text:
    CITY OF SHREVEPORT v. Beneditto PUPILLO.
    No. 81-C-0092.
    Supreme Court of Louisiana.
    Feb. 6, 1981.
   In re City of Shreveport, applying for writ of certiorari, or review, to the Court of Appeal, Second Circuit. Parish of Caddo. 390 So.2d 941.

Denied.


source: Caselaw Access Project

license: Public Domain

text:
    Leola SCOTT v. STATE of Louisiana, THROUGH the DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT.
    No. 81-C-0104.
    Supreme Court of Louisiana.
    Feb. 6, 1981.
   In re State of Louisiana, through the Department of Transportation and Development, applying for writs of certiorari, or review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 392 So.2d 482.

Denied.

MARCUS, J., would grant the writ.


text:
    James F. GASQUET, Jr. v. COMMERCIAL UNION INSURANCE COMPANY, Stonewall Insurance Company, and H & B Construction Company of Louisiana, Inc.
    No. 81-C-0105.
    Supreme Court of Louisiana.
    Feb. 6, 1981.
   In re James F. Gasquet, Jr., applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Plaque-mines. 391 So.2d 466.

Writ denied.

LEMMON, J., would grant the writ.


text:
    Cynthia Vinnedge BROWN, Wife of David Brown v. David BROWN.
    No. 81-C-0129.
    Supreme Court of Louisiana.
    Feb. 6, 1981.
   In re Cynthia Vinnedge Brown, wife of David Brown, applying for writs of review, prohibition and mandamus. Parish of Orleans. No. 79-13867, consolidated with No. 80-13892.

Denied.


text:
    Patricia H. HILDERBRAND v. William C. HILDERBRAND.
    No. 81-C-0135.
    Supreme Court of Louisiana.
    Feb. 6, 1981.
   In re Patricia H. Hilderbrand, applying for writ of certiorari, or review, to the Court of Appeal, Fourth Circuit. Parish of Jefferson. 391 So.2d 577.

Writ denied.


text:
    James F. GASQUET, Jr. v. COMMERCIAL UNION INSURANCE COMPANY, Stonewall Insurance Company, and H & B Construction Company of Louisiana, Inc.
    No. 81-C-0160.
    Supreme Court of Louisiana.
    Feb. 6, 1981.
   In re Stonewall Insurance Company, applying for writs of certiorari or review, to the Court of Appeal, Fourth Circuit. Parish of Plaquemines. 391 So.2d 466.

Writ denied.

BLANCHE, J., would grant the writ.


text:
    STATE of Louisiana v. Bennie G. SMITH.
    No. 81-K-0149.
    Supreme Court of Louisiana.
    Feb. 6, 1981.
   In re Bennie G. Smith, applying for writs of certiorari, review, prohibition, mandamus and stay order. Parish of Tangipahoa. Nos. 44458, 44459 and 44460.

Granted as to location where offense occurred; otherwise, denied.


text:
    STATE of Louisiana v. Roy A. VANDERHOFF.
    No. 80-O-2517
    Supreme Court of Louisiana.
    Feb. 6, 1981.
   In re Roy A. Vanderhoff, motion for reconsideration, 34th Judicial District Court. St. Bernard Parish. No. 49-888.

Reconsideration granted. Previous action of this Court vacated. Motion for remand is granted and the case is remanded for the purpose of a hearing on the motion for a new trial based on newly discovered evidence.


text:
    STATE of Louisiana ex rel., August WILLIAMS v. CLERK OF COURT, PARISH OF ORLEANS, CRIMINAL DISTRICT COURT.
    No. 80-KH-1958.
    Supreme Court of Louisiana.
    Feb. 6, 1981.
   In re August Williams, applying for remedial writ. Parish of Orleans. No. 202-536.

Denied.


text:
    STATE of Louisiana ex rel., Junior SMITH v. Warden Frank BLACKBURN, Louisiana State Penitentiary.
    No. 80-KH-2007.
    Supreme Court of Louisiana.
    Feb. 6, 1981.
   In re Junior Smith, applying for writs of habeas corpus, and mandamus. Parish of Iberville. Nos. 3207-79 and 3208-79.

Writ denied. On the showing made there is not a sufficient reason to warrant exercise of our jurisdiction.


text:
    STATE of Louisiana ex rel., Tempter JOHNSON v. Frank C. BLACKBURN et al., Warden, Louisiana State Penitentiary.
    No. 80-KH-2071.
    Supreme Court of Louisiana.
    Feb. 6, 1981.
   In re Templer Johnson, applying for writ of mandamus. Orleans Parish. No. 253-094.

Denied.


text:
    STATE of Louisiana ex rel., Morris JOHNSON v. STATE of Louisiana.
    No. 80-KH-2161.
    Supreme Court of Louisiana.
    Feb. 6, 1981.
   In re Morris Johnson, applying for remedial writs. Parish of Orleans. No. 183-337.

Denied.


text:
    STATE of Louisiana ex rel., Steve DAMERON and Hollis McNabb v. STATE of Louisiana.
    No. 80-KH-2175.
    Supreme Court of Louisiana.
    Feb. 6, 1981.
   In re Steve Dameron and Hollis McNabb, applying for writ of habeas corpus. Parish of St. Tammany. No. 72314.

Denied.


text:
    STATE of Louisiana v. McArthur JOHNSON.
    No. 80-K-1376.
    Supreme Court of Louisiana.
    Feb. 6, 1981.
   In re McArthur Johnson, applying for reconsideration of denied writ, September 12, 1980. Parish of Bossier. 26th Judicial District Court. No. 54-874.

Denied.


text:
    CITY OF LAKE CHARLES v. Floyd Joseph FRUGE.
    No. 81-K-0076.
    Supreme Court of Louisiana.
    Feb. 6, 1981.
   In re Floyd Joseph Fruge, applying for writs of certiorari, prohibition, mandamus, and stay order. Parish of Calcasieu. Lake Charles City Court, Number C-80-146 and 14th Judicial District Court, No. 7328-80.

Denied.

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


text:
    STATE of Louisiana ex rel., Kenneth L. JOHNSTON v. Warden Frank BLACKBURN, Louisiana State Penitentiary.
    No. 80-KH-2196.
    Supreme Court of Louisiana.
    Feb. 6, 1981.
   In re Kenneth L. Johnston, applying for writ of certiorari. Parish of St. Landry. No. 27848.

Denied.

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


text:
    STATE of Louisiana ex rel., Mark Dwayne SMITH v. Frank C. BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 80-KH-2231.
    Supreme Court of Louisiana.
    Feb. 6, 1981.
   In re Mark Dwayne Smith, applying for supervisory and remedial writs. Parish of St. John the Baptist. No. 5-75 (criminal).

Denied.


text:
    STATE of Louisiana, ex rel., Matthew HENDERSON v. Frank C. BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 80-KH-2247.
    Supreme Court of Louisiana.
    Feb. 6, 1981.
   In re Matthew Henderson, applying for writs of habeas corpus and mandamus. Orleans Parish. No. 255-000.

Writ denied.


text:
    STATE of Louisiana ex rel. Billy Wayne SINCLAIR v. Frank C. BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 80-KH-2277.
    Supreme Court of Louisiana.
    Feb. 6, 1981.
   In re Billy Wayne Sinclair, applying for writ of habeas corpus. Parish of East Baton Rouge. No. 54969.

Writ denied.

BLANCHE, J., recused.


text:
    STATE of Louisiana ex rel. Grandville TENNART v. Frank BLACKBURN et al.
    No. 80-KH-2318.
    Supreme Court of Louisiana.
    Feb. 6, 1981.
   In re Grandville Tennart, applying for remedial writs. Parish of Avoyelles. No. 80978.

Writ denied.


text:
    STATE of Louisiana ex rel. Ulysses D. SMITH v. Frank C. BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 80-KH-2366.
    Supreme Court of Louisiana.
    Feb. 6, 1981.
   In re Ulysses D. Smith, applying for writs of certiorari, prohibition, mandamus and habeas corpus. Orleans Parish. No. 270-325.

Denied.


text:
    STATE of Louisiana ex rel. Tyronne FORREST, Sr. v. Honorable Frank SHEA, Judge, Parish of Orleans, Charles C. Foti, Sheriff, Parish of Orleans, State of Louisiana et al.
    No. 80-KH-2894.
    Supreme Court of Louisiana.
    Feb. 6, 1981.
   In re Tyronne Forrest, Sr., applying for remedial writs. Parish of Orleans. No. 269-672.

Denied.


text:
    Ross E. COX v. Claude KIRKPATRICK et al. Ross E. COX v. SOUTHERN COLONIAL INVESTMENT, INC., et al.
    No. 81-C-0265.
    Supreme Court of Louisiana.
    Feb. 6, 1981.
   In re Southern Colonial Investment, Inc., Claude Kirkpatrick and Wayne D. Swenson, Sr., applying for writs of certiorari and stay order. Parish of East Baton Rouge. Nos. 167 and 170.

Granted in part. The suspensive appeal in No. 14,005 is reinstated. The delay for applying for a new trial commenced on March 26,1980 and expired on April 3,1980. The delay for a suspensive appeal commenced on April 4,1980, and relator’s filing of the petition for appeal and furnishing of security on April 29, 1980 timely perfected the suspensive appeal. Otherwise, the writ is denied.


author: DIXON, C. J.,

text:
    STATE of Louisiana v. Melvin MAGEE, Jr.
    No. 80-K-1813.
    Supreme Court of Louisiana.
    Feb. 6, 1981.
   In re State of Louisiana through the District Attorney Harry F. Connick, applying Parish of Orleans. for writ of certiorari. No. 276-845.

Granted. Ruling of trial judge quashing information set aside; case remanded to district court for further proceedings in accordance with law. See State v. Williams, 392 So.2d 448 (La.1980); State v. Johnson, 392 So.2d 448 (La.1980).

DIXON, C. J.,

dissents. U. S. v. Lewis was decided on a question of statutory history and interpretation, not a constitutional question.

CALOGERO and DENNIS, JJ., dissent.


author: WATSON, J.,

text:
    In re Leslie Frank HINTON, applying for Adoption of Sarah Elizabeth Parker and Jonathan Timothy Parker.
    No. 81-C-0043.
    Supreme Court of Louisiana.
    Feb. 6, 1981.
   In re Leslie Frank Hinton, applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit. Parish of Lincoln. No. 14322.

Denied.

DENNIS, J., would grant the writ.

WATSON, J.,

concurs, noting that applicant has the right to reapply if the natural father does not carry out his avowed good intentions.


text:
    LEON McQUEEN LUMBER COMPANY, INC. v. Michael S. BAER, Jr. et al.
    No. 80-C-2722.
    Supreme Court of Louisiana.
    Feb. 6, 1981.
   In re Michael S. Baer, Jr., applying for reconsideration of denied writ of January 9, 1981, 396 So.2d 882, Court of Appeal, First Circuit. Parish of Washington. 391 So.2d 1198.

Not considered. See Sup.Ct. Rule 9, § 6.


text:
    STATE of Louisiana v. Lee S. MATTHEWS.
    No. 81-K-0353.
    Supreme Court of Louisiana.
    Feb. 9, 1981.
   In re Lee S. Matthews, applying for remedial writs, and stay order. Parish of Jefferson. No. 80-3496.

Granted. The trial judge is ordered to set bail within 24 hours. Otherwise, the application is denied.


text:
    SUCCESSION of William E. GRIFFITH.
    No. 81-C-0340.
    Supreme Court of Louisiana.
    Feb. 12, 1981.
   In re Succession of William E. Griffith, applying for writs of certiorari and prohibition. Parish of Jefferson. No. 231-960.

Writ granted. Execution of judgment stayed. Case transferred to court of appeal for expedited disposition of the merits of the issues raised in this application.


text:
    Bernadine B. COCO et al. v. ALLSTATE INSURANCE COMPANY et al.
    No. 80-C-2878.
    Supreme Court of Louisiana.
    Feb. 13, 1981.
   In re Bernadine B. Coco, et al., applying for writ of certiorari, or writ of review, to the Third Circuit, Court of Appeal. Parish of Avoyelles. No. 38121.

Denied.

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


text:
    STATE of Louisiana, Through DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT v. Mattie Belle McDonald GAGNARD et al.
    No. 80-C-2900.
    Supreme Court of Louisiana.
    Feb. 13, 1981.
   In re Mattie Belle McDonald Gagnard, et al., applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Avoyelles. 391 So.2d 91.

Denied.

BLANCHE, J., would grant the writ.


text:
    UNITED GAS PIPE LINE COMPANY v. Arvis E. WHITMAN, Sheriff and Ex-Officio Tax Collector, Bienville Parish.
    No. 80-C-2940.
    Supreme Court of Louisiana.
    Feb. 13, 1981.
   In re Arvis E. Whitman, applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit. 390 So.2d 913.

Denied.

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


text:
    UNITED GAS PIPE LINE COMPANY v. Arvis E. WHITMAN, Sheriff and Ex-Officio Tax Collector, Bienville Parish, Louisiana.
    No. 81-C-6044.
    Supreme Court of Louisiana.
    Feb. 13, 1981.
   In re United Gas Pipe Line Company, applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit. Parish of Bienville. 390 So.2d 913.

Denied.

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


text:
    Becky CUNNINGHAM, as Natural Tutrix of the Minor Children, Chris J. Cunningham and Tina Cunningham, on Behalf of their Father, Joseph E. Cunningham, (Deceased) v. AMERICAN MUTUAL INSURANCE COMPANIES and David Campbell Plumbing Company.
    No. 81-C-0119.
    Supreme Court of Louisiana.
    Feb. 13, 1981.
   In re American Mutual Insurance Companies and David Campbell Plumbing Co., applying for writ of certiorari, to the Court of Appeal, Fourth Circuit. Parish of Jefferson. 390 So.2d 1372.

Denied.


text:
    Julius P. GUEDRY v. FIREMAN’S FUND INSURANCE COMPANY, Robert Thompson, General Cinema Corp., of Louisiana General Cinema Corp., and William Wilson, Jr.
    No. 81-C-0121.
    Supreme Court of Louisiana.
    Feb. 13, 1981.
   In re Julius P. Guedry, applying for writ of certiorari and review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 392 So.2d 165.

Denied.

LEMMON, J., would grant the writ.


text:
    John S. WHITE, Jr. v. A. BOUTTE.
    No. 81-C-0122.
    Supreme Court of Louisiana.
    Feb. 13, 1981.
   In re A. Boutte, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 392 So.2d 124.

Denied.


text:
    Ray H. LEWIS v. TOLEDO NATIONAL INSURANCE COMPANY et al.
    No. 81-C-0124.
    Supreme Court of Louisiana.
    Feb. 13, 1981.
   In re Ray H. Lewis, applying for certiora-ri, or writ of review, to the Court of Appeal, First Circuit. Parish of Tangipahoa. 393 So.2d 362.

Denied.

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


text:
    WRAY WILLIAMS DISPLAY COMPANY OF LOUISIANA v. Jerry FINLEY, Individually, and as Head and Master of the Community Existing between himself and June Finley and June Finley, d/b/a “June’s Apparel”.
    No. 81-C-0126.
    Supreme Court of Louisiana.
    Feb. 13, 1981.
   In re Jerry Finley, applying for certiorari or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 391 So.2d 1253.

Denied.


text:
    JIM OWENS COMPANY, INC. v. John A. MMAHAT et al.
    No. 81-C-0132.
    Supreme Court of Louisiana.
    Feb. 13, 1981.
   In re Executive Office Centers, Inc., applying for writ of certiorari, or review, to the Court of Appeal, Fourth Circuit. Parish of Jefferson. 391 So.2d 6.

Denied. The result is correct.

CALOGERO, J., would grant the writ.


text:
    Ashton NOEL v. Terry DEVILLIER.
    No. 81-C-0134.
    Supreme Court of Louisiana.
    Feb. 13, 1981.
   In re Terry Devillier, applying for certio-rari, or writ of review, to the Court of Appeal, Third Circuit. Parish of St. Landry. 392 So.2d 729.

Writ denied.


text:
    LA SALLE PROPERTIES, INC. v. LOUISIANA POWER & LIGHT COMPANY.
    No. 81-C-0142.
    Supreme Court of Louisiana.
    Feb. 13, 1981.
   In re Louisiana Power & Light Company, applying for writs of certiorari, or review, to the Court of Appeal, Fourth Circuit. Parish of Jefferson. 391 So.2d 574.

Denied.


text:
    MIKE’S SERVICE STATION SUPPLY, INC. v. Daniel E. THIELE, d/b/a Danny’s Automotive Repair.
    No. 81-C-0150.
    Supreme Court of Louisiana.
    Feb. 13, 1981.
   In re Daniel E. Thiele, applying for cer-tiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 391 So.2d 560.

Denied.

MARCUS, J., would grant the writ.


text:
    Marion L. Plaisance, Wife of/and Jacob PLAISANCE v. Levi A. LLOYD and Travelers Insurance Company.
    No. 81-C-0151.
    Supreme Court of Louisiana.
    Feb. 13, 1981.
   In re Levi Lloyd and Travelers Insurance Company, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 391 So.2d 566.

Denied.

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


text:
    John Sheldon TOOMER v. CITY OF LAKE CHARLES et al. John Sheldon TOOMER v. Acton HILLEBRANDT.
    No. 81-C-0153.
    Supreme Court of Louisiana.
    Feb. 13, 1981.
   In re City of Lake Charles, applying for writs of certiorari, and review, to the Court of Appeal, Third Circuit. Parish of Calca-sieu. 392 So.2d 799 and 392 So.2d 794.

Writ denied.

BLANCHE, J., would grant the writ.


text:
    Nita L. LINDNER v. BEER AND LIQUOR AD HOC STUDY COMMITTEE et al.
    No. 81-C-0099.
    Supreme Court of Louisiana.
    Feb. 13, 1981.
   In re Nita Laverdet-Lindner, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 393 So.2d 322.

Granted. For the reasons stated by the trial judge, judgment of the court of appeal is reversed and the judgment of trial judge reinstated. Case remanded for further proceedings.


text:
    Raleigh J. CLEMENTS, Individually and as Administrator of the Estate of Lane Clements and Jeanette Clements v. STATE DEPARTMENT OF HEALTH, SOCIAL & REHABILITATION SERVICES, Division of Charity Hospital of Louisiana in New Orleans.
    No. 81-C-0154.
    Supreme Court of Louisiana.
    Feb. 13, 1981.
   In re Dr. Gary Arnold, Dr. John H. Kuz-man and Employers Mutual Liability Insurance Company, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Orleans Parish. 391 So.2d 66.

Denied.


text:
    Foye L. LOWE, Jr. v. David C. TREEN, Governor.
    No. 81-C-0155.
    Supreme Court of Louisiana.
    Feb. 13, 1981.
   In re Foye L. Lowe, Jr., applying for writs of certiorari, or review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 393 So.2d 459.

Denied.


text:
    Clarence W. FIFE v. MORRISON CAFETERIA COMPANY OF LOUISIANA, INC.
    No. 81-C-0157.
    Supreme Court of Louisiana.
    Feb. 13, 1981.
   In re Clarence Fife, applying for certiora-ri, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 393 So.2d 379.

Denied.


text:
    Margaret Newport, Wife of/and Robert J. SHIRER v. TREADAWAY HOMES, INC.
    No. 81-C-0158.
    Supreme Court of Louisiana.
    Feb. 13, 1981.
   In re Treadaway Homes, Inc., applying for writs of certiorari or review, to the Court of Appeal, Fourth Circuit. Parish of Jefferson. 391 So.2d 562.

Denied.


text:
    Cleveland L. PLAIN v. MOTORS INSURANCE CORPORATION, et al. McINNIS-PETERSON CHEVROLET, INC. v. Cleveland L. and Morris PLAIN.
    No. 81-C-0159.
    Supreme Court of Louisiana.
    Feb. 13, 1981.
   In re Cleveland L. Plain and Morris Plain, applying for certiorari or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 391 So.2d 1249 and 391 So.2d 1251.

Writ denied.

CALOGERO, J., would grant the writ.


text:
    EWING AND SALTER, INC., et al., v. GAFNER AUTOMOTIVE & MACHINE INC., et al.
    No. 81-C-0161.
    Supreme Court of Louisiana.
    Feb. 13, 1981.
   In re Gafner Automotive & Machine, Inc., applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Rapides. 392 So.2d 762.

Denied.

LEMMON, J., would grant the writ.


text:
    Royal J. McGEE v. SEWERAGE & WATER BOARD OF NEW ORLEANS.
    No. 81-C-0262.
    Supreme Court of Louisiana.
    Feb. 13, 1981.
   In re Civil Service Commission of the City of New Orleans, applying for supervisory writs from the Civil Service Commission of New Orleans. No. 1390.

Denied.

BLANCHE, J., would grant the writ.


text:
    STATE of Louisiana ex rel. Gora Douglas WOODEN v. Warden Frank BLACKBURN, Louisiana State Penitentiary.
    No. 80-KH-2053.
    Supreme Court of Louisiana.
    Feb. 13, 1981.
   In re Gora Douglas Wooden, applying for remedial writs. Parish of Bossier. No. 55890.

Writ granted. The trial court is ordered to conduct an evidentiary hearing on claim no. 1 of the petition; otherwise relief is denied.


text:
    STATE of Louisiana ex rel. Charles W. JONES, Jr. v. Warden Frank BLACKBURN, Louisiana State Penitentiary.
    No. 80-KH-2124.
    Supreme Court of Louisiana.
    Feb. 13, 1981.
   In re Charles W. Jones, Jr., applying for writ of habeas corpus. Parish of Jefferson. No. 73-678.

Granted. Sentence set aside because improperly included “without benefit of pardon.” Remanded for resentencing; otherwise denied.

DIXON, C. J., would grant as to Boykin complaint.

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


text:
    STATE of Louisiana ex rel. Angelo MILTON v. Warden Frank BLACKBURN, Louisiana State Penitentiary.
    No. 80-KH-2320.
    Supreme Court of Louisiana.
    Feb. 13, 1981.
   In re Angelo Milton, applying for writs of certiorari, habeas corpus, and mandamus. Parish of Concordia. No. 78-1157.

Granted.


text:
    STATE of Louisiana v. Angelo PIAZZA.
    No. 80-K-2420.
    Supreme Court of Louisiana.
    Feb. 13, 1981.
   In re Angelo Piazza, applying for writs of certiorari, prohibition, and mandamus. Parish of Avoyelles. No. 44037.

Granted.


text:
    STATE of Louisiana ex rel. Bobby R. O’DELL v. CLERK OF COURT, JUDICIAL DISTRICT COURT, PARISH OF CLAIBORNE.
    No. 80-KH-2524.
    Supreme Court of Louisiana.
    Feb. 13, 1981.
   In re Bobby R. O’Dell, applying for writ of mandamus. Parish of Claiborne. Nos. 12646 and 12647.

Granted. Boykin transcript ordered furnished to relator.


text:
    STATE of Louisiana ex rel. Marvin Dale ROY v. Hugh E. BRUNSON, Judge, 15th Judicial District Court, Parish of Acadia, State of Louisiana.
    No. 81-KH-0188.
    Supreme Court of Louisiana.
    Feb. 13, 1981.
   In re Marvin Dale Roy, applying for writ of mandamus. Parish of Acadia.

Granted. The district court is ordered to act on relator’s mandamus petition.


text:
    STATE of Louisiana v. David MALONE.
    No. 81-K-0308.
    Supreme Court of Louisiana.
    Feb. 13, 1981.
   In re David Malone, applying for writ of review, 4th Judicial District Court. Parish of Morehouse. No. 80-2264A.

Granted.


text:
    CITY OF HAMMOND v. Felix PRESLEY.
    No. 80-K-2885.
    Supreme Court of Louisiana.
    Feb. 13, 1981.
   In re Felix Presley, applying for reconsideration of denied writ of January 16, 1981. Tangipahoa Parish. No. 36897.

Not considered.


text:
    STATE of Louisiana ex rel. Reuben TACKNO and Milton Armstead v. Honorable Frank J. SHEA, Judge, Criminal District Court, Section G.
    No. 80-KH-1733.
    Supreme Court of Louisiana.
    Feb. 13, 1981.
   In re Reuben Tackno and Milton Arm-stead, applying for writ of mandamus. Parish of Orleans. No. 249-185.

Application transferred to district court, with order to act on application within ten days.


text:
    STATE of Louisiana ex rel. Tommy Lee CROGIE v. Frank C. BLACKBURN, Warden, Louisiana State Penitentiary and Honorable Charles R. Ward, Judge, Criminal District Court, Section A et al.
    No. 67066.
    Supreme Court of Louisiana.
    Feb. 13, 1981.
   In re Tommy Lee Crogie, applying for supervisory writs of certiorari, mandamus and prohibition, to the Criminal District Court. Nos. (1) 206-570, (2) 206-571, (3) 206-572 and (4) 206-653. Parish of Orleans.

Denied.


text:
    STATE of Louisiana v. Eric Michael Armstrong REID.
    No. 80-K-1467.
    Supreme Court of Louisiana.
    Feb. 13, 1981.
   In re Eric Michael Armstrong Reid, applying for remedial writs. Parish of Orleans. No. 275-822.

Denied.


text:
    STATE of Louisiana ex rel. Willie WILLIAMS v. Honorable Matthew BRANIFF, Criminal District Court, Section B.
    No. 80-KH-1731.
    Supreme Court of Louisiana.
    Feb. 13, 1981.
   In re Willie Williams, applying for writ of mandamus. Parish of Orleans. No. 234-317.

Writ denied. Moot.


text:
    STATE of Louisiana ex rel. John KOWALEC v. STATE of Louisiana.
    No. 80-KH-2274.
    Supreme Court of Louisiana.
    Feb. 13, 1981.
   In re John Kowalec, applying for writ of mandamus. Parish of East Baton Rouge. No. 235-857.

Denied.


text:
    STATE of Louisiana v. Vernell J. NELSON.
    No. 80-K-2283.
    Supreme Court of Louisiana.
    Feb. 13, 1981.
   In re Vernell J. Nelson, applying for writ of certiorari. Parish of Orleans. No. 268-770.

Denied.


text:
    STATE of Louisiana ex rel. Harold J. VINCENT v. Donald M. PERKINS, Clerk, 30th Judicial District Court, Parish of Vernon.
    No. 80-KH-2323.
    Supreme Court of Louisiana.
    Feb. 13, 1981.
   In re Harold J. Vincent, applying for writ of mandamus and/or remedial writs. Parish of Vernon. No. 32148.

Denied.


text:
    STATE of Louisiana ex rel. Garland Wayne WHITE v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 80-KH-2377.
    Supreme Court of Louisiana.
    Feb. 13, 1981.
   In re Garland Wayne White, applying for writ of habeas corpus. Ouachita Parish. No. 35560.

Denied.


text:
    STATE of Louisiana ex rel. Bernard HARRIS v. STATE of Louisiana.
    No. 80-KH-2392.
    Supreme Court of Louisiana.
    Feb. 13, 1981.
   In re Bernard Harris, applying for writ of habeas corpus. Parish of Orleans. No. 251-485.

Denied.


text:
    STATE of Louisiana ex rel. James TYLER v. Charles FOTI, Jr. Sheriff, Orleans Parish.
    No. 80-KH-2426.
    Supreme Court of Louisiana.
    Feb. 13, 1981.
   In re James Tyler, applying for remedial writs and habeas corpus. Parish of Orleans. No. 266-494.

Denied.


text:
    STATE of Louisiana ex rel., Larry Lee YOUNG v. STATE of Louisiana.
    No. 80-KH-2427.
    Supreme Court of Louisiana.
    Feb. 13, 1981.
   In re Larry Lee Young, applying for writs of certiorari, prohibition, and mandamus. Parish of Caddo. No. 68501.

Denied.


text:
    STATE of Louisiana ex rel., Billy Wayne SINCLAIR v. Mike CANNON, Clerk of Court 19th Judicial District Court.
    No. 80-KH-2438.
    Supreme Court of Louisiana.
    Feb. 13, 1981.
   In re Billy Wayne Sinclair, applying for writ of mandamus and remedial writs. Parish of East Baton Rouge. No. 54969.

Denied.

BLANCHE, J., recused.


text:
    STATE of Louisiana ex rel., Albert BERNARD v. CRIMINAL DISTRICT COURT, PARISH OF ORLEANS.
    No. 80-KH-2449.
    Supreme Court of Louisiana.
    Feb. 13, 1981.
   In re Albert Bernard, applying for writ of mandamus. Parish of Orleans. No. 268-045.

Writ denied. Moot.


text:
    STATE of Louisiana ex rel., Jerry T. ALEXANDER v. Frank C. BLACKBURN, et al., Warden, Louisiana State Penitentiary.
    No. 80-K-2460.
    Supreme Court of Louisiana.
    Feb. 13, 1981.
   In re Jerry Alexander, -applying for writ of certiorari. Parish of Orleans. No. 253-940.

Denied.


text:
    STATE of Louisiana ex rel., Aaron DELANEY v. Warden Frank BLACKBURN, Louisiana State Penitentiary.
    No. 80-KH-2474.
    Supreme Court of Louisiana.
    Feb. 13, 1981.
   In re Aaron Delaney, applying for writs of certiorari, prohibition, mandamus and habeas corpus. Parish of Orleans.

Denied.

DENNIS, J., would grant an evidentiary hearing.


text:
    STATE of Louisiana ex rel., Eli J. GUILLORY v. 15TH JUDICIAL DISTRICT COURT ATTORNEY, Kenneth O. Privat, State of Louisiana.
    No. 80-KH-2476.
    Supreme Court of Louisiana.
    Feb. 13, 1981.
   In re Eli J. Guillory, applying for writ of mandamus. Parish of Acadia. No. 32109.

Denied.


text:
    STATE of Louisiana ex rel., J. P. McELROY, Jr. v. CLERK OF COURT, THIRD JUDICIAL DISTRICT, Honorable Fred W. Jones, Jr. and Attorney Joseph A. Cusimano, Jr., State of Louisiana.
    No. 80-KH-2477.
    Supreme Court of Louisiana.
    Feb. 13, 1981.
   In re J. P. McElroy applying for writ of certiorari. Parish of Union. No. 21824.

Denied.


text:
    STATE of Louisiana ex rel., Melvin BUJOL v. STATE of Louisiana.
    No. 80-KH-2496.
    Supreme Court of Louisiana.
    Feb. 13, 1981.
   In re Melvin Bujol, applying for writ of certiorari. Parish of Orleans. No. 255-381.

Denied.


text:
    STATE of Louisiana ex rel., Thomas Mitchell EMRY v. Frank C. BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 80-KH-2510.
    Supreme Court of Louisiana.
    Feb. 13, 1981.
   In re Thomas Mitchell Emry, applying for remedial writs. Parish of Calcasieu. Nos. 65728 and 65729.

Denied.


text:
    STATE of Louisiana ex rel., Isiah SMITH v. Warden Frank BLACKBURN, Louisiana State Penitentiary.
    No. 80-KH-2511.
    Supreme Court of Louisiana.
    Feb. 13, 1981.
   In re Isiah Smith, applying for writs of habeas corpus, and certiorari. Parish of Orleans. Nos. 243-278 and 245-647.

Denied.


text:
    STATE of Louisiana ex rel., John L. ROBERTS, Sr. v. Frank C. BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 80-KH-2512.
    Supreme Court of Louisiana.
    Feb. 13, 1981.
   In re John L. Roberts, Sr., applying for writ of habeas corpus. Parish of Tangipa-hoa. No. 66-026.

Denied.


text:
    STATE of Louisiana ex rel., Jory WALTON v. STATE of Louisiana.
    No. 80-KH-2552.
    Supreme Court of Louisiana.
    Feb. 13, 1981.
   In re Jory Walton, applying for remedial writs. Parish of Jefferson. No. 77-712.

Denied.


text:
    STATE of Louisiana v. Betty SMITH et al.
    No. 80-K-2809.
    Supreme Court of Louisiana.
    Feb. 13, 1981.
   In re State of Louisiana, applying for writ of certiorari. Parish of Orleans. No. 278-165.

Denied.


text:
    STATE of Louisiana v. Joseph BANKS and Newt Martin.
    No. 80-K-2862.
    Supreme Court of Louisiana.
    Feb. 13, 1981.
   In re Joseph Banks and Newt Martin, applying for remedial writs. Parish of West Feliciana. No. 7165.

Denied.

DENNIS, J., would grant on the constitutional issue.


text:
    STATE of Louisiana ex rel., Lee HORTON v. Warden Ross MAGGIO, Jr., Hunt Correctional Center.
    No. 80-KH-2920.
    Supreme Court of Louisiana.
    Feb. 13, 1981.
   In re Lee Horton, applying for writ of mandamus. Parish of Iberville.

Denied. Moot.


text:
    STATE of Louisiana ex rel., Antonio JAMES v. ORLEANS INDIGENT DEFENDER PROGRAM.
    No. 81-KH-0021.
    Supreme Court of Louisiana.
    Feb. 13, 1981.
   Antonio James, applying for remedial writs. Parish of Orleans. No. 268-688.

Denied.


text:
    STATE of Louisiana ex rel., Lionel JENKINS v. STATE of Louisiana.
    No. 81-KH-0037.
    Supreme Court of Louisiana.
    Feb. 13, 1981.
   In re Lionel Jenkins, applying for remedial writ. Parish of Orleans. No. 67744.

Denied. Application is moot.


text:
    STATE of Louisiana ex rel., Ronald H. LITTLE v. ORLEANS INDIGENT DEFENDER PROGRAM.
    No. 81-KH-0039.
    Supreme Court of Louisiana.
    Feb. 13, 1981.
   In re Ronald H. Little, applying for remedial writ. Parish of Orleans. No. 268-040.

Writ denied. Moot.


text:
    STATE of Louisiana ex rel., Quentin REED v. ORLEANS INDIGENT DEFENDER PROGRAM.
    No. 81-KH-0081.
    Supreme Court of Louisiana.
    Feb. 13, 1981.
   In re Quentin Reed, applying for remedial writ. Parish of Orleans. No. 274-041.

Writ denied. Moot.

5


text:
    STATE of Louisiana ex rel., Tebbe ARBO v. STATE of Louisiana.
    No. 81-KH-0082.
    Supreme Court of Louisiana.
    Feb. 13, 1981.
   In re Tebbe Arbo, applying for remedial writs. Parish of Orleans. No. 268-124.

Denied. All needed documents from this court have been furnished.


text:
    STATE of Louisiana v. Frank C. FEEBACK and Irma Jean Wilhite.
    No. 81-K-0106.
    Supreme Court of Louisiana.
    Feb. 13, 1981.
   In re Frank C. Feeback and Irma Jean Wilhite applying for remedial writs of cer-tiorari, and review. Parish of Ouachita. Nos. 41470 and 38942.

Denied.

CALOGERO, and DENNIS, JJ., would grant the writ as to assignment # 1.


text:
    STATE of Louisiana v. John J. FEEBACK, Jr.
    No. 81-K-0136.
    Supreme Court of Louisiana.
    Feb. 13, 1981.
   In re John J. Feeback, Jr. applying for remedial writs of certiorari and. review. Parish of Ouachita. No. 39663.

Denied.


text:
    STATE of Louisiana ex rel., Clarence RANDOLPH et al. v. Sheriff Charles C. FOTI, Jr.; Chief Administrator, Rudolph Belisle; Chief Deputy, Lislie Bonanno et al.
    No. 80-KH-2961.
    Supreme Court of Louisiana.
    Feb. 13, 1981.
   In re Clarence Randolph, et al., applying for writs of prohibition and mandamus. Parish of Orleans.

Denied.


text:
    STATE of Louisiana v. William McCRAE.
    No. 81-K-0176.
    Supreme Court of Louisiana.
    Feb. 13, 1981.
   In re William McCrae, applying for writs of certiorari, or review. Parish of Jefferson. No. 77-1366.

Denied.

WATSON, J., would grant the writ.


text:
    STATE of Louisiana ex rel., Craig E. WHITT v. Charles C. FOTI, Jr., Criminal Sheriff for the Parish of Orleans.
    No. 81-KH-0205.
    Supreme Court of Louisiana.
    Feb. 13, 1981.
   In re Craig E. Whitt, applying for writ of habeas corpus. Parish of Orleans.

Writ denied.


text:
    STATE of Louisiana ex rel., Tommy PORTER v. Charles FOTI, Sheriff, Parish of Orleans.
    No. 81-KH-0207.
    Supreme Court of Louisiana.
    Feb. 13, 1981.
   In re Tommy Porter, applying for remedial writ. Parish of Orleans.

tiatiíaH


text:
    STATE of Louisiana ex rel., Steven Ray HUNTSBERRY v. Euda DELCAMBRE, Warden.
    No. 81-KH-0281.
    Supreme Court of Louisiana.
    Feb. 13, 1981.
   In re Steven Ray Huntsberry, applying for remedial writ. Parish of Vermillion. No. 22153.

Writ denied. Petitioner has an appeal pending in this Court.


text:
    STATE of Louisiana v. Alejandro LAINEZ.
    No. 81-K-0285.
    Supreme Court of Louisiana.
    Feb. 13, 1981.
   In re Alejandro Lainez, applying for writs of certiorari, prohibition, mandamus, and a stay order. Parish of Jefferson. No. 80-2983.

Denied.


text:
    Jerry H. SCHWAB, Robert L. Morris, Laura H. Morris, Merrick Dugal, Jr., Norman J. Claverie, Beulah G. King Claverie and Tracy L. Rhodes v. Robert E. KELTON and Claudia Gordon Kelton.
    No. 81-C-0323.
    Supreme Court of Louisiana.
    Feb. 13, 1981.
   In re Robert E. Kelton and Claudia G. Kelton, applying for supervisory writs. Parish of Terrebonne. No. 62541.

Denied.

DENNIS and WATSON, JJ., would grant the writ and a suspensive appeal.


text:
    STATE of Louisiana v. Maurice DIGGS.
    No. 81-K-0342.
    Supreme Court of Louisiana.
    Feb. 13, 1981.
   In re Maurice Diggs, applying for remedial writs and stay order. Parish of Orleans. No. 269-958.

Denied.


text:
    STATE of Louisiana v. Michael WATSON.
    No. 80-KA-1966.
    Supreme Court of Louisiana.
    Feb. 16, 1981.
   In re Michael Watson, motion to have argument heard by and decision rendered by the members of the Honorable Supreme Court, State of Louisiana. Parish of East Baton Rouge.

Denied. See State v. Bell, La., 395 So.2d 805 and State v. Claibon, La., 395 So.2d 770.


text:
    STATE of Louisiana v. James EDWARDS and Edward Cook.
    No. 81-K-0443.
    Supreme Court of Louisiana.
    Feb. 18, 1981.
   In re James Edwards and Edward Cook, applying for stay order. Jefferson Parish. No. 80-2470.

On the showing made, stay denied. Adequate remedy by review in the event of conviction.


text:
    STATE of Louisiana v. Noel D. YAMBO, Ricardo Torres and William D. Yambo.
    No. 81-K-0458.
    Supreme Court of Louisiana.
    Feb. 19, 1981.
   In re Noel D. Yambo, Ricardo Torres and William D. Yambo, applying for writs of habeas corpus, remedial writs and stay order. Parish of Jefferson. No. 81-374.

Writ granted in part. The trial court is ordered to hold preliminary hearings and bail hearings for Ricardo Torres and William Yambo not later than February 26, 1981; the state is ordered to respond to the application of Noel Yambo not later than February 24, 1981.


text:
    STATE of Louisiana v. Frank C. FEEBACK and Irma Jean Wilhite.
    No. 81-K-0473.
    Supreme Court of Louisiana.
    Feb. 23, 1981.
   In re Frank C. Feeback and Irma Jean Wilhite, applying for stay of execution of sentence. Ouachita Parish. No. M:41470.

Execution of sentence stayed until after the ruling of the trial judge on the hearing of the motion to stay execution, now fixed for February 25, 1981.


text:
    STATE of Louisiana v. Frank C. FEEBACK and Irma Jean Wilhite.
    No. 81-K-0473.
    Supreme Court of Louisiana.
    Feb. 26, 1981.
   In re Frank C. Feeback and Irma Jean Wilhite, applying for stay or execution of sentence. Ouachita Parish. No. M:41470.

Granted. Relators are ordered released and execution of sentence is stayed until March 9, 1981.


text:
    STATE of Louisiana v. Noel D. YAMBO, Ricardo Torres and William D. Yambo.
    No. 81-K-0458.
    Supreme Court of Louisiana.
    Feb. 26, 1981.
   In re Noel D. Yambo, Ricardo Torres and William D. Yambo, applying for writs of habeas corpus and remedial writs and stay order. Parish of Jefferson. No. 81-374.

Writ denied as to Noel Yambo.


text:
    STATE of Louisiana v. Earl J. PIERRE.
    No. 81-K-0355.
    Supreme Court of Louisiana.
    Feb. 26, 1981.
   In re Earl J. Pierre, applying for writs of certiorari, and stay order. Parish of Orleans. No. 279-846.

Denied.


text:
    STATE of Louisiana v. CHAPMAN DODGE CENTER, INC., John L. Swindle and Donald Barrett.
    No. 81-K-0407.
    Supreme Court of Louisiana.
    Feb. 27, 1981.
   In re Judge Doug Moreau, request for clarification of February 20, 1981, Order of this Court. Parish of East Baton Rouge. Nos. 11-80-45, 11-80-46.

Denied.


author: WATKINS, Judge.

text:
    Shirley PENOUILH v. Norman R. CRAIN et al.
    No. 13441.
    Court of Appeal of Louisiana, First Circuit.
    June 9, 1980.
    Roy Maughan, Baton Rouge, for Shirley Penouilh.
    Frank M. Coates, Jr., Baton Rouge, for Norman R. Crain and Cumis Insurance Society, Inc.
    Before EDWARDS, LEAR and WATKINS, JJ.
   WATKINS, Judge.

This is an action to recover damages for personal (psychological) injuries and attendant loss of wages resulting from an automobile collision in which Mrs. Shirley Pe-nouilh’s (appellant) automobile was totally destroyed upon collision with Norman R. Crain’s (appellee) automobile. Also appel-lee is Cumis Insurance Society, Inc., Mr. Crain’s insurer. The trial court awarded judgment in favor of plaintiff against the defendants, Norman R. Crain and his insurer, Cumis Insurance Society, Inc., in the amount of $814.00 plus legal interest and costs. Cumis had previously paid the property damages to plaintiff’s vehicle. The sum awarded represented pain and suffering during the initial time off ($500.00), lost wages of $128.00 for November 8,9,10, and 16, 1979, and rental of an automobile ($172.14). These total $800.14 and the rendition of judgment for $814.00 was apparently a typographical error. The trial court denied recovery for damages alleged for Mrs. Penouilh’s “neurosis” (or psychosis), loss of wages subsequent to November 16, 1979, and expenses of psychiatric treatment by her treating psychiatrist including costs of examination of Mrs. Penouilh for her mental complaint at Doctors Hospital.

The automobile collision took place on November 8, 1977. There appears to have been no dispute that Mr. Crain was at fault. The sole issue oh appeal is whether plaintiff’s post-accident onset of psychosis was caused by subject automobile accident.

Before the accident, Mrs. Penouilh had a history of difficulty in interpersonal relationships; she was a “loner.” She was a licensed practical nurse at Our Lady of the Lake Hospital. She had converted from part-time to full-time work some months or possibly a year before the accident, and was performing satisfactorily. After the accident she worked only briefly, partly because of her inability to get to work because her car was a total loss, and she had no other suitable means of transportation. She began to develop marked psychological symptoms, which her daughter, who was a registered nurse, recognized. Her son and daughter saw that she visited and was treated by a psychiatrist in Baton Rouge, Dr. Louis Cenac.

Mrs. Penouilh became afraid to get out of bed, or to get out of her car. She thought people were spying on her. She became obsessed with color. She stopped paying her bills.

Dr. Cenac testified that her psychological difficulties were brought on by her inability to work which resulted from the accident. He diagnosed her condition as involutional melancholia, a form of psychosis, occasionally found in women of late middle age. He had her examined for several days at Doctors Hospital, and then saw her regularly on office visits. He placed her on tranquilizers and then, when she began to pull out of her mental illness, she became depressed, and he changed the type of tranquilizer and placed her on an antidepressant. He did not think Mrs. Penouilh was employable until three or four months before the trial (August 15, 1979).

The trial court found Dr. Cenac to be “most candid and forthright”, but did not think that sufficient connexity had been established between the accident and the psychosis. We disagree. Dr. Cenac was an expert in the field of psychiatry. He interviewed not only the children, but Mrs. Pe-nouilh herself on numerous occasions. He reached the conclusion that Mrs. Penouilh’s psychosis resulted from the accident, no doubt, upon the basis of his interviews with all parties, including Mrs. Penouilh, and upon the basis of his expert knowledge in the field of psychiatry.

Dr. Cenac’s testimony is unchallenged by testimony to the contrary. The trial court notes in its reasons for judgment that two of plaintiff’s children were not called as witnesses. Plaintiff’s son, Gary Penouilh, testified at length, and there is nothing in the record or from the circumstances of this case that would lead this court to believe anything but that the testimony of the other two children would have been corroborative of Gary’s and cumulative. However, plaintiff is only required to prove her case by a preponderance of the evidence. No unfavorable inference attaches to her failure to call additional witnesses. Delafosse v. Industrial Painters, Inc., 199 So.2d 559 (La.App. 3rd Cir. 1967). We, therefore, find that a causal connection between the accident and the psychosis has been proven. Kline v. Columbia Casualty Co. et al., 155 So.2d 82 (La.App. 2nd Cir. 1963); Miller v. Allstate Ins. Co. et al., 221 So.2d 908 (La.App. 1st Cir. 1969); Slayton v. Grant, 248 So.2d 16 (La.App. 1st Cir. 1971).

The manifest error rule does not apply to the situation presented in the present case. It will be remembered that the trial court was impressed by Dr. Cenac’s demeanor as a witness. On the probative value of testimony, as opposed to the credibility of witnesses, the findings of the trial court will not be taken as conclusive. The question in the present case relates to the preponderance of the evidence, rather than to the credibility of witnesses. See Blue Streak Enterprises v. Cherrie, 263 So.2d 734 (La.App. 4th Cir. 1972). As we find that Mrs. Penouilh has proved psychological injury from the accident by a preponderance of the evidence, we find that she is entitled to damages as follows:

Rental of automobile $ 172.14
Drug expenses 360.00
Travel expense to Dr. Cenac’s office 86.40
Doctors Memorial Hospital 408.10
Dr. Louis Cenac 360.00
Lost wages for November 8, 9,10, and 16,1977 128.00
Lost wages for December 1977-April 1979 (14 mos. or 68 wks.
@ $157.48 per wk. less credit as seamstress of $650) 10,058.64
Pain and suffering resulting from mental illness 15,000.00
TOTAL $26,573.14

The judgment of the trial court is amended to award Mrs. Shirley Penouilh the sum of $26,578.14, with legal interest from date of judicial demand, all costs in this court and in the trial court to be paid by appel-lees.

AMENDED AND AFFIRMED.


text:
    Thomas F. GLOVER d/b/a Glover’s Realty Company v. Ron HANKS and Charles Dennis.
    No. 13519.
    Court of Appeal of Louisiana, First Circuit.
    July 7, 1980.
    H. Sanders O’Neal, Houma, for plaintiff and appellant.
    John T. Pettigrew, Houma, for defendant and appellee.
    Before EDWARDS, LEAR and WATKINS, JJ.
   WATKINS, Judge.

The present action was originally an action to obtain the sequestration of the property of defendants Hanks and Dennis which was located adjacent to or within a trailer which was leased by plaintiff to defendants. It was alleged that defendants were delinquent in paying their rent. The petition was later amended to seek eviction of defendants. Defendants reconvened seeking damages for wrongful sequestration of their goods. The trial court lifted the writ of sequestration that had been issued, and awarded each defendant $750.00 in damages and, together, $500.00 attorneys’ fees. We affirm except with regard to the award of damages to Hanks.

Defendants contend that a verbal agreement was reached between plaintiff and defendants whereby defendants were permitted to pay the rent when they returned from offshore work although this may have been some time later than the time the rent was due. The rent was to be paid in advance. It was further contended that plaintiff and defendants reached an informal, unstated agreement whereby rent could be paid late, and that a pattern of late payment was established which evidenced plaintiff’s acquiescence in this arrangement. The following schedule is pertinent:

COTE PAYMENT RECEIVED PERICO COVERED TIME OP SEQUQCE WHEN • DUE
September 27, 1978 Sept. 27 to Oct. 27, 1978 on time
Novorber 14, 1978 Oct. 27 to Not. 27, 1978 19 days late
Novenber 27, 1978 Not. 27 to Dec. 27, 1978 on time
January 19, 1979 Dec. 27 to Jan. 27, 1979 24 days late
February 2, 1979 Jan. 27 to Feb. 27, 1979 7 days late
February 28, 1979 Feb. 27 to March 27, 1979 1 day late
March 20, 1979 March 27 to April 27, 1979 7 days early

We have carefully reviewed the record and exhibits, and we find that it is unnecessary to pass upon defendants’ first contention that it was agreed that the rent would be paid when they returned from offshore work, because it is quite clear from the schedule quoted above that an informal acquiescence or agreement was reached with plaintiff that the rent could be paid late each month, within a reasonable time. It has been held that where the lessor customarily accepts rentals after the day on which they are due there is a custom of acquiescence of the parties which has the effect of altering the original contract in respect to punctuality of rental payments. See Himbola Manor Apts. v. Allen, 315 So.2d 790 (La.App. 3rd Cir. 1975). The last rental payment was due on April 27, 1979. Plaintiff filed suit on May 10, 1979. Thus, plaintiff allowed defendants only 13 days in which to pay the rent before seeking to obtain a writ of sequestration. We note that earlier on one occasion the rent payment was 19 days late and on another occasion 24 days late. It may, therefore, be seen that the payment of the rent in the present case was not delayed beyond the time agreed upon by the voluntary acquiescence of plaintiff.

With regard to defendants’ recon-ventional demand for wrongful issuance of the writ of sequestration, we note that compensatory damages can be awarded for wrongful issuance of a writ of attachment or sequestration although no malice is shown. General Motors Acceptance Corp. v. Sneed, 167 La. 432, 119 So. 417 (1929); American Steel Bldg. Co. v. Brezner, 158 So.2d 623 (La.App. 3rd Cir. 1963); cf. C.C.P. art. 3506. In this case, as the writ of sequestration was wrongfully issued, the rent not being past due, defendants would be entitled to compensatory damages, which were awarded. However, Hanks testified that the Cadillac automobile which was the sole object seized under the writ of sequestration belonged to Dennis and not to him. Thus, Hanks is clearly not entitled to damages; only Dennis is entitled to damages. We do not find an award of $500.00 for attorney’s fees for representing Dennis alone to be excessive, although no attorney’s fees are awardable for counsel’s representation of Hanks.

The judgment of the trial court is affirmed in all respects, except in awarding $750.00 to Hanks.

AFFIRMED IN PART, REVERSED IN PART.


author: SWIFT, Judge.

text:
    Charles R. CASSIDY et al., Plaintiffs-Appellees, v. BILLY M CORPORATION, Defendant-Appellant.
    No. 8013.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 4, 1981.
    Rehearing Denied March 23, 1981.
    Writ Denied May 18, 1981.
    Edwards, Stefanski & Barousse, Homer E. Barousse, Jr., Crowley, for defendant-appellant.
    Pucheu & Pucheu & Pucheu, John H. Pucheu, Eunice, Cassidy & Millican, Charles R. Cassidy, Jennings, for plaintiffs-appel-lees.
    Before FORET, SWIFT and DOUCET, JJ.
   SWIFT, Judge.

The defendant has appealed a decision of the trial court awarding the plaintiffs damages allegedly sustained from defendant’s threat to seek an injunction to prevent a competitor from constructing a building on property the latter leased from the plaintiffs.

The plaintiffs (Fontenot Heirs) are owners of a certain 20-acre tract of land in Jennings, Louisiana. On August 12, 1976, they entered into a ground lease of 9.5 acres thereof, the lessee being the Singer Housing Company (Singer), doing business as the Mitchell Company, a developer. The lease provided, inter alia, that the lessee could sublease the land and if the sublessor defaulted the sublessee could maintain the lease by complying with its terms and paying the rent to the lessors, the landowners.

This lease was assigned on January 31, 1977, to Mayer Mitchell, et al. (Mitchell), who on February 16,1977, subleased to the Billy M Corporation (Billy M) a small portion of the leased property. The sublease provided that Mitchell would not grant a lease to any other person engaged in the hamburger fast food restaurant business within a radius of 4000 feet of the premises except with the consent of Billy M. The latter is engaged in this type of business.

On March 8, 1977, the plaintiff landowners, Mitchell and Billy M executed an instrument styled an “ATTORNMENT AND NON-DISTURBANCE AGREEMENT.” It provided that the plaintiffs consented to and approved the sublease of February 16, 1977, and that:

“3. LESSEE and TENANT agree with OWNER that they will perform and comply with all terms, covenants and conditions of the sublease which are binding upon them respectively.”

On March 30, 1977, the Fontenot Heirs leased to the McDonald’s Corporation (McDonald’s), a fast food hamburger chain, a small tract in that part of its twenty-acres not included in the 1976 lease to Singer that was assigned to Mitchell but within a radius of 4000 feet of the tract subleased by Billy M. This lease stipulated a primary term of twenty years and rentals during such period of $188,500.00. Title was warranted and the lease further provided that the lessee would timely apply for title insurance. If any defects in title were found the lessor had 60 days to cure same. If the defects were not so cured the lessee, at its option, could terminate the lease and all rentals theretofore paid would be returned.

On April 27,1977, an attorney for Billy M wrote a letter to plaintiffs stating that in the March 8, 1977, instrument they had consented to Billy M’s sublease and agreed to be bound by its terms, one of which prohibited leasing to a competitor. The letter further stated:

“It has come to our attention that you and others have negotiated with McDonald’s to open one of its restaurants within 1,200 feet of the Burger Chef premises. I consider this to be a direct violation of the agreements that have been reached and I have advised my client that it is entitled to injunctive relief to prevent the construction of a McDonald’s restaurant at the site contemplated. Please be advised accordingly and let me know the intentions of the landowners under these circumstances.”

The plaintiffs’ counsel replied on May 4, 1977, saying in part:

“On March 8, 1977, the owners did execute an Attornment Agreement with the ground lessee and Billy M. Corporation, wherein it was recited that the owners are ‘... willing to consent to the sublease, and to approve the terms, covenants and conditions thereof, ... ’. This provision does not bind the owners on lands owned by them, not covered under the Ground Lease.
“In addition, the agreement provided that the sublease would become a lease between owners and tenant only in the event of termination of the Ground Lease.
“The owners have completed negotiations with McDonald’s on property not covered under the Ground Lease. However, the threat of litigation by your client has placed the completion of the McDonald lease in jeopardy. Therefore, your client is requested to withdraw the threat of litigation within five (5) days from your receipt of this letter.
“If the threat of litigation is not withdrawn and the owners do not consummate the lease with McDonald’s because of the threat, then the owners will have no alternative but to institute suit against your client for the loss of profits from the McDonald lease in the amount of $188,500.00.”

In a subsequent letter the time for filing suit was extended. On May 31, 1977, counsel for defendant replied stating that as the lease with McDonald’s had been executed:

“We have no choice but to inform you that a suit for injunctive relief to prohibit the construction of a McDonald’s restaurant at the site contemplated will be filed just as soon as the pleadings can be prepared.”

When the Pioneer Title Insurance Company was informed of this correspondence it declined to issue a title policy because of the threat of litigation. On June 30, 1977, McDonald’s terminated the lease. Billy M did not institute a suit for such injunctive relief, but the threat of litigation was never withdrawn.

On October 27, 1977, the Fontenot Heirs filed a petition for a declaratory judgment against Billy M et al. to ascertain whether or not the attornment and non-disturbance agreement prohibited plaintiffs from leasing the remainder of their property to a competitor of Billy M. It was held therein that plaintiffs were not bound to the provisions of the sublease until such time as Mitchell should default on their original lease. Cassidy v. Billy M Corp., 365 So.2d 520 (La.App. 3 Cir. 1978).

On April 25, 1978, the Fontenot Heirs filed the instant suit. The petition generally set forth the facts hereinabove mentioned and also:

“That the loss of the McDonald’s lease was solely and proximately caused by the fault of the defendant, Billy M Corporation, in the following non-exclusive particulars:
“1. In wilfully and knowingly threatening litigation to enjoin the construction of a McDonald’s Restaurant on the leased premises when it had no right to so do.
“2. In misinterpreting the affect (sic) of an Attornment and Nondisturbance Agreement and in threatening to enjoin the construction of a McDonald’s Restaurant on the leased premises based on this misinterpretation.
“3. In threatening litigation when it had no contractual basis to so do.
“4. In refusing to withdraw the threat of litigation upon request and demand by petitioners after being informed of the possible consequences of the threat of litigation.
“10.
“Petitioners itemize their damages as follows:
“1. Rent due under the terms of the lease with McDonald’s Corporation. $188,500.00
“2. Future loss of revenue in the form of tenants with regard to the North 680' of the tract of land described in paragraph one (1) of this petition because of the loss of McDonald’s Corporation as a tenant. 8500.000.00
“TOTAL $688,500.00”

In a supplemental and amending petition violations by defendant of the Louisiana Unfair Trade Practices and Consumer Protection Laws were alleged and the plaintiffs prayed for an additional $150,000.00 as attorneys fees.

The trial judge awarded the plaintiff $188,500.00 as the loss of rentals under the lease terminated by McDonald’s, basing his decision on that part of Article 2315 of the Louisiana Civil Code providing: “Every act whatever of men that causes damage to another obliges him by whose fault it happened to repair it.” He rejected the demand for attorney’s fees concluding that the defendant had not used an act or practice declared unlawful by R.S. 51:1405. We reverse the damage award.

Article 2315 obviously does not impose liability for all acts of parties, but only those which are caused through fault. Generally, this includes damages caused by the wilful harming of another or the negligent harming of another. Stone, Louisiana Tort Doctrine, §§ 59, 81. Strict liability results without fault under certain facts, none of which are present here.

In this instance it is clear from the deposition of William H. Michot, the president and sole stockholder of Billy M, that he believed the attornment agreement prohibited the Fontenot Heirs from leasing to a competitor any of their land within 4,000 feet of Billy M’s subleased premises and also that he relied on his attorney’s advice in this respect. Consequently, it cannot be said that Mr. Michot wilfully intended harm to the plaintiffs when he threatened to sue to protect what he considered to be a legal right of his company.

Nor do we think it has been established that the Fontenot Heirs were negligently harmed by Michot’s actions. He believed that his company was protected by the disputed provision of the attornment instrument and sought and relied on his attorney’s opinion in this respect. Neither was in bad faith. The issue had not been previously litigated and it matters not that it was subsequently decided in a declaratory judgment action instituted by plaintiffs that they were not bound by the conditions contained in the sublease until there was a default or termination of the original lease.

We do not find any authorization in Louisiana for a recovery of damages under these particular circumstances. In our opinion justice dictates that we see to it that our citizens have free and unhindered access to the courts to resolve their differences and disputes when in good faith.

In his treatise, The Law of Torts, 4th Ed., §§ 129, 944, Professor William L. Prosser mentions a privilege to interfere with contractual relations of another and says:

“Where the defendant acts to further his own advantage, other distinctions have been made. If he has a present, existing economic interest to protect, such as the ownership or condition of property, or a prior contract of his own, or a financial interest in the affairs of the person persuaded, he is privileged to prevent performance of the contract of another which threatens it; and for obvious reasons of policy he is likewise privileged to assert an honest claim, or bring or threaten a suit in good faith, to exercise the right of petition to public authorities, or to settle his own case out of court. (Emphasis added.)
“But where his interest is merely one of prospective advantage, not yet realized, he has no such privilege. * * * ”

The defendant in the present case definitely had an existing economic interest to protect. And it must be remembered too that inducing breach of contract without use of fraudulent or malicious means is not actionable in this state.

Plaintiffs-appellees contend that the companion cases of Reynolds v. Egan, 123 La. 294, 48 So. 940 (La.1909) and Egan v. Hotel Grünewald Company, 129 La. 163, 55 So. 750 (La.1911), are applicable. In these cases Hotel Grünewald undertook certain construction on its property and as a result of the excavation and pile driving the adjacent property of Egan became uninhabitable and unleaseable. Reynolds, the tenant, sued landlord Egan and obtained a judgment cancelling the lease. Egan then sued Hotel Grünewald for the loss of the rentals caused by the actions of the hotel’s contractor. The supreme court entered a judgment of non-suit because of the lack of testimony as to the amount of rent lost. However, it said that the claim for loss of rent was “well-founded.” The court obviously found that the acts of the hotel’s contractor were trespasses and tortious.

The same is true of the conduct of defendant in the case of Sandlin v. Coyle, 143 La. 121, 78 So. 261 (La.1918), wherein the defendants were held liable under Article 2316 of the Louisiana Civil Code for frightening away the plaintiff's tenant and causing a loss of rent. The defendants went on the plaintiff’s property to whip the tenant, a black man, for failing to pay a debt owed one of them. The tenant fled for safety and as a result the plaintiff lost his rentals. The court said:

“In this state laws have been passed and courts have been established that individual disputes might be settled without resorting to violence and when defendants violated the law, invaded plaintiff’s property, unlawfully sought to injure plaintiff’s tenants, drove him off the place, and damaged plaintiff, they must repair the damage.”

Thus, it is clear that the acts of defendants were unlawful and tortious.

Sandlin was cited in Carson v. Stephens, 14 La.App. 272, 129 So. 381 (2 Cir. 1930), in which damages were allowed when the plaintiff was advised by one Gladney not to proceed with their building contract. The court said the record did not show any direct threat of violence or a request to discontinue the work, but “Gladney was made to understand he would not be permitted to use the building after the completion ... . ” (Emphasis added.)

In Martin v. Sterkx, 146 La. 489, 83 So. 776 (La.1920), the defendant entered plaintiff’s property and told plaintiff’s tenant that she would have to vacate the premises because there was a law suit pending involving the title to the property. The supreme court was convinced that the actions of the defendant were “officious and mischievous.” Further, it was not the defendant who had a claim to ownership of the property, but rather it was defendant’s aunt. The aunt’s testimony was to the effect that she did not know she had authorized any suit against the plaintiff.

In New Iberia Extract Company v. E. McIlhenny’s Son, 132 La. 149, 61 So. 131 (La.1912), the defendants mailed circular letters to plaintiff’s customers threatening institution of legal proceedings against the customers if they offered for sale under the name “Tabasco” a pepper sauce manufactured by anyone other than E. Mcllhenny’s Son. The defendants patented the process for manufacturing the sauce in 1870, but this expired in 1887. In 1905 they registered the trade-mark “Tabasco” under a false declaration that they had had exclusive use thereof since 1868. This statement was made on advice of counsel, but the defendants knew it was untrue. The trademark was subsequently cancelled for another reason by the Commissioner of Patents, but in the meantime the circulars had been mailed. As a result, some recipients of the letter ceased doing business with plaintiff. The court held the circulars constituted libel and allowed plaintiff to recover damages for the injuries to its business. It rejected the defense that defendants had relied on the advice of counsel in making the false declaration to the commissioner saying:

“No amount of legal advice will excuse a suppression, or misrepresentation, of the facts of a case. The client is responsible for the truth of facts by him verified, and advice of counsel will not shield him from statements that are not true.”

The court concluded that “defendants acted in bad faith with intent to drive plaintiff and other competitors from the market.” (Emphasis added.)

In these cases the acts of the parties causing plaintiffs’ losses were done in bad faith or were seemingly unlawful or wrongful. Such actions certainly cannot be likened to a threat to institute a suit by a party who honestly believes he has such a right to protect his business and acts on the advice of his attorney.

The plaintiffs-appellees cite Reichert v. Continental Insurance Company, 290 So.2d 730 (La.App. 1 Cir. 1974), writ denied, 294 So.2d 545 (La.1974), for the broad proposition that the law imposes certain risks upon parties to contracts who misinterpret their rights and cause damage to others. We do not feel that the Reichert rationale, which involved an erroneous interpretation by an insurer of its own policy, is applicable to the case at bar. First, it was not shown in this case who prepared the attornment agreement. Consequently, that document cannot be considered in the same category as an insurance company’s “own policy.” Furthermore, it is not the insurer’s misinterpretation of its policy above that gives rise to a cause of action for penalties and an attorney’s fee. That cause of action was created by the penalty statute where there has been an arbitrary refusal to pay the benefits due under the policy. Also, insurance contracts are considered sui generis and are treated differently from other contracts in many respects.

Mid-State Homes, Inc. v. Bice, 361 So.2d 275 (La.App. 1 Cir. 1978) and T & D Contracting Company v. Mack Truck, Inc., 178 So.2d 284 (La.App. 4 Cir. 1965), writ refused, 248 La. 441, 179 So.2d 430 (La.1965), are cited as authority for plaintiffs’ argument that damages should be awarded against a party who misinterprets a contract and files suit in good faith. Both cases involved claims for damages resulting from wrongful seizures of mortgaged property under executory process. We are unable to find in either opinion any mention of a misinterpretation of a contract by a party. Be that as it may, wrongful seizure of property without prior notice in an ex parte proceeding is a harsh remedy. And it is to prevent such wrongful seizures that recovery of damages is allowed. We see no similarity between a wrongful seizure in a defective executory process proceeding and the mere threat of litigation.

Finally, plaintiffs assert that the standard to be applied here is the same as that involved where a wrongful temporary restraining order or injunction was actually issued. Article 3608 of our Code of Civil Procedure specifically provides for an award of damages simply because of the wrongful issuance of a temporary restraining order or preliminary injunction. We do not believe the legislature intended that this article apply to a mere threat to obtain such injunctive relief.

In this case for legitimate business purposes, believing it had the right to prevent the original lessors from granting a similar lease to a business competitor and following the advice of its attorney, Billy M Corporation threatened to institute suit to obtain injunctive relief. Then, because of the declaratory judgment suit filed against it by the lessors involving that issue or for some other reason (not shown to have been in bad faith or wrongful), Billy M saw fit not to pursue such course of action. While we recognize that this threat of litigation did cause McDonald’s to exercise its option under the contract to avoid the lease, we are not willing to hold that such a threat without bad faith or other wrongful conduct is sufficient to impose liability for any damages which may result therefrom.

For the foregoing reasons, the judgment of the trial court is reversed insofar as it awards damages to plaintiffs and taxes the court costs to the defendant. Otherwise, it is affirmed. The plaintiff will pay all costs of court, including this appeal.

REVERSED IN PART AND AFFIRMED IN PART.


author: SWIFT, Judge. CULPEPPER, Judge, FORET, Judge,

text:
    Dalton Ray LANGFORD and Leon Edward Cole, Plaintiffs-Appellees, v. CALCASIEU PARISH POLICE JURY, Defendant-Appellant.
    No. 7972.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 20, 1981.
    Rehearing Denied April 27, 1981.

      Eugene A. Bouquet, Asst. Dist. Atty., Lake Charles, for defendant-appellant.
    Scofield, Bergstedt, Gerard, Hackett & Mount, J. Michael Veron, Lake Charles, for intervenor-appellant.
    Salter, Streete & Hale, Stephen R. Streete, Lake Charles, for plaintiffs-appel-lees.
    Before CULPEPPER, DOMENGEAUX, FORET, SWIFT and DOUCET, JJ.

       Foret, J., voted to grant a rehearing.

   SWIFT, Judge.

On November 13, 1978, the plaintiffs acquired the ownership of a five-acre tract of land in Calcasieu Parish, Louisiana. They purchased five more acres contiguous to their other property on November 29, 1979. A mobile home and storage shed were on this tract, but they were reserved by the plaintiffs and subsequently removed. Finally, on December 6, 1979, the plaintiffs purchased a third five-acre tract contiguous to the other two. Except for the mobile home, shed, a water well and a septic tank, the land was unimproved. At the time of these purchases all three tracts were in an unclassified zone. The plaintiffs planned to construct a mobile home park on the property.

In late 1979 the Calcasieu Parish Health Unit issued a preliminary approval of the plaintiffs’ plan for the sewerage and water system for the proposed trailer park. Construction of these facilities was stopped by the health authorities, however, when it was learned that an oxidation pond was being built in a part of an existing barrow pit. Numerous requirements remain to be satisfied before final approval can be obtained.

On December 20,1979, Langford and Cole ordered 100 electrical outlet pedestals at a cost of $11,050.00. Of this amount $6,188.00 was paid prior to February 13, 1980. The record does not reflect that any of these have been installed.

Langford applied for a flood insurance development permit and on January 2,1980, the Calcasieu Parish License and Permit Officer issued a permit which authorized him to develop a mobile home park on the north side of Ravia Road just west of Areno Road. He was told at the time a group of people had contacted the Calcasieu Parish Planning Office about opposing such development which could be adversely affected by a change of the zoning regulations.

In early January 1980, the plaintiffs hired four bulldozer service companies to begin clearing and leveling the property and building the oxidation pond or ponds, road beds and drainage ditches thereon. However, no roads, sewer lines or water lines appear to have been constructed on the land before it was rezoned on February 21,1980. The total expenditures for the bulldozer services as of that time amounted to $7,227.75.

On January 15,1980, Jerry Nichols moved a trailer on the property and connected it with the septic tank and water well that were on the property when it was bought by plaintiffs. Within two weeks Ivan De-getair located a second trailer next to Nichols’. A third and smaller trailer arrived shortly thereafter, but it was in need of renovation and was unoccupied at the time.

At some point in January, 1980, Ms. Janice Loraine Areno and approximately 38 other adjoining and neighboring landowners filed a petition with the Greater Ward Four Planning Commission, requesting the commission to recommend that the Calca-sieu Parish Police Jury rezone this and other unclassified area to an A — 1, or agricultural, zone. On February 20, 1980, after a public hearing the commission unanimously voted to make such recommendation. On February 21, 1980, the police jury adopted Ordinance No. 1935 which amended the comprehensive zoning district map of Calca-sieu Parish so that the property was rezoned from unclassified to A-l, Agricultural.

On April 15, 1980, Langford and Cole sued to enjoin the Calcasieu Parish Police Jury from enforcing this rezoning amendment against them and from interfering with their construction of the mobile home park. The suit is based principally on the contention that plaintiffs had established a nonconforming use of the property prior to the adoption of the rezoning amendment.

On May 13, 1980, Ms. Areno filed a petition of intervention in the injunction proceedings. She alleged that she is owner of property located on the eastern boundary of the plaintiffs’ land which would decline, in value by the construction and operation of the mobile home park. She further denied the plaintiffs had established a valid nonconforming use of their property and sought to join the defendant police jury in opposing the plaintiffs’ demands.

The plaintiff then filed a peremptory exception of no cause of action, asserting that the intervenor as a citizen has no interest or right to enforce or prevent the enforcement of an ordinance, the only proper party to do so being the governing body.

Following the hearing the exception was sustained and the request for a preliminary injunction was granted.

The trial judge stated in his reasons for judgment:

“In the instant case, the court finds that plaintiffs substantially completed the trailer park and actually had trailers on the premises prior to the adoption of ordinance 1935 and thus have established a non-conforming use status.”

Ms. Areno has appealed the judgment sustaining the exception and the police jury has appealed the judgment on the rule for preliminary injunction.

The appellants’ first specification of error is directed at the ruling as to the intervention.

We cannot agree with the trial judge that an adjacent or neighboring property owner has no cause of action to enforce or prevent enforcement of a zoning ordinance. This court held to the contrary in Adams v. Brian, 212 So.2d 128 (La.App. 3 Cir. 1968), writ refused 252 La. 880, 214 So.2d 549 (La.1968), wherein injunctive relief was granted such parties upon proof that the value of their properties would be diminished by the construction of defendant’s residence in violation of a city ordinance. Also see Boyd v. Donelon, 193 So.2d 291 (La.App. 4 Cir. 1966), writ refused 250 La. 366,195 So.2d 643 (La.1967), and City of New Orleans v. Leeco, Inc., 219 La. 550, 53 So.2d 490 (La.1951), involving interventions by neighboring property owners to prevent zoning ordinance violations. We must therefore reverse the district court’s judgment sustaining the plaintiff’s exception of no cause of action to the intervention filed herein.

Appellants next contend the trial court erred in concluding that plaintiffs had established a prior nonconforming use of their property as a mobile home park, because such prior use must be lawful and the required health and sanitation permit for the operation of such a park has never been obtained. This specification of error appears to have considerable merit.

ARTICLE II of the Calcasieu Parish Comprehensive Zoning Law defines a nonconforming use as “[a] structure or land lawfully occupied by a use that does not conform to the regulations of the district in which it is situated.” (Emphasis added.)

ARTICLE VII, SECTION I, provides that “[t]he lawful use of any building or land existing at the time of the enactment of this Ordinance may be continued, although such use does not conform with the provisions of this Ordinance.” (Emphasis added.)

A trailer park is defined in ARTICLE II as “[a]n area providing spaces where one (1) or more auto trailers can be or are intended to be parked, with flush toilet and bathing facilities provided on the site.”

Since the plaintiff had not obtained the necessary health and sanitation permit to provide “flush toilet and bathing facilities” for any of the 99 spaces planned for the trailer park on February 21,1980, when this property was reclassified as A-l, Agricultural, it does not appear that they were then lawfully using the 15 acres as a trailer park.

Be that as it may, the record does not disclose whether or not such a permit was required to connect the two habitable trailers heretofore mentioned to the septic tank and water well. Consequently, we prefer to reach our decision on the issue of whether the plaintiffs were actually using the property as a trailer park prior to the effective date of the amendment to the zoning ordinance prohibiting such use. We are convinced the trial judge erred in concluding the trailer park had been “substantially completed” on that date and this with the three trailers thereon established a nonconforming use.

This decision was rendered on a rule for preliminary injunction which was tried solely on the basis of affidavits and other documentary evidence. Under the circumstances, this court is in just as good a position as was the trial judge in reviewing such evidence and making findings of fact. Be that as it may, we believe his finding in this respect was clearly wrong.

It is clear from the evidence that the planned trailer park was under construction, but far from completion on February 21, 1980. The land appears to have been cleared and leveled and a six cell oxidation pond was under construction on that date. However, there were no roads, sewer lines or drainage ditches then on the property and there were only two habitable mobile homes or trailers situated thereon. These were connected with a water well, septic tank and a utility line that had been used by the prior landowner for his mobile home, not for commercial purposes. None of the electrical outlet pedestals purchased by plaintiffs had been installed, nor had any work begun on the pads that were planned for each trailer lot. The oxidation pond had not then been approved by the health authorities and it may have to be rebuilt in a different location.

Unlike Deshotel v. Calcasieu Parish Police Jury, 323 So.2d 155 (La.App. 3 Cir. 1975), wherein the issuance of a beer and liquor permit was ordered on the basis that the plaintiff had established a nonconforming use before the zoning change because the construction of the building was then completed even though it had not yet been used, none of the plaintiffs’ work on this property was near completion when the zoning was changed, nor had anything done by the plaintiffs for the proposed trailer park been put to use at that time.

We recognize that in these races to complete construction prior to the effective date of the zoning change substantial completion of the facility for the intended nonconforming use is generally sufficient. However, we are convinced from our examination of the record that the plaintiffs failed to establish completion of their project to such a degree in this instance. Certainly, the commencement of construction of a trailer park prior to such time does not entitle the entirety of the land to a nonconforming use status.

We do believe, however, that renting spaces for and the location of the two inhabited trailers on the property prior to the effective date of the amended ordinance constituted a nonconforming use of those portions of the plaintiffs’ land which were actually occupied by the tenants. This use of such areas may be continued. However, it cannot be extended or enlarged, because to do so would violate the specific prohibition of ARTICLE VII, SECTION 3, of the comprehensive zoning ordinance which reads in part as follows:

“A nonconforming use shall not be extended or enlarged except when required to do so by law or by ordinance.”

In City of Crowley v. Prejean, 173 So.2d 832 (La.App. 3 Cir. 1965), although a different result was reached because the ordinance involved did not contain such a prohibition and the entire tract had been previously prepared for use as a trailer park, this court said:

“Generally speaking (although this is subject to the varying provisions of the specific zoning enactments), zoning regulations are violated by an enlargement or extension beyond the permissible nonconforming use established, or by increasing the area of non-conforming use.” (Emphasis added)
Also, see 101A C.J.S. Zoning & Land Planning § 168, p. 515.

The preliminary injunction issued herein therefore must be limited to the particular areas of the plaintiffs’ property that were actually rented and occupied by the tenants of the habitable trailers when the zoning ordinance was amended. Since we are unable to ascertain from the record these two particular spaces, it will be necessary to remand the case for the district judge to make such determination. Also, the plaintiffs’ demand for a permanent injunction should be disposed of.

For the foregoing reasons, the judgment of the district court sustaining the plaintiffs’ peremptory exception of no cause of action is reversed and the exception is hereby overruled. The judgment granting the plaintiffs a preliminary injunction is amended to enjoin the defendant, its agents and employees, only from interfering with the nonconforming use exercised by the plaintiffs and their tenants on February 21, 1980, on the particular areas of the property involved herein which were then rented and occupied by Jerry Nichols and Ivan Dege-tair (to be determined by the district judge), and to tax one-half of the court costs including this appeal, to the plaintiffs and one-half to the defendant (insofar as the law allows) and intervenor, but otherwise it is reversed and set aside. The case is remanded to the district court for further disposition in accordance with law and the views expressed herein.

REVERSED IN PART, AMENDED IN PART AND REMANDED.

CULPEPPER, J., concurs for the reasons assigned in his attached concurring opinion.

DOMENGEAUX and DOUCET, JJ., concur in the result reached.

FORET, J., dissents and assigns written reasons.

CULPEPPER, Judge,

concurring.

I concur in the majority opinion except for the application of a “substantial completion” rule. The ordinance in question contains no provision for establishment of a nonconforming use by “substantial completion.” There is a provision in the ordinance for a grace period for completion of structures whose construction is commenced before adoption of the ordinance. However, that provision has no application here. The plaintiff did not commence construction of any. “structures” before the effective date of the ordinance.

In my view, this case is controlled by Section 1 of the ordinance which states in pertinent part: “The lawful use of any buildings or land existing at the time of the enactment of this ordinance may be continued, although such use does not conform with the provisions of this ordinance.” (Emphasis added.) Under these provisions, there clearly was no “lawful use” of the entire 15 acres of land as a trailer park prior to the enactment of the ordinance. Nevertheless, I agree with the majority that there was a prior nonconforming “lawful use” of two trailer spaces.

In Magness v. Caddo Parish Police Jury, 318 So.2d 177 (La.App. 2d Cir. 1975) the original opinion used a “substantial completion” test under facts involving a mobile home park. However, on rehearing the court recognized that the ordinance did not provide a “substantial completion” test. Thus, the court finally decided that the test was “actual use” for the nonconforming purpose. The same rationale applies to the present case.

FORET, Judge,

dissenting.

I respectfully dissent in this matter.

I see no manifest error in the decision of the trial court holding that there was a “substantial completion” of the trailer park by the plaintiffs herein. These plaintiffs paid a total of $50,105.49 for the 15-acre tract of land involved. Up until the time of the adoption of the zoning ordinance classifying land which was previously totally unclassified and unzoned, plaintiffs had spent $18,777.75 toward the implementation of their proposed trailer park. In my view, the expenditure made by plaintiffs, when compared to the purchase price of the property cannot be said to be unsubstantial. Be that as it may, there is some discussion that the ordinance involved makes no mention of a “substantial completion” rule. However, Section 1 of the ordinance states, in pertinent part:

“The lawful use of any buildings or land existing at the time of the enactment of this ordinance may be continued, although such use does not conform with' the provisions of this ordinance.” (Emphasis provided.)

In Magness v. Caddo Parish Police Jury, 318 So.2d 177 (La.App. 2 Cir. 1975), the Second Circuit initially found “substantial completion” of a mobile home park. However, on rehearing the court found that the zoning ordinance did not provide for a “substantial completion” rule, but nonetheless ruled in favor of plaintiff, finding that the test was “actual use” for the nonconforming purpose, and again ruled in favor of the plaintiff. I agree that the same rationale applies to the present case. Section 1 of the ordinance states, “The lawful use of any buildings or land . .Certainly at the time that the plaintiffs commenced their activities and expenditures for building of this mobile home park, their activities were a lawful use of this land, and in my mind, they were “actually using” the land for the building of a trailer park. The fact that they had a good ways to go towards completion does not justify depriving these plaintiffs of the intended use of their land. According to the reasoning of the majority in this rase, even if 10, 50, or 99 trailer stalls were 100% completed, but not yet occupied by mobile homes, the majority would still find that the park was not “in use” at the time of the enactment of the ordinance and, therefore, the successful race to the courthouse by the intervening parties herein could thwart the efforts of the plaintiffs even though a substantial and irreparable financial loss would result to these plaintiffs.

I find that I cannot approve a reversal of the trial court findings herein, and I respectfully dissent.


author: EDWARDS, Judge. PONDER, Judge,

text:
    Dwight R. WALTON v. WILLIAM WOLF BAKING COMPANY, INC., Paul M. Teeney, and Liberty Mutual Insurance Company.
    No. 13939.
    Court of Appeal of Louisiana, First Circuit.
    March 2, 1981.
    Rehearing Denied April 13, 1981.
    Robert J. Prejeant, Houma, for plaintiff and appellee.
    John L. Lanier, Thibodaux, for defendants and appellants.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   EDWARDS, Judge.

Plaintiff, Dwight R. Walton, was injured on May 31, 1977, when the automobile he was driving collided with a van driven by Paul M. Teeney and owned by Teeney’s employer, William Wolf Baking Company, Inc. The accident occurred because Teeney negligently drove his vehicle directly into the path of Walton’s car.

Walton brought suit against Teeney, William Wolf Baking Company, Inc., and Liberty Mutual Insurance Company. Teeney was never served.

Following trial, judgment was signed in plaintiff’s favor and against William Wolf Banking Company and Liberty Mutual Insurance Company awarding damages as follows:

Pain and Suffering $ 75,000.00
Medical Expenses 16,571.93
Past Lost Wages 56,084.00
Future Lost Wages 164,917.67
Future Medical Expenses 5,000.00
Total $ 317,573.60

Plaintiff was also awarded interest and all costs, including $650 in expert witness fees. Liberty Mutual’s liability was limited to its contractual obligation, $250,000 plus the applicable interest.

Defendants appeal suspensively specifying that the trial court erred in:

1) holding that the plaintiff would never be able to engage in any gainful employment,
2) making awards for loss of past and future earnings,
3) awarding $5,000 for future medical expenses, and
4) awarding $75,000 for pain and suffering.

The trial court found that plaintiff initially suffered from a moderate to severe cervical strain, moderate to severe cervical spondylosis, and degenerative cervical changes. In addition, plaintiff developed a depressive reactive neurosis secondary to a pain syndrome.

Appellants make a strong argument that, from a purely physical standpoint, Walton could return to work and that, failing to do so, he is a malingerer. This argument is buttressed by one of twelve surveillance films which shows the plaintiff vigorously mowing his lawn.

Appellants further urge that damages based on psychological grounds should be scrutinized most carefully. We agree, Jackson v. United States Fidelity & Guaranty Company, 382 So.2d 223 (La.App. 3rd Cir. 1980), writs denied 385 So.2d 275 (La. 1980); Boutte v. Mudd Separators, Inc., 236 So.2d 906 (La.App. 3rd Cir. 1970), writ refused 256 La. 894, 240 So.2d 231 (La.1970), but note that, as held by the court in Jackson, the danger of denying recovery to a deserving claimant must be guarded against with equal enthusiasm.

The gravamen of plaintiff’s case, that he was physically and mentally unfit for future work, was supported by the generally concurring testimony of medical experts, in particular Drs. Morse and Edisen. Dr. Ce-nac’s testimony, partially changed as a result of seeing the surveillance films, is consonant with a finding that, while Walton’s condition had improved from an orthopaedic standpoint, he was still suffering from psychiatric disabilities. Plaintiff also established that, before the accident, he had been a reliable employee with a good work record.

Pitted against these established facts are the surveillance films and the somewhat contradictory medical testimony, all of which was considered by the trial court and found to preponderate in plaintiff’s favor. To reverse this case, we would have to find, essentially, that the surveillance films clearly outweighed the evidence in plaintiff’s favor. This we cannot do. We sit as a court of review and the present case may only be reviewed, not retried.

Bound as we are by the limiting rules of review, we cannot say that the trial court’s finding of permanent and total disability was “clearly wrong.” Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). Nor, despite finding the award made to be quite high, are we able to articulate sufficient reasons, as required by the Supreme Court, to find the award made “a clear abuse” of the trial court’s discretion. Reck v. Stevens, 373 So.2d 498 (La.1979).

For the foregoing reasons, the trial court judgment is affirmed. All costs, both trial and appellate, are to be paid by William Wolf Baking Company, Inc., and Liberty Mutual Insurance Company.

AFFIRMED.

PONDER, J., dissents and assigns reasons.

PONDER, Judge,

dissenting.

I dissent. I agree that plaintiff was injured and is entitled to damages. In my opinion, however, he has not proved the length of his continuing disability.

Plaintiff’s expressions as to length of disability are based on a hearsay statement of his drilling supervisor that he could not drill any more, on resumés of what the employment office employees told him — that there was nothing available then — and on what the rehabilitation man told him — a pessimistic expression of the handicaps of age and limited education upon any rehabilitation program).

Dr. Harold Stokes, orthopedist, found cervical spondylosis with clinical findings exaggerated. He said he would “hope that with continued reassurance and gentle treatment his symptoms will progressively subside and he will be able to return to his job as a supervisor for Delta Drilling.”

Dr. Eugene J. Dabezies, orthopedist, found a chronic pain problem with an “awful lot of psychological overlay.” Because of the psychological problems, he could not be sure that the present pain was a result of the automobile accident. The plaintiff had no evidence of an underlying orthopedic disease but needed psychiatric treatment. He made no statement of possible duration.

Dr. Michael E. Carey, neurosurgeon, found plaintiff making an adequate recovery from cervical sprain and recommended no surgery. He made no estimate of possible duration.

Dr. Homer Kirgis, neurosurgeon, disturbed by the zero motion of head, found that the plaintiff was possibly exaggerating and needed psychiatric evaluation. He made no estimate of possible duration.

Dr. John E. Schumacher, neurosurgeon, found plaintiff’s problem was mostly psychiatric. He made no estimate of possible duration.

Dr. Clayton Edisen, psychiatrist, found plaintiff now disabled by depression and felt that his physical health would not be restored by a monetary award for his damages. He was not asked for and gave no estimate of duration of disability.

Dr. James Knight, psychiatrist, found that the problem was psychiatric and felt plaintiff would be able to return to work with three to six months after resolution of the suit regardless of the results.

Dr. Richard H. Morse, psychiatrist, found plaintiff’s problem was reactive depressive neurosis and felt that he could be expected to return to supervisory work except that he would have to avoid heavy lifting or further injury. The pain would be resolving over a period of six months to one year. The best therapy would be a return to work.

Dr. Robert A. McFarlain, psychologist, found a significant neurotic depression making plaintiff an excellent candidate for rehabilitation. He made no estimate of duration.

Dr. Karl E. Keller, rheumatologist, found a moderately severe cervical spondylosis and apparently a pain syndrome. He made no estimate of duration.

The testimony of Dr. Christopher Cenac, orthopedist, has been left until last because he was the treating physician and because he made significant changes in his testimony after viewing some films of plaintiff’s physical activities.

In the first part of the trial he found total and, inferentially though not expressly, permanent disability because of neuro-psychiatric, not orthopedic, problems. However, after viewing the films, he stated his former opinion of total disability wasted upon lack of function as a result of lack of motion but that the film demonstrated an adequate range of motion.

I find no medical testimony upon which a conclusion of total, and permanent disability could be based. Special and general damages based upon such a conclusion are, therefore, I believe, unjustified.

I therefore dissent.


author: ELLIS, Judge:

text:
    Ronald LEGER v. STATE POLICE RETIREMENT BOARD.
    No. 13650.
    Court of Appeal of Louisiana, First Circuit.
    March 2, 1981.
    Writ Denied April 27,1981.
    Felix A. Dejean, III, Opelousas, for plaintiff-appellee Ronald Ledger.
    William C. Toadvin, Staff Atty., Louisiana Dept, of Justice, Baton Rouge, for defendant-appellant State Police Retirement Board..
    Before ELLIS, COLE and WATKINS, JJ.
   ELLIS, Judge:

This case is before us on remand from the Supreme Court, 399 So.2d 209, with instructions to decide the case on its merits. The relevant facts, as expressed in our former opinion, 393 So.2d 247, are as follows:

“On May 19 or 20,1979, while on duty at the front desk at Troop K, Sergeant Ronald Leger injured his back when he fell while attempting to sit down. By September 7, 1979, he was unable to work because of the pain in his back, despite conservative medical treatment, and went on sick leave. On September 18,1979, he formally applied for disability retirement. “Pursuant to the application, an appointment was arranged with Dr. Herbert K. Plauche, whose instructions were as follows:
‘Our retirement regulations require an in-depth report, in layman’s terms, of your diagnosis and your opinion as to whether this individual should be retired on disability retirement in his position as a State Trooper. Additionally, we will require a qualification as to whether this injury is duty related or a non-duty related injury.’
“After examining Sergeant Leger, Dr. Plauche reported that he was disabled to perform his occupational duties and ‘in all probability that this is a job-related disability.’
“The only other evidence of Sergeant Leger’s physical condition in the record is the opinion of his personal physician, which is in accordance with that of Dr. Plauche.
“On November 28, 1979, the State Police Retirement Board met and denied Sergeant Leger’s request ‘for a 75 percent job-related disability retirement.’ No reasons were given for the action.
“Thereafter, Sergeant Leger applied for judicial review of the action of the Board. The review, which was based on the record before the Board, resulted in a finding that Sergeant Leger was disabled, that his disability was ‘work related’ and that he was entitled to 75 per cent disability retirement. From the judgment of the trial court, the Board has appealed.”

In this court, no question is raised as to Sergeant Leger’s total disability, which is now conceded, so that the only substantive question before us is whether plaintiff is entitled to a 75 per cent retirement.

The Board further contends that the trial judge applied an improper standard of review when he found the ruling of the Board to be “erroneous.” R.S. 49:964.G. provides as follows:

“The court may affirm the decision of the agency or remand the case for further proceedings. The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:
“(1) In violation of constitutional or statutory provisions;
“(2) In excess of the statutory authority of the agency;
“(3) Made upon unlawful procedure;
“(4) Affected by other error of law;
“(5) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion; or
“(6) Manifestly erroneous in view of the reliable, probative, and substantial evidence on the whole record. In the application of the rule, where the agency has the opportunity to judge of the credibility of witnesses by first-hand observation of demeanor on the witness stand and the reviewing court does not, due regard shall be given to the agency’s determination of credibility issues.”

In this case, the trial judge was called on to review the question of disability as well as the question of the amount of the pension. Disability is generally a question of fact, and a standard of “manifest error” is applicable. The question of the amount of the pension is one of mixed law and fact and both “manifest error” and “error of law” may be involved. The court made a finding of disability, the correctness of which is apparent from the face of the record, and a finding of the Board to the contrary would be “manifestly erroneous.” Plaintiff’s total disability is now conceded, so that no review of this finding is necessary.

As to the question of the amount of the pension, R.S. 40:1428.B.(2), as amended by Act 727 of 1978, provides as follows:

“In case of total disability resulting from injury received in the line of duty, a monthly pension of seventy-five percent of his average salary shall be paid to the disabled employee under the provisions of this Subpart.”

The Board takes the position that the phrase “line of duty” refers to the extra hazardous activities which a state police officer may be required to execute, and not to routine office procedures • such as plaintiff was engaged in when he was injured. No legal basis is offered in support of this interpretation of that phrase, other than the ex post facto amendment of R.S. 40:1428.B.(2) to so provide.

However, we note from Dr. Plauche’s instructions from the Board that he was asked to say if the injury received by plaintiff was duty related or non-duty related. This is somewhat at variance with their current position. Webster’s Third New International Dictionary defines “line of duty” as:

“all that is authorized, required, or normally associated with some field of responsibility (as of a policeman, fireman or soldier) — used esp. in connection with assessment of responsibility for or classification of sickness, injury, or death of persons subject to a line of duty.”

We find that the ordinary significance attached to “line of duty” would include the activities being carried out by plaintiff as well as extra hazardous duties, and we so interpret the statute. Articles 14, 15, Civil Code. The trial court correctly determined that plaintiff was entitled to a 75 per cent pension under R.S. 40:1428.B.(2).

The Board correctly argues that, under the provisions of R.S. 42:703.E., plaintiff is entitled to draw his pension benefits from the filing date of his application for disability retirement, or from the day following the exhaustion of all sick leave or annual leave, whichever is later. The judgment will be amended accordingly.

The judgment appealed from is therefore amended so as to provide that payment of pension benefits will begin as of September 18, 1979, the date of plaintiff’s application for retirement, or from the day following the exhaustion of all sick leave or annual leave claimed by plaintiff, whichever is later, and, as amended, it is affirmed, at defendant’s cost.

AMENDED AND AFFIRMED.