall be denied the equal protection of the laws. No law shall discriminate against a person because of race or religious ideas, beliefs, or affiliations. No law shall arbitrarily, capriciously, or unreasonably discriminate against a person because of birth, age, sex, culture, physical condition, or political ideas or affiliations. Slavery and involuntary servitude are prohibited, except in the latter case as punishment for crime.”


author: LABORDE, Judge.

text:
    Lawrence P. MELANCON et al., Plaintiffs-Appellants, v. Beatrice DURAND et al., Defendants-Appellees.
    No. 8122.
    Court of Appeal of Louisiana, Third Circuit.
    May 27, 1981.
    Peter C. Piccione, Jr., Lafayette, for plaintiffs-appellants.
    J. B. Willis, St. Martinville, for defendants-appellees.
    Before CULPEPPER, DOMENGEAUX and LABORDE, JJ.
   LABORDE, Judge.

Plaintiffs, Lawrence P. Melancon, Roy Latiolais, Chris Latiolais, and Louis Latio-lais sued Beatrice Durand, Bernard J. Bien-venu, Lester J. Bienvenu, Delores Bienvenu, and Gordon P. Bienvenu alleging breach of a contract to lease farm land. The trial court decided in defendants’ favor and dismissed plaintiffs’ claim. Plaintiffs appeal. We affirm. Plaintiffs have not proved by a preponderance of the evidence that the parties entered into a written or verbal lease, nor have plaintiffs proved any damages resulting from the alleged breach of contract.

Beatrice Durand is the usufructuary and the other defendants are the naked owners of farm land located near Bayou Teche in St. Martin Parish. In March of 1964, plaintiff Melancon began farming operations on the defendants’ land under a written, recorded lease agreement. This original lease was for a term of six years, ending January 15, 1970.

Upon the expiration of the first lease in 1970, Melancon and Mrs. Beatrice Durand, the usufructuary of the property, negotiated a new lease for a term of six years ending in December, 1975. This lease, identical to the first lease, was written but not recorded.

When the second lease was about to expire at the end of December, 1975, Melan-con sought to re-negotiate the lease for another six-year period. Some changes were made and Melancon’s wife typed up a lease agreement which was signed by Me-lancon and two naked owners of the property. The usufructuary, Mrs. Beatrice Du-rand, wanted some additional changes and refused to sign the lease. This lease was never signed by Mrs. Durand. However, Melancon continued to farm the land in 1976. In 1977, Melancon retired from farming and the Latiolais brothers took over the farming operations from him. When Mrs. Durand discovered that Melancon was no longer conducting the farming operations, she notified the Latiolais brothers that she did not desire to lease the land to them after the 1977 harvest.

The plaintiffs filed this suit seeking damages for breach of the lease contract. The defendants filed a motion for summary judgment which was sustained by the trial court. On appeal, this court reversed the trial court’s grant of a summary judgment and remanded for further proceedings. Melancon v. Durand, 378 So.2d 580 (La.App. 3rd Cir. 1979). On remand, after trial on the merits, the trial court concluded that the defendants did not agree to the new six-year lease beginning in 1976, but that there was tacit reconduction of the previous lease for the years 1976 and 1977. The trial court also concluded that the plaintiffs had not proved any damages resulting from Mrs. Durand’s failure to lease the property to them after 1977.

The plaintiff in a civil matter must prove each element of his case by a preponderance of the evidence. This standard has been described by some courts as meaning “evidence which is of greater weight or which is more convincing than evidence offered in opposition thereto, and which, because it best accords with reason and probability, or which because of its more convincing nature and quality, best tips the scales of justice in favor of the party upon whom the burden rests.” Alexander v. St. Paul Fire & Marine Insurance Co., 312 So.2d 139 (La.App. 1st Cir. 1975) writ refused 313 So.2d 846 (La. 1975); Bailey v. Travelers Insurance Company, 210 So.2d 93 (La.App. 1st Cir. 1968) and Lemoine v. Noel, (La.App. 3rd Cir. 1981) our # 8140 rendered April 15, 1981.

The trial court concluded that no written lease was entered into between Me-lancon and Mrs. Durand after the second lease expired at the end of 1975, nor was a verbal lease entered into because the parties could not agree on the details of the lease. The second lease was tacitly recon-ducted in 1976 and 1977 when farming operations were conducted on the land without objection from Mrs. Durand. The trial court also concluded that the Latiolais brothers did not negotiate a lease with Mrs. Durand and had no contact with her at all until she notified them in July or August of 1977 that she no longer desired to let them conduct farming operations on her land. The trial court further concluded that the plaintiffs had not proved by a preponderance of the evidence any damages resulting from Mrs. Durand’s refusal to allow the plaintiffs to conduct farming operations on her land after the 1977 harvest.

Our own review of the evidence indicates that the testimony was conflicting. The trial court’s factual determination will not be disturbed on appeal unless a review of the record reveals that the decision is manifestly erroneous or clearly wrong. Canter v. Koehring Company, 283 So.2d 716 (La. 1973); Arceneaux v. Domingue, 365 So.2d 1330 (La. 1978). Where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Canter v. Koehring Company, supra. We cannot say that the trial court’s conclusions are clearly wrong.

For the above and foregoing reasons, the judgment of the trial court dismissing the plaintiffs’ demands is affirmed. All costs are assessed against the plaintiffs-appellants.

AFFIRMED.


author: CULPEPPER, Judge.

text:
    Robert HODGE, Plaintiff and Appellant, v. LAFAYETTE GENERAL HOSPITAL et al., Defendants and Appellees.
    No. 8124.
    Court of Appeal of Louisiana, Third Circuit.
    May 27, 1981.
    Shelton & Lagendre, Thomas F. Porter, IV, Lafayette, for plaintiff-appellant.
    Simon & Woodruff, Diana P. Simon, One-bane, Donohue, Bernard, Torian, Diaz, McNamara & Abell, P. A., Timothy J. McNamara, Lafayette, for defendants-ap-pellees.
    Voorhies & Labbe, Marc W. Judice, Lafayette, Gracella Simmins, Baton Rouge, for defendant-appellee.
    Before CULPEPPER, DOMENGEAUX and LABORDE, JJ.
   CULPEPPER, Judge.

This is a medical malpractice action. The plaintiff, Robert R. Hodge, seeks damages for personal injuries resulting from a surgical operation on his left knee. Named as defendants are the surgeon, Dr. J. Lee Leonard, and his insurer, Hartford Accident and Indemnity Company and Lafayette General Hospital and its insurer, Continental Insurance Company. The defendant hospital and its insurer filed an exception of prematurity. The physician and his insurer filed exceptions of lack of jurisdiction and improper venue. The trial court treated the physician’s exceptions as one of prematurity and sustained the exceptions as to all defendants on the grounds that the plaintiff’s actions are premature because the plaintiff has not complied with the medical review panel requirements of the Louisiana Medical Malpractice Act, LSA-R.S. 40:1299.-47 et seq. Plaintiff appealed. We affirm.

The substantial issue on appeal is whether lack of informed consent is a battery or an intentional tort, not subject to the provisions of the Medical Malpractice Act requiring review by a medical panel prior to filing suit.

The facts are that on August 16, 1977, while plaintiff was employed by Frontier Kemper Construction Company as a carpenter and welder at the Weeks Island Salt Mine, he was struck on his left knee by a falling beam. As a result of this injury, plaintiff consulted the defendant, Dr. J. Lee Leonard. This physician performed surgery on the plaintiff’s knee on October 17, 1978 at Lafayette General Hospital. Subsequently, complications developed which give rise to this suit. Plaintiff’s petition alleges the surgical procedure was performed without his prior “informed consent”. He admits his claims were not reviewed by a medical panel before suit.

The pertinent statutory provisions are as follows: LSA-R.S. 40:1299.47 requires all malpractice claims, regardless of their nature, to be submitted before a medical review panel. It states in pertinent part:

“§ 1299.47. Medical review panel
“A. All malpractice claims against health care providers covered by this Part, other than claims validly agreed for submission to a lawfully binding arbitration procedure, shall be reviewed by a medical review panel established as hereinafter provided in this Section.
* * * * * *
“B. No action, against a health care provider covered by this Part, or his insurer, may be commenced in any court of this state before the claimant’s proposed complaint has been presented to a medical review panel established pursuant to this Section and an opinion is rendered by the panel. By agreement of both parties, the use of the medical review panel may be waived.”

The terms “tort” and “Malpractice” are defined by R.S. 40:1299.41(7) and (8) as:

“(7) ‘Tort’ means any breach of duty or any negligent act or omission proximately causing injury or damage to another. The standard of care required of every health care provider, except a hospital, in rendering professional services or health care to a patient, shall be to exercise that degree of skill ordinarily employed, under similar circumstances, by the members of his profession in good standing in the same community or locality, and to use reasonable care and diligence, along with his best judgment, in the application of his skill.
“(8) ‘Malpractice’ means any unintentional tort or any breach of contract based on health care or professional services rendered, or which should have been rendered, by a health care provider, to a patient, and also includes all legal responsibility of a health care provider arising from defects in blood, tissue, transplants, drugs and medicines, or from defects in or failures of prosthetic devices, implanted in or used on or in the person of a patient.” (Emphasis supplied)

Plaintiff first contends he need not submit his claim to a medical review panel under LSA-R.S. 40:1299.47 because a cause of action based on lack of “informed consent” is not “malpractice” under the above quoted statutory definitions. Plaintiff quotes from Beck v. Lowell, 361 So.2d 245 (La.App. 1st Cir. 1978) as supporting his contention that in medical malpractice cases there is a distinction between unintentional negligence and intentional torts:

“A surgeon who performs an operation without the consent of a patient, or some authorized person, commits a trespass on the body of the patient, in the nature of a battery, and subjects himself to liability for damages.”

In Percle v. St. Paul Fire & Marine Insurance Company, 349 So.2d 1289 (La.App. 1st Cir. 1977), writ denied 350 So.2d 1218 (La. 1977), plaintiff contended his lack of informed consent rendered the physician liable, as having committed a battery on plaintiff’s person, irrespective of negligence. The court discussed the two legal theories, negligence and battery, used to find liability based on lack of informed consent. The opinion states that although some courts have applied the battery theory, the majority view considers failure to inform the patient as constituting negligence, principally because of the absence of the physician’s intent to injure his patient. The court quotes at length from Trogun v. Fruchtman, 58 Wis.2d 569, 207 N.W.2d 297 (1973), which gives several reasons for the inadequacy of the battery theory of liability in informed consent cases. First, lack of informed consent does not fit the traditional concepts of battery, i. e., an intentional touching or striking another person. Second, the failure to inform a patient is not, in the usual case, an intentional tort, because there is no intent to injury nor substantial certainty that injury is likely to result. Third, the lack of informed consent is not compatible with the traditional idea of “contact” or “touching”, because the physician is performing surgery or other treatment in an effort to cure the patient. Fourth, a question may arise as to whether a physician’s malpractice insurance covers liability for battery, a criminal act, or for an intentional tort. For these reasons, the Wisconsin court concluded it is preferable to treat lack of informed consent as negligence arising out of breach of duty to inform the patient of all known risks.

In Percle, the Court of Appeal, Fourth Circuit, accepted the reasoning of the Wisconsin court in Trogun, and treated lack of informed consent as negligence, rather than battery. We also think the reasoning of these courts is sound and must be accepted.

We conclude that lack of “informed consent” is unintentional negligence, not an intentional tort, and therefore is covered by the provisions of the Louisiana Medical Malpractice Act.

Plaintiff argues next that the adoption of the “UNIFORM CONSENT LAW”, LSA-R.S. 40:1299.40, separate from the “MEDICAL MALPRACTICE ACT”, LSA-R.S. 40:1299.41 et seq., shows a legislative intent that actions based on lack of informed consent not be subject to the provisions of the Medical Malpractice Act. The Uniform Consent Law, which was adopted at the same time as the Medical Malpractice Act, sets forth the definition of “Consent to Medical Treatment” and the requirements therefor.

Plaintiff contends the issue of informed consent is a fact question for the judge or jury without the necessity of expert medical testimony, and that therefore the issue need not be submitted to a medical review panel. We disagree, in most cases, expert medical opinion is necessary to determine whether the patient has been informed of all “known risks”.

Moreover, LSA-R.S. 40:1299.47 requires all medical malpractice actions to be submitted to a medical review panel. We have already determined that this is a medical malpractice action. We note also that the opinion of the medical review panel may contain the conclusion that there is a “material issue of fact, not requiring expert medical opinion, bearing on liability for consideration by the court.” LSA-R.S. 40:1299.47(G)(3). This supports our conclusion.

Plaintiff also contends the provision of the Louisiana Medical Malpractice Act that bars the commencement of a suit against a health care provider until an opinion is rendered by the medical review panel is unconstitutional as this violates his right to due process and equal protection. The constitutionality of LSA-R.S. 40:1299.47(A) and (B) has been upheld by the Supreme Court in Everett v. Goldman, 359 So.2d 1256 (La.1978) as being “reasonably related to the guarantee of continued health care for our citizens at reasonable cost.” See also: Casho v. Baton Rouge General Hospital, 378 So.2d 182 (La.App. 1st Cir. 1979) and Knepper v. State, Department of Health & Human Resources, 359 So.2d 1127 (La.App. 3rd Cir. 1978).

For the reasons assigned, the judgment appealed is affirmed. All costs of this appeal are assessed against the plaintiff-appellant.

AFFIRMED.