author: CHEHARDY, Judge.

text:
    PARISH OF JEFFERSON v. Herbert E. MILLS, d/b/a Crest Air Conditioning & Heating.
    No. 12447.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 11, 1982.
    Larry C. Pieno, Marrero, for plaintiff-ap-pellee.
    Richard J. Boutall, Metairie, for defendant-appellant.
    Before SAMUEL, CHEHARDY and KLIEBERT, JJ.
   CHEHARDY, Judge.

Plaintiff, Harry Lee, in his capacity as Sheriff and Ex-Officio Tax Collector for the Parish of Jefferson, instituted this rule for delinquent taxes for occupational licenses, including statutory penalties, interest and attorney’s fees, against defendant, Herbert E. Mills, doing business as Crest Air Conditioning & Heating. No answer or written defenses were filed, but defendant appeared at the hearing in proper person.

Following trial, judgment was rendered in favor of plaintiff in the sum of $1,550.44 together with penalties, interest and attorney’s fees from August 7, 1980 until paid. Defendant has suspensively appealed.

The only evidence offered by plaintiff was a true copy of the First Lien and Privilege affidavit filed in the parish mortgage records against defendant for failure to pay occupational licenses and permits for the years 1974 through 1980.

Defendant testified he still owns the property where the business was located, but the business was terminated in 1975 and the parish was so advised at that time. Upon notice of back taxes he returned to the parish office and was told he was still advertising in the yellow pages. Defendant explained this was co-op advertising with Fedders and Climatrol, and they had failed to remove the ad.

Plaintiff’s attorney made no objections to any of defendant’s testimony and specifically declined to cross-examine defendant. Instead he relies on the Jefferson Parish Code of Ordinances 16:1 et seq. (Ordinance No. 2587 as amended), which provides that where no answer is filed and no written defenses are in the record the court is bound to render judgment in favor of plaintiff.

A careful examination of the ordinance indicates it refers specifically to sales and use tax. We note plaintiff’s rule is directed to occupational licenses, as is its affidavit, which specifically deletes that portion of the standard form relating to delinquent sales and/or use tax by typing through that portion of the form.

Since we find no provision in the ordinance for summary proceedings for other than sales or use tax, the affidavit alone, referrable to occupational licenses, is insufficient to support the judgment. Plaintiff has clearly not borne its burden of proof in the light of defendant’s undisputed testimony.

For the reasons assigned the judgment appealed from is reversed and it is now ordered that there be judgment in favor of defendant dismissing plaintiff’s suit.

REVERSED AND RENDERED.

      . We note additionally that the judgment does not conform to the pleadings. The initial demand for $1,550.44 Included penalties, interest and attorney’s fees, but the judgment incorrectly granted these requests in addition to the sum demanded.


source: Caselaw Access Project

license: Public Domain

text:
    Dr. Kyle HAMM v. SOUTHEAST LOUISIANA EMERGENCY MEDICAL SERVICES COUNCIL, INC., and Robert Betz.
    No. 5-4.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 11, 1982.

      Parlongue & Riegel, Philip R. Riegel, Jr., New Orleans, for Dr. Kyle Hamm, plaintiff-appellee.
    Lawrence J. Fritz, Metairie, for Southeast Louisiana Emergency Medical Services Council, Inc., defendant-appellant.
    Before BOUTALL, CHEHARDY and KLIEBERT, JJ.
   CHEHARDY, Judge.

Defendant Southeast Louisiana Emergency Medical Services, Inc. (Emergency Medical Services), appeals a district court decision in favor of plaintiff, Dr. Kyle Hamm, and against this defendant ordering it to pay $8,190 plus interest from the date of judicial demand, which represents the amount of unpaid rents for the remaining term of the lease entered into by the parties. It was further decreed that the defendant was condemned to pay $1,228.50 in attorney fees and the costs of the proceedings.

The subject lease in this case, which is part of the record, bears the names of Dr. Kyle Hamm as lessor and Robert Betz, “d/b/a Emergency Medical Services Council”, as lessee. The term of the lease, which was for professional office space, was for two years, commencing on August 15, 1977 and ending on August 14, 1979. The rental was specified as $630 per month.

Dr. Hamm testified at trial that after the execution of the lease Emergency Medical Services posted a sign in front of the building, had a secretary answering the office phone by giving that name, used stationery with that name on it and continued to pay the rent through June of 1978. He added in July of 1978 he received a communication written on behalf of the defendant stating it intended to vacate the premises. In this letter, also part of the record, Emergency Medical Services disclaimed liability in regard to the lease and served formal notice of vacating as of August 15, 1978.

Part of the evidence presented was a document evidencing the incorporation of Emergency Medical Services as of August 1, 1977. The articles of incorporation listed Robert B. Betz as the corporation’s registered agent for service of process and also as an incorporator, but he was not listed as a member of the board of directors.

Henry Trapani, who was vice president of Emergency Medical Services at the time of trial, stated that Betz was the executive director, therefore an employee, of the corporation. He added the subject lease was never ratified formally by the board of directors and that Betz was not authorized to contract for the corporation.

In his reasons for judgment the trial judge found that by using the premises as stated in the lease and making numerous monthly payments for the premises, the corporation tacitly ratified the actions of Robert Betz and, therefore, would be held liable for the remaining rental payments, as well as attorney fees and court costs (as provided for in the lease). Defendant, however, argues on appeal that the corporation was only in effect a sublessee, and mere occupancy by a sublessee does not create a lease arrangement between the sublessee and the landlord.

In the case of Illinois Cent R. Co. v. International Harvester, 368 So.2d 1009 (La.1979), the lessee did not obtain written or express permission from the lessor before' subletting the premises and converting it into a parking garage. The issue presented to the court in that case was whether the lessor, by its silence or inaction, had impliedly assented to the sublease and altered use of the premises. The court noted that the Civil Code and the statutes do not provide that any legal presumption of consent shall arise from a lessor’s silence and acceptance of rent. It also said, however, that in cases where the law does not expressly create a legal presumption of consent from certain facts, it is left to the discretion of the trial judge to determine if consent is to be implied from the particular circumstances of the case, citing LSA-C.C. art. 1818 and Pooler Building Materials, Inc. v. Hogan, 244 So.2d 62 (La.App. 1st Cir. 1971). The Court in the Illinois Cent. R. Co. case found there was no showing the lessor unequivocally consented to modify the subject lease, and it was within the discretion of the trial judge to conclude there was not consent implied.

In the case of Smith v. Trippe Motors, 193 So. 603 (La.App.2d Cir. 1939), cited by the plaintiff as well as the district court judge, the court addressed the issue presented in the instant case and concluded that the continued occupancy of the premises and the payment of rent from corporate funds fastened upon the corporation the status of lessee as fully and completely as would be the case had formal action of its board of directors authorized the making of the lease for it. It also noted that the corporation, according to the petition, had reaped the benefits of the contract, where-under it had the right to use and occupy the premises as lessee, and therefore the court refused to let it be heard to gainsay that by its acts and deeds above related it had not fully ratified and approved the contract. The court continued that it was too late to repudiate the action of the person through whose agency the property was occupied by the defendant, citing Fudiekar v. Glenn, 237 F. 808 (5 Cir. 1916); Poche v. New Orleans Home Inv. Co., 52 La.Ann. 1287, 27 So. 797 (1900); and other cases.

We agree with the trial judge that the acts of the corporation in the present case, through its board of directors, was a tacit ratification of the lease signed in its behalf by Betz. We also hold that due to the circumstances of the case the district court judge was within his discretion in finding implicitly that the corporation through its board of directors consented to the lease tacitly. Attorney fees, as provided for in the lease, as well as costs, were properly awarded by the trial court.

For the reasons assigned the trial court judgment is affirmed.

AFFIRMED.


text:
    Kay Guthrie, wife of James H. RINKER v. James H. RINKER.
    No. 5-11.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 11, 1982.

      George W. Giacobbe, Kenner, for plaintiff-appellee.
    Tucker & Schonekas, Russell J. Schone-kas, New Orleans, for defendant-appellant.
    Before BOUTALL, CHEHARDY and KLIEBERT, JJ.
   CHEHARDY, Judge.

This is an appeal by the husband from a judgment awarding his wife a divorce, and continuing alimony previously awarded by the court. Plaintiff alleged she was abandoned by her husband without just cause and that the parties have lived separate and apart without reconciliation for a period in excess of one year. The trial court found defendant did abandon his wife, thus establishing fault on his part.

While there is conflicting evidence, with the husband claiming his wife asked him to leave and packed all of his clothing in garbage bags and the rest of his belongings in a box, and the wife claiming she asked him not to leave and the only things she put in a box were books and magazines, it is clear the court accepted the testimony of the wife.

It is our established jurisprudence that findings of fact by the trial judge, particularly when they are dependent upon credibility of witnesses, are entitled to great weight and will not be disturbed on appeal in the absence of manifest error. Arceneaux v. Adams, 366 So.2d 1025 (La. App. 1st Cir. 1978); Echizenya v. Armenio, 354 So.2d 682 (La.App. 4th Cir. 1978); Moss v. Security Nat. Ins. Co., 350 So.2d 247 (La.App. 3d Cir. 1977); Usie v. Bonvillain, 348 So.2d 728 (La.App. 1st Cir. 1977); see also 2B La.Dig. Appeal and Error 1008(1). We find no error here.

We note, however, that there is no request for alimony in plaintiff’s petition for divorce, nor any evidence offered in support thereof. Therefore the award for the continuation of alimony was erroneous.

Since the matter of fault has been determined the wife is not precluded from seeking alimony at a later date, should she become in necessitous circumstances.

For the reasons assigned the judgment appealed from is amended to eliminate the award for alimony. In all other respects the judgment appealed from is affirmed.

AMENDED AND AFFIRMED.

      . By consent judgment in connection with a rule for alimony pendente lite, alimony was set in the sum of $25 per month.


author: KLIEBERT, Judge.

text:
    Charles LEE and Jean Lee, Individually and on Behalf of their Minor Daughter, Greta Jean Lee v. LOUISIANA TRANSIT COMPANY, INC., The Transit Casualty Company, Joseph A. Onebane, Jr., and Gale F. Mitchell. Gale MITCHELL v. LOUISIANA TRANSIT COMPANY, INC., The Transit Casualty Company, and Joseph A. Onebane, Jr.
    Nos. 5-1, 5-2.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 11, 1982.

      Donald M. Pierce, Gertler & Gertler, New Orleans, for plaintiffs-appellees, Charles Lee and Jean Lee, individually and on behalf of their minor daughter, Greta Jean Lee.
    Robert E. Peyton, Christovich & Kearney, New Orleans, for defendant-appellant, Louisiana Transit Co., Inc., The Transit Casualty Co., Joseph A. Onebane, Jr.

      Frederick P. Heisler, Heisler & Wysocki, New Orleans, for defendant-appellee, Gale F. Mitchell.
    Before BOUTALL, CHEHARDY and KLIEBERT, JJ.
   KLIEBERT, Judge.

These consolidated cases arose out of a collision on March 11, 1977 between, a Louisiana Transit Company (hereafter Transit) bus operated by Joseph A. Onebane, Jr. (hereafter Onebane) and a vehicle owned by Mrs. Gale T. Mitchell, parked on the shoulder of the road next to the service road for North Causeway Boulevard in the Parish of Jefferson. Mrs. Mitchell sued Transit, One-bane and their insurer, Transit Casualty, for personal injuries and property damages arising out of the collision. This suit was consolidated for trial with a suit by Charles and Jean Lee, individually and on behalf of Greta Jean Lee, their minor daughter who was a passenger on the bus, against the same defendants. Mrs. Mitchell was also a defendant in the Lee suit. In the suit brought by Mrs. Mitchell, Transit reconvened for the cost of repairing the bus and in the suit by the Lees, it filed a third party demand against Mrs. Mitchell for indemnity and/or contribution.

Following the trial, the trial judge rendered judgment dismissing Transit’s recon-ventional demand and its third party demand and awarded judgment in the amount of $3,493.00 in favor of Mrs. Mitchell, and in favor of the Lees in the amount of $2,277.00, in solido, against all defendants, except Mrs. Mitchell. The Lees’ suit against Mrs. Mitchell was also dismissed. The defendants appeal on both liability and quantum. Transit, Onebane and their insurer also appealed. The appeal raises four issues, i.e., the negligence of Onebane, the contributory negligence of Mrs. Mitchell, the error of the trial judge in accepting the investigating police officer as an expert and the excessiveness of the awards.

Mrs. Mitchell parked her vehicle along the shoulder of the service road in a posted “No Parking Zone” and was in the process of alighting from her vehicle when her car door came into contact with the right front wheel of the bus. Prior to the accident, the bus had been traveling in a northerly direction on the service road toward Lake Pontchartrain. As the transit bus proceeded through the intersection at 49th Street, a Jefferson Parish School Bus was approaching the transit bus from the opposite direction.

The issue as to the mechanics of the accident is whether the transit bus swayed from the traveled portion of the roadway and struck the partially opened left door of Mrs. Mitchell’s vehicle or whether Mrs. Mitchell opened the door of her vehicle into the traveled portion of the roadway causing it to be collided into by the transit bus. The trial judge concluded Onebane swayed the transit bus partially unto the shoulder in order to avoid the school bus and in so doing struck the partially opened door of Mr. Mitchell’s car.

In Canter v. Koehring, 283 So.2d 716 at page 724, the Supreme Court set the standard of review as follows:

“When there is evidence before the trier of fact which, upon its reasonable evaluation of credibility, furnishes a reasonable factual basis for the trial court’s finding, on review the appellate court should not disturb this factual finding in the absence of manifest error. Stated another way, the reviewing court must give great weight to factual conclusions of the trier of fact; where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. The reason for this well-settled principle of review is based not only upon the trial court’s better capacity to evaluate live witnesses (as compared with the appellate court’s access only to a cold record), but also upon the proper allocation of trial and appellate functions between the respective courts.”

After a careful review of the record, we cannot say the trial judge committed manifest error. Considering the testimony of Mrs. Mitchell, that the car door had been opened to its fullest extent and then partially closed, the distance between her car and the traveled roadway, and the statement by Onebane at the time of the accident that he swerved the transit bus to avoid the school bus, there is ample evidence to support the trial judge’s conclusion. Based on this same testimony, it is also reasonable to conclude that the fact Mrs. Mitchell parked in that particular place or opened her door on the side of the moving traffic in violation of statutory provisions was not the cause in fact of the accident. Further, the mere violation of a prohibitive statute does not automatically constitute negligence. Weber v. Phoenix Assurance Co. of New York, 273 So.2d 30 (La.1973). Accordingly, we affirm his decision on liability.

It was of little moment whether the trial court on its own motion qualified Officer Boudreaux as an expert. The only testimony given by him which approached opinion evidence was his testimony as to the point of impact which in effect was nothing more than an identification of the place on the shoulder where he found the broken glass from the car door. This was a physical fact visible on examination at the scene and a fact which the examining officer is fully qualified to testify to as a lay witness. Notwithstanding the years of experience of the investigating officer, his testimony required no greater expertise than that possessed by a lay person. Hence, the trial judge erred in awarding an expert witness fee and taxing same as costs under the provisions of R.S. 13:3666. See Welton v. Falcon, 341 So.2d 564 (4th Cir. 1976). The officer is, however, entitled to a fee as a lay witness and such a fee may, under the provisions of R.S. 13:3671, be taxed as cost.

Mrs. Mitchell received medical treatment from Dr. John E. Lindner from March 14,1977 through May 30,1977. At the time of trial she was still complaining of pain in the rib area. Dr. Lindner’s report was stipulated in evidence. He diagnosed her injury as “severe emotional upset, acute cervico, thoracico sprain and severe contusion of the right chest and abdomen”. He prescribed “heat therapy, rest, analgesics, muscle relaxants, ultra-sonic and intramuscular combined therapy and regulated exercises”. When discharged on May 30, 1977, he felt she had fully recovered from her injuries. His charges were $65.00 for the initial examination plus $20.00 per visit for 18 visits or a total of $425.00. She missed some time from work but was uncertain as to the amount of time. The trial judge awarded $3,493.00 for the special damages and the general damages.

Greta Lee was treated by Dr. F. J. Padua from March 15, 1977 through June 27, 1977. His report was stipulated in evidence. Dr. Padua diagnosed her injury as a cervical sprain. He instructed her to apply moist heat to her neck at home and prescribed a muscle relaxant and an analgesic. She was seen at his office on twelve occasions between March 15, 1977 and June 27, 1977 when she received diathermy treatment. His total charge for the initial examination, tests, x-rays, offices visits and treatments was $262.00. She missed one day of work and was restricted from taking physical education while attending school. The trial judge awarded $2,277.00 for general and special damages.

No contradictory evidence was submitted by the defendants as to the injuries sustained or the treatment received by Mrs. Mitchell or Greta Lee. Although on the high side, we cannot say the trial judge abused “the much discretion” he has in setting the amount of the award. In the absence of such abuse the award by the trial judge may not be changed. Reck v. Stevens, 373 So.2d 498 (La.1979). Accordingly, the judgments of the trial court are amended to eliminate the expert witness fee of $100.00 awarded to Officer Bou-dreaux and as amended affirmed. Costs of appeal to be borne by the defendants, Louisiana Transit Company, Inc., Joseph One-bane, Jr., and their insurer, The Transit Casualty Company.

AMENDED AND AFFIRMED.


text:
    Lennora Price, widow of Elmo PRICE, Deceased v. Larry HOOPER, Rory Cartier, et al.
    No. 5-7.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 11, 1982.
    Edward J. Rice, Jr., Rebecca A. Bush, Adams & Reese, New Orleans, for defendant-appellee (third party).
    Francis G. Weller, Deutsch, Kerrigan & Stiles, New Orleans, for defendant-appellant.
    Before BOUTALL, CHEHARDY and KLIEBERT, JJ.
   KLIEBERT, Judge.

This is an appeal by Continental Casualty Company from the trial judge’s dismissal of its third party petition against Appalachian Insurance Company. The case was dismissed on an exception of no cause of action filed by Appalachian. We affirm.

Lennora Price, the widow of Elmo Price, brought a tort action for damages arising out of the death of her husband in an accident while he was at work in a pumping station in the City of Kenner. Made defendants in this suit were the City of Ken-ner, its Sewerage District No. 1 and various supervisory employees of the City of Ken-ner or of Sewerage District No. 1 of the City of Kenner, including Joseph Donald Waguespack, a foreman for the sewerage district. Continental was alleged to be the insurer of all of the defendants and made a party defendant. Continental answered the suit on behalf of itself; the City of Kenner; Joseph Yenni, its Mayor; and Larry Hooper, the councilman for the sewerage district. Joseph Donald Waguespack, along with the other co-defendants, including the members of and employees of the sewerage district, filed an answer through their attorney, Mr. Bodet.

Several years later, in August, 1980, Joseph Donald Waguespack filed a third party demand against Continental contending that he was an insured under the policy issued by Continental to the City of Kenner, Sewerage and Water Board District No. 1, and hence was owed a defense and, if need be, indemnity against Mrs. Price’s claim. Continental answered the third party petition denying it was the insurer of Wagues-pack. In addition, it filed a third party petition against Appalachian alleging Appalachian as the insurer of Waguespack had originally hired an attorney to defend him and should be made to now publically defend him and, if need be, indemnify him. The third party petition also asked that Continental be relieved of any obligation to defend Waguespack. It is the trial judge’s dismissal of Continental’s third party petition against Appalachian on an exception of no cause of action which is the subject of this appeal.

Counsel for Continental argues that its third party petition is in the nature of a request for a declaratory judgment. Poynter v. Fidelity & Casualty Company of New York, 140 So.2d 42 (3rd Cir. 1962) and hence should have been maintained. Appalachian’s counsel argues that under CCP Article 1111 and Karam v. St. Paul Fire & Marine Insurance Co., 281 So.2d 728 (La.1973); Fasullo v. American Druggists’ Insurance Co., 262 So.2d 810 (4th Cir. 1972), and Fremin v. Collins, 194 So.2d 470 (4th Cir. 1967), the third party petition was properly dismissed because the petition does not allege that Appalachian is a warrantor of Continental or that it may be liable to Continental, a prerequisite to maintaining the third party petition.

The issue is not whether Continental can bring an action for a declaratory judgment against Appalachian, but rather, whether Continental can maintain a third party action against Appalachian in this proceeding. La. CCP Article 1111 and the jurisprudence above cited is dispositive of the issue presented. Under CCP Article 1111 in order to maintain the third party demand, Continental is required to allege that Appalachian is its warrantor or is liable to it. Since Continental’s petition does not meet the requirement, the trial judge properly dismissed the third party petition. Accordingly, his judgment is affirmed. All costs to be borne by appellant.

AFFIRMED.


text:
    Joan Brunet REESE v. Rickey D. REESE.
    No. 5-12.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 11, 1982.
    Writ Denied July 2,1982.

      Roland A. Ditta, Gretna, for plaintiff-ap-pellee.
    Jesse S. Guillot, New Orleans, for defendant-appellant.
    Before BOUTALL, CHEHARDY and KLIEBERT, JJ.
   KLIEBERT, Judge.

On January 15, 1981, the trial judge rendered judgment in a proceeding for divorce brought by the wife against the husband for a full divorce based on adultery. The judgment granted the divorce as prayed for, gave custody of the two children born of the marriage to the wife and ordered continued support payments of $100.00 per week for the two children of the marriage plus medical expenses.

The defendant husband appealed from that portion of the judgment dismissing his rule to reduce the child support payments. On appeal, the husband assigns as error the trial judge’s refusal to consider the husband’s obligations to support the children born from his illicit relationship with the person named in the divorce proceeding as the adulteress. He also assigned as error the amount of the support award on the ground that it exceeded two-thirds of the defendant husband’s take home pay.

In his reasons for judgment, the trial judge found the defendant husband failed to prove that he had a reduction in income or what his income was. Although the defendant husband claimed to have a gross income of $1200.00 per month and a net take home pay of $800.00 per month, he did not produce payroll stubs, letters from his employer, or other documentary evidence to support his contentions. Further, we note that although the defendant husband contended the $400.00 deductions between gross and net take home pay was for mandatory social security and income tax deductions, it is apparent the deductions also included voluntary deductions which ultimately enured to the husband’s benefit.

The trial judge found that the $50.00 per week per child plus the payment of medical expenses was not an excessive burden on the defendant. The debts which the defendant husband now complains of are entirely the results of his refusals to pay the support and alimony awards set by the court during the pendency of the divorce proceedings. The record is repleted with efforts of the wife to force compliance with the court’s awards and the husband’s refusal to comply.

After a review of the record, we concur in the trial judge’s finding and further believe $50.00 a week is not sufficient to support a child. Further, we see no merit in the husband’s argument that the trial judge’s failure to take in consideration the defendant’s obligations to support the two children born of his illicit relationship amounts to discrimination against these children. The husband created the problems he is now confronted with as well as the obligations he is required to meet under the law. The husband cannot defeat the obligations he has to support his children by merely asserting his income is insufficient. If in fact his income is insufficient, or he is unable to earn sufficient income to meet all of the obligations he has incurred for himself, then his remedy is to file a rule to change the support awards. In such a rule, it would be incumbent upon him to prove as a fact what he now seeks to argue is fact. As we view it, the trial judge’s ruling was a finding that the husband failed to prove his income. Having failed to accomplish this, then the husband neither proved there was a reduction in his former income nor that the awards for the support of his two children born of his marriage were excessive. We cannot say the trial judge committed manifest error in making that finding and hence can only affirm his ruling. Canter v. Koehring, 283 So.2d 716 (La.1973).

For the reasons above stated, therefore, the judgment of the trial court is affirmed. All costs to be borne by appellant.

AFFIRMED.


author: KLEES, Judge.

text:
    Lawrence R. DeMARCAY, Jr. v. Eileen Kuebel, wife of Lawrence R. DeMARCAY, Jr.
    No. 12897.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 11, 1982.
    Harry R. Cabral, Jr., Metairie, for plaintiff-appellee.
    Emile L. Turner, Jr., Turner & Young, New Orleans, for defendant-appellant.
    Before KLEES, BYRNES, and CIACCIO, JJ.
   KLEES, Judge.

This is an appeal from a judgment reducing child support payments from $1,500.00 per month to $1,000.00 per month.

In April of 1979, concurrent with a separation proceeding, Lawrence T. DeMarcay, Jr., was ordered to pay $500.00 per month alimony pendente lite and $1,500.00 per month for support of his three minor children. In July of 1979 the previous judgment was reaffirmed; and in addition Mr. DeMarcay was ordered to pay school expenses, as well as medical, dental and orthodontic expenses of the children on present insurance policies and hospitalization plans.

Subsequently, a proposed settlement of the community was submitted by Mr. De-Marcay’s attorney. After extensive negotiations and revisions, the settlement was agreed to. Among the items agreed to was that a divorce would be secured on the basis of mutual fault to foreclose Mrs. DeMar-cay’s rights to permanent alimony; second, child support would be fixed at $1,500.00 per month plus all the other items of child care previously awarded.

Soon thereafter the parties were granted a judgment of divorce based on mutual fault and the child support was set within the terms of the community property settlement agreement which was executed the same day as the divorce.

Two months after this, Mr. DeMarcay, through new counsel, filed a rule to reduce the child support, asserting that the settlement of the community had changed Mrs. DeMarcay’s financial condition. After a hearing, judgment was rendered in favor of the plaintiff-in-rule reducing the child support payments to $1,000.00 per month. Appellants contend that execution of the compromise settlement of the community of acquets and gains, concurrently with the judgment of divorce, child support and visitation rights, did not represent a change of circumstances which would allow the reduction of child support and that the trial court abused its discretion in reducing the child support. We agree.

Parents share the obligation of supporting, maintaining and educating their children and the degree of support is to be determined according to the need of the child and the ability of the parent who is to pay it. C.C. Art. 227 & 231; Graval v. Graval, 355 So.2d 1057 (La.App. 4th Cir. 1978).

Child support judgments are subject to modification; however, the burden of proof rests upon the parent seeking an increase in child support to show that there has been a substantial change in circumstances from the time of the initial decree. Edler v. Murray, 360 So.2d 205 (La.App. 4th Cir. 1978). This same burden rests with the parent who seeks a reduction in child support. Furthermore, the courts are instructed to look to the totality of the circumstances involved in making a determination as to child support. LaBalle v. LaBalle, 352 So.2d 330 (La.App. 4th Cir. 1978).

Just two months after the initial decree of child support the plaintiff-in-rule alleged that there was substantial change in circumstances as a result of the community property settlement which justified a reduction in child support. Although the trial court agreed, we find that the totality of the circumstances does not indicate a substantial change requiring a reduction in child support payments.

The record reveals that Mr. DeMarcay remembers meeting with his former wife in her attorney’s office a few days prior to their divorce. He testified that at that meeting the parties discussed amending the suit in order to obtain a divorce based on mutual fault. He stated further that child support and child care as well as the community property settlement was also discussed at the meeting and that all of these things were explained to him by his attorney who was also present at the meeting.

Perhaps the key elements which indicate that a change in circumstances did not occur is that the plaintiff-in-rule was aware of what his wife would receive in this property settlement and despite this he admitted to testifying at the divorce that paying $1,500.00 per month in child support was acceptable to him. If $1,500.00 per month was acceptable to him at that time, then it is reasonable to conclude that, plaintiff knew what his wife would receive as a result of the property settlement which was signed after the divorce. Thus, he should not be allowed to argue that the property settlement has resulted in a change of circumstances just two months later. The only real change in circumstances shown in the record is that since the initial decree some interest had accumulated on existing mortgage loans and we find this change is not substantial. The record does not disclose any change in circumstances in the needs of the children nor was any alleged.

As we must assume the parties negotiated and contracted with one another in good faith, knowing what the terms of the settlement would be prior to the divorce, and incorporating these terms into the divorce judgment we cannot now allow plaintiff-in-rule to say there has been a material change in circumstances.

Accordingly, the judgment of the trial court on June 27, 1980, reducing the child support of the three minor children to $1,000.00 per month is hereby reversed; and the original judgment of February 28, 1980 is reinstated. Costs of this appeal to be borne by appellee.

REVERSED AND RENDERED.


text:
    Lennah TURNER v. NEW ORLEANS PUBLIC BELT RAILROAD.
    No. 12927.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 11, 1982.
    Marie A. Moore, Harry S. Hardin, III, Jones, Walker, Waechter, Poitevent, Carr-ere & Denegre, New Orleans, for defendant-appellee.
    Michael D. Cucullu, Houston, Tex., for plaintiff-appellant.
    Before KLEES, BYRNES and CIACCIO, JJ.
   KLEES, Judge.

Lennah Turner was employed by New Orleans Public Belt Railroad as a machine operator. In August of 1979 he filed suit against Public Belt claiming that on March 1, 1979, while lifting a railroad tie to the back of a truck with four co-employees he suffered an inguinal hernia. He alleged that Public Belt’s negligence caused his injuries and sought damages under the Federal Employer’s Liability Act. The trial court found that Turner sustained a hernia while lifting the tie, that Public Belt’s negligence was a proximate cause of his injury, but that Turner had also been guilty of contributory negligence. The Court then awarded $5,000.00 to Turner. Turner has appealed the finding that he was contribu-tbrily negligent and the Railroad has answered the appeal seeking reversal or a reduction in the damage award.

The facts are that on March 1, 1979, Mr. George Stoulig, a supervisor for the railroad ordered four men, including the plaintiff, to help the dump truck driver load twelve seventeen foot cypress railroad ties onto the back of a dump truck. To load the ties onto the truck, four men, two at each end, would lift the tie and carry it to the truck. The two men in the front would then lift the tie onto the back of the truck and work their way back to help the two men in the back push the tie further into the back of the truck. The plaintiff, who was one of the men on the front end of the tie injured himself when lifting the tie onto the back of the dump truck.

STANDARD OF REVIEW

“The scope of review by state appellate courts in reviewing federal statutory actions, such as FELA cases tried in state courts, is the same scope of review as is applicable in the federal court system. Trahan v. Gulf Crews, Inc., 260 La. 29, 255 So.2d 63 (1971); Broussard v. Missouri Pac. R. Co., 376 So.2d 532 (La.App. 3rd Cir. 1979).
The applicable standard of federal appellate review is prescribed in Rule 52(a) of the Federal Rules of Civil Procedure and is set forth and discussed by Mr. Justice Reed in United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 541, 92 L.Ed. 746 (1948), as follows: “That rule prescribes that findings of fact in actions tried without a jury ‘shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses’ . ..
A finding is ‘clearly erroneous’ when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.”

Determination of negligence and contributory negligence are tested under the “clearly erroneous” rule. McAllister v. United States, 348 U.S. 19, 75 S.Ct. 6, 99 L.Ed. 20 (1954); Black v. Greyhound Corporation, 314 F.2d 485 (CA5th 1963); Carrier v. United States, 369 F.2d 322 (CA5th 1966) cert. denied, 386 U.S. 1027, 87 S.Ct. 1388, 18 L.Ed.2d 470; Bethlehem Steel Corp. v. Yates, 438 F.2d 798 (CA5th 1971); Nelson v. Jacksonville Shipyards, Inc., 440 F.2d 668 (CA5th 1971).

The appellant contends that the trial court’s finding that the plaintiff was con-tributorily negligent was “clearly erroneous”.

Presumably the basis for this finding was in the belief that the plaintiff tripped over the railroad track and injured himself as a consequence of carrying the tie and failing to watch where he was going.

The language relied upon by the appellee in support of the trial court’s finding lies in a portion of the direct examination of plaintiff:

Q. What were you doing?
A. Loading switch ties.
Q. Can you describe for me specifically what type of activity you were engaged in when you first noticed anything?
A. Well, I stumbled coming to the truck. When you are carrying weight of that type, you don’t look down, you try and keep your head up, and keep your balance. When I got to the truck, I must have still been off balance. When I lifted the tie up, I felt a hurtness sensation, ripness.
Q. Did you feel anything when you stumbled?
A. Sir, I didn’t notice.

It is reasonable to. assume that the trial court concluded that the stumbling caused a chain of events which resulted in his lifting the tie while off balance. From our reading of the record we cannot conclude that this finding was “clearly erroneous”.

The court must next consider whether the trial court erred in finding that the defendant was negligent. The trial judge did not indicate in his findings exactly how the defendant was negligent, but from a careful review of the record it appears that the defendant was negligent in failing to assign a sufficient number of men, or a sufficient work force to move the railroad ties manually. The record discloses that moving the ties through the use of a burrow crane was the safest method. However, the only burrow crane available was not in working order.

Thus, the real question facing this court should be whether the work force assigned for this task was sufficient. Based upon totality of the circumstances we conclude that the work force assigned to the task was insufficient.

The record reveals that four men were actually lifting these railroad ties. The ties, seventeen feet in length, were the largest used by the railroad and weighed approximately 240-250 pounds each. The other three men who helped move the ties testified that they remembered using as much as six men and one of the men, Manuel Sims stated that as many as eight (8) men were once used to move ties ranging from 9-16 feet in length. Considering that only four men were used in the present situation it was plainly foreseeable that a worker could sustain the type of injury suffered by the plaintiff while lifting the railroad ties onto the dump truck.

Finally, the appellees argue that the injury sustained by the plaintiff was not a result of the incident in question. There was conflicting medical testimony but the plaintiff did undergo surgery after the incident and the surgery did disclose and correct an indirect inguinal hernia. The plaintiff testified that he had no such problem prior to March 1, 1979 and the defendants produced Dr. Alvin Smith who testified that he diagnosed the same problem when he examined the plaintiff in 1972. This finding was disputed by Dr. Dabney Ewin who testified that it was his opinion that the plaintiff did not have a hernia of any kind between 1970-1979. Nevertheless, the trial judge obviously felt that the plaintiff was truthful and accepted his testimony as the true account of when he sustained the hernia. Under these circumstances we conclude that the trial judges determination that the hernia was sustained by the plaintiff on March 1, 1979 was not “clearly erroneous”.

The special damages totalled $8,304.35, the duration of his treatment after surgery appears to have lasted approximately six (6) months. In addition the plaintiff did have two visits with his doctor on December 21, 1979 and January 7, 1981. The plaintiff also wears a support device which he claims is uncomfortable. However there was testimony from Dr. Ewin that such a device is unnecessary.

As cited by the appellant, Mileski v. Long Island RR. Co., 499 F.2d 1169 (C.A. 2nd 1974) holds that the measure of recovery for pain and suffering is fair and reasonable compensation, to the extent that injuries, pain and suffering can be translated into dollars. In view of the facts as elicited above, and the nondisabling nature of plaintiffs injuries we conclude that the amount of $5,000.00 awarded plaintiff was correct. As in all cases concerning damages the award given by the trial judge must be considered to have been an abuse of his discretion before it can be reversed or modified on appeal. Bailey v. Pacific R. R. Co., 383 So.2d 397, 403 (La.App. 3rd Cir. 1980) cert denied 385 So.2d 784 (La.1980).

Accordingly, the judgment of the trial court is affirmed.

AFFIRMED.


text:
    Frances J. WASHINGTON v. NEW ORLEANS PUBLIC SERVICE, INC., Edward Le Brauf, Jerrold Wright.
    No. 12906.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 11, 1982.
    James Maher, III, New Orleans Public Service, Inc., New Orleans, for defendants-appellants.
    Harry E. Forest, David Gertler, Donald M. Pierce, Gertler & Gertler, New Orleans, for plaintiff-appellee.
    Jarrold Wright, in pro per.
    Before KLEES, BYRNES and CIACCIO, JJ.
   KLEES, Judge.

Plaintiff, Mrs. Francis J. Washington, a passenger on a New Orleans Public Service, Inc. (NOPSI) bus brought suit against NOPSI, Edward Le Brauf, its driver and Jarrold Wright, the driver of a vehicle which was involved in an accident with the bus. The suit was to recover for injuries Mrs. Washington received as a result of the collision.

The trial court rendered a judgment in favor of plaintiff and against defendant Jarrold Wright, dismissed the suit against NOPSI and its driver but east court costs against all defendants in solido. From this assessment of court costs, NOPSI and its driver appeal.

As in Bowman v. NOPSI, 410 So.2d 270 (La.App. 4th Cir. 1982) No. 12572; and Walton v. NOPSI, 413 So.2d 527 (La.App. 4th Cir. 1982), we can find no equitable consideration here to justify the taxing of costs against NOPSI and its driver.

Accordingly, the judgment appealed from is amended to require NOPSI and its driver, Edward Le Brauf, to bear their own costs. In all other respects the judgment is affirmed.

AFFIRMED IN PART, AMENDED IN PART.


author: AUGUSTINE, Judge.

text:
    Delores M. TOUSSANT, et al v. Anne Ferguson GUICE, et al.
    No. 12654.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 11, 1982.

      Lawrence A. Milly, New Orleans, for plaintiffs-appellants.
    David M. Packard, Metairie, for defendants-appellees.
    Before SCHOTT, LOBRANO and AUGUSTINE, JJ.
   AUGUSTINE, Judge.

On February 25,1979, a fire originated in a house located at 5334 Constance Street and spread to the adjacent residence of John and Delores Toussant, completely destroying both houses.

The Toussants filed this action for damages against the owners of the adjacent property, Jerry and Anne Guice for allowing the fire to spread to their house.

Upon trial of this matter, judgment was rendered in favor of the defendant. The plaintiff now seeks reversal of that judgment claiming, first, that Mr. Guice is strictly liable for the destruction of the Toussant home, under Louisiana Civil Code Article 2317. Alternatively, plaintiff argues that the fire which began on Guice’s property was caused by the owner’s negligence, and that the damage to his house is remediable under Art. 2315.

We shall address plaintiff’s demands in that order.

Strict Liability under Art. 2317

The plaintiff’s principal reliance is upon Art. 2317, as interpreted by Loescher v. Parr, 324 So.2d 441 (La.1975). There it was held that:

“When harm results from the conduct or defect of a person or thing which creates an unreasonable risk of harm to others, a person legally responsible under those code articles for the supervision, care, or guardianship of the person or thing may beheld liable for the damage thus caused, despite the fact that no personal negligent act or inattention on the former’s part is proved. The liability arises from his legal relationship to the person or thing whose conduct or defect creates an unreasonable risk of injuries to others.” Id. at 446.

In the present case, the cause of the fire on defendant’s premises could not be determined, according to Fire Inspector Mark Jee, who surveyed the rubble within hours after the event.

Thus unable to name any specific thing within Guice’s house as the “defect” which caused the fire, appellant nevertheless seeks to bring this case within Loescher, supra, by asserting that the fire itself was the defect which caused the harm. Plaintiff urges that a house afire is, by that very fact, a defective house.

We disagree. The word “defect”, however legally defined, implies an imperfection or deficiency which inheres with relative permanence in a thing as one of its qualities. But the fire which razed defendant Guice’s residence was a wholly extraneous force, and thus cannot seriously be regarded as a “quality” of the house itself. It follows that we should not regard the fire as a defect.

Plaintiff has cited no case, nor can any be found, where a property owner has been held strictly liable under Art. 2317 for the spread of fire from his premises to adjacent property, absent proof of a defective thing within the property owner’s custody which caused the fire. See Jinks v. McClure, 344 So.2d 675 (La.App. 3rd Cir. 1977); Narcisse v. Fontcuberta, 359 So.2d 1342 (La.App. 4th Cir. 1978).

In those cases where strict liability is applied to property owners for damage to adjacent property, the plaintiff is required to prove more than the mere fact that the fire originated on defendant’s premises. He must prove, under Art. 667 of our Civil Code, that the fire was caused by the defendant’s use of the premises to conduct an ultrahazardous activity. Charia v. Stanley, 359 So.2d 291 (La.App. 4th Cir. 1978); Morales v. Houston Fire and Casualty, 342 So.2d 1248 (La.App. 4th Cir. 1977).

Plaintiff’s theory of recovery, if allowed, would supplant the function of Art. 667 and the jurisprudence interpreting it. Loescher does not go so far as to render Art. 667 superflous in cases involving the spread of fire to adjacent property. Accordingly, we find no liability under Art. 2317, absent proof that a defective thing within Guice’s garde caused the fire.

Plaintiff’s claim of negligence

Plaintiff alleges, among other things, that defendant Guice was negligent in allowing vandals to go upon his property after workmen left the construction site each evening; that Guice negligently maintained the premises in such a dangerous condition as to constitute a hazard to surrounding property; that Guice failed to maintain proper supervision of those in his employ during the renovation; and that he failed to properly shore up a raised building.

Before discussing the question of defendant’s negligence, we will elaborate further as to the relevant facts.

Jerry and Anne Guice were the owners of an early nineteenth century one-story house located at 5334 Constance Street in New Orleans. A number of months before the fire, the Guices began extensive renovation of this building, their intention being to create a two story triplex. To this end, they engaged the services of architect Frank Lopreore to supervise the renovation.

Aside from occasional acts of vandalism to the premises by neighborhood youth, the renovation proceeded smoothly. The house was first moved from its original location on the defendant’s lot and placed parallel to plaintiff’s so that along its entire length it was within four feet of plaintiff’s residence. The Guices’ house was then raised to accommodate construction of a new first story underneath the old structure. Throughout these initial phases of construction, the house was supported by shoring timbers and steel “I” beams. A concrete slab was poured at the site in early February, 1979 and frame work was begun shortly afterward. With the completion of the frame, the shoring timbers were removed.

Throughout the entire period of renovation, the architect expanded the routine precautionary practices to include extraordinary measures for the protection of neighboring properties and passageways. Doors and windows were boarded up to prevent or at least to discourage entry by vagrants. Special attention was given to maintaining the site in a “broom-clean” condition. At the end of each working day, laborers removed their tools from the property altogether. Except in the early stages of construction when electricity was borrowed from a neighboring house, the site had no source of electricity whatsoever other than a portable compressor, which was never allowed to remain on the property after working hours. There was no natural gas used on the premises, nor were gas lines even connected to the site. There were no rags, nor paint cans, nor any combustible materials of any kind left on the property. Mr. Lopreore, the architect, visited the project virtually every working day to supervise construction and to be personally assured that the precautionary measures were carried out.

While the Guices’ house was in the above-described condition on February 25, 1979, the structure caught fire, enveloping itself and the adjacent Toussant residence in flames which reduced each house to rubble.

As stated earlier, the fire inspector was unable to determine the cause of the fire or even the point of its origin within the defendant’s house. Plaintiff’s witnesses were similarly unable to explain the cause. Their testimony was, for the most part, limited to a description of the effect of the fire on their own premises.

The plaintiff bears the burden of proving his case by a preponderance of the evidence, either direct or circumstantial. Proof by direct or circumstantial evidence is sufficient to constitute a preponderance of the evidence when, taken as a whole, such proof shows that the fact or causation sought to be proved is more probable than not. Boudreaux v. American Insurance Company, 264 So.2d 621 (La.1972).

In this case, plaintiffs urge that the doctrine of res ipsa loquitur should be applied as a rule of circumstantial evidence. The rule operates so as to infer negligence on the part of a defendant because the facts indicate this to be the more probable cause of injury in the absence of other as-plausible explanations by witnesses found credible. Pilie v. National Food Stores of Louisiana, 245 La. 276, 158 So.2d 162 (1963); Larkin v. State Farm Mutual Auto Ins. Co., 233 La. 544, 97 So.2d 389 (1957). By this principle, where properly applied, the circumstantial evidence indicates that the injury was caused by some negligence on the part of the defendant, without necessarily proving just what negligent act caused the injury. Boudreaux, supra at 636.

Aside from functioning as a rule of circumstantial evidence, the doctrine of res ipsa loquitur has the additional effect of shifting the burden of proof to the defendant to explain the cause in those cases where the facts shown suggest the negligence of the defendant as the most plausible explanation of the accident. King v. King, 253 La. 270, 217 So.2d 395 (1968).

Before the doctrine can come into play, however, the plaintiff must first establish facts such as to warrant the inference that the injury would not have occurred without the defendant’s negligence. The initial burden of proof remains with the plaintiff.

The mere occurrence of a fire does not justify the inference of negligence, since fires may occur from many separate and distinct causes. Barber v. Books, etc., Inc., 316 So.2d 154 (La.App. 4th Cir. 1975); Prosser, Law of Torts, 4th Ed., 1971, § 39. Unless plaintiff carries the initial burden of proof by demonstrating through direct or circumstantial evidence that the inference of negligence on the part of defendant is justified, the doctrine cannot be applied.

Application of the principle of res ipsa loquitur is defeated if an inference that the accident was due to a cause other than defendant’s negligence could be drawn as reasonably as one that it was due to his negligence. Pilie, supra, 158 So.2d at 165.

In the present case, the uncontra-dicted evidence establishes that neither the defendants nor any of their agents (the construction workers) were on the premises at all on the day of the fire. The site contained no combustible materials and was kept in an extraordinarily clean condition. There was no gas or electricity connected to the property. By plaintiff’s own admission, on the other hand, vandals had entered the premises on at least two occasions. The inference that the fire was accidently or intentionally caused by vandals is at least as reasonable (if not more reasonable) as the inference that it was caused by defendant’s negligence. We therefore cannot apply the doctrine of res ipsa loquitur.

Appellant asserts that Keller v. Kelly, 378 So.2d 1006 (La.App. 4th Cir. 1980) should nevertheless govern the outcome of this suit. There it was held that although res ipsa loquitur could not apply (due to plaintiff’s failure to carry the initial burden of proof as to cause of the fire) liability could still be imposed upon the defendant landowner for the death by fire of his tenant. Plaintiff relies upon Keller for the principle that where the cause of a fire is unknown, but the plaintiff has proved that the fire was not caused by his own negligence, the defendant landowner must be held liable unless he proves that the fire was not his fault. Plaintiff especially relies on this language:

“Defendant owners, like plaintiff, were unable to establish the cause of the fire. They thus were unable to exculpate themselves and the jury verdict holding them liable was therefore correct.” Keller, supra, at 1009.

Keller is inapposite to the present case. There, the extraordinary burden of proof was imposed upon the defendant solely by virtue of the contractual relationship between defendant and plaintiff as lessor and lessee. That relationship carries its own special duties and obligations which do not apply to the relationship between ordinary adjacent landowners. See La.C.C. Arts. 2693-2695.

Having failed to prove a causal defect in defendant’s premises under Art. 2317 and having failed to carry the burden of proof as to defendant’s negligence under Art. 2315, plaintiffs cannot prevail in this matter.

Accordingly, the judgment of the trial court is affirmed.

AFFIRMED.


text:
    G. WOODWARD JACKSON CO., INC. v. William CRISPENS and Gilbert Safrastine, d/b/a Hopedale Crab Company; Carl Fontenot; Alec Metcalf, d/b/a A & L Seafood Company; and One Continental Boiler.
    No. 12659.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 11, 1982.
    Louis G. Gruntz, Jr., Jefferson, for plaintiff-appellant.
    Kirk Vaughn, Edward S. Bopp, a Law Corp., Arabi, for defendants-appellees.
    Before SCHOTT, AUGUSTINE and L0-BRANO, JJ.
   AUGUSTINE, Judge.

This is an action de in rem verso brought in personam by plaintiff repairman G. Woodward Jackson to recover $2,246.12 from defendant landowner Carl Fontenot for the cost of repair to a boiler. Also named as defendants are the defendant’s former lessees William Crispens and Gilbert Safrastine, d/b/a Hopedale Crab Company and Alec Metcalf d/b/a A & L Seafood Company.

The action is also brought in rem against the boiler whose uncompensated repairs have occasioned this suit.

As this matter is before us to review the trial court’s finding of no cause and no right of action against defendant Fontenot we will regard as true the following allegations, as set out in plaintiff’s petition;

In May, 1980, G. Woodward Jackson entered an oral contract with William Cris-pens and Gilbert Safrastine, d/b/a Hope-dale Crab Company, to furnish repairs to a boiler located at their place of business. At the time he entered the agreement, Jackson was under the mistaken impression that the premises upon which the boiler was located, and the boiler itself, were owned by the crab company, this belief having been born as a result of certain representations of ownership by Crispens and Safrastine. At no time was Fontenot, the lessor, given notice of repair nor did he have any knowledge of the contract.

Repair of the boiler was completed in June, 1980 at a cost of $1,525.12. Crispens and Safrastine refused to pay Jackson’s bill, however. They later terminated their lease with Fontenot by unexpectedly evacuating the premises. Their whereabouts are to this day unknown to plaintiff, who has cause to believe they have left the State.

By September, 1980, a new lessee, Alec Metcalf d/b/a A & L Seafood Company, had taken over the premises. Again, the boiler needed repair, and again plaintiff was called upon to fix it. Metcalf refused to pay the $721.00 repair bill.

Plaintiff later learned that Carl Fontenot was the owner of the premises, and that the two seafood companies with whom he had earlier contracted were merely lessees. He served the bills for repair upon Fontenot, who refused to pay.

Following the institution of this action, the trial court sustained Fontenot’s exception of no cause of action. We affirm.

To prevail in this action, plaintiff’s petition must allege facts sufficient to satisfy the elements of unjust enrichment. There must be proper allegation of (1) an enrichment; (2) an impoverishment; (3) a connection between the enrichment and the impoverishment; (4) absence of legal justification for (1) & (2); and (5) absence of a remedy at law. Minyard v. Curtis Products, Inc., 205 So.2d 422 (La.1967).

Taken at face value, the above stated elements seem to require that wherever there is an enrichment of one person at the expense of another and this enrichment appears “unfair”, the law should right the matter by resort to natural justice.

The doctrine of unjust enrichment does not have an expansive mission, however. Its application is narrowed by the assignment of specific legal meaning to each of the elements which must be pleaded and proved. See Unjustified Enrichment in the Civil Law and Louisiana Law, 36 Tul.L. Rev. 605 (1962); 37 Tul.L.Rev. 49 (1963); see also Justice Tate, The Louisiana Action for Unjustified Enrichment, 50 Tul.L.Rev. 883 (1976) and 51 Tul.L.Rev. 446 (1977).

The present case does not come within the narrow limits of the doctrine’s application. Plaintiff’s petition fails to establish the most critical element of the actio de in rem verso, i.e., absence of legal justification for the enrichment.

An enrichment has legal justification when it flows from the proper application of a rule of law or contractual provision. Stated in the converse, the actio de in rem verso must be denied when the relief sought by plaintiff would subvert the purpose of a rule of law or of a contract. Tate, supra.

The rule of law which justifies the enrichment of the landowner in this case is Civil Code Article 2694, which protects a landlord from having to reimburse the tenant for repairs to the premises unless the tenant gives sufficient notice to the landlord of the need for repair and of his intent to have the work performed. Our jurisprudence has consistently enforced Art. 2694 so as to deny recovery of expenditures for repair by a lessee when the lessor was given no notice of lessee’s intent to repair. Brignac v. Boisdore, 288 So.2d 31 (La.1973); Mullen v. Kerlec, 115 La. 783, 40 So. 46 (1905); Hartz v. Stauffer, 163 La. 382, 111 So. 794 (1927); Ellis v. Brenner, 34 So.2d 633 (La.App. 2nd Cir. 1948). Implicit in each of these decisions is the legislature’s purpose to protect the lessor from a repair contract to which he is not a party. That purpose would be subverted if we were to recognize plaintiff’s claim in this case.

We find no reason to allow the mechanic to stand in a better position, vis-á-vis the landlord, than the tenant himself. Accordingly, we find that defendant’s enrichment is justified by Article 2694 of the Louisiana Civil Code.

This result is consistent with Young v. Coen, 53 So.2d 508 (La.App.2d Cir. 1951). There, materialmen and repairmen sought recovery from a landlord for renovation of his premises. The contract under which the work was performed did not include the landlord as a party — the plaintiffs had relied upon the tenant’s misrepresentation that she was the owner of the premises. The landlord had no knowledge of this misrepresentation, now did he know that the renovation was underway. When it was discovered that the lessee, who had become insolvent, was not the true owner of the property, plaintiffs filed liens against the landlord’s premises. The Court held for the landlord, reasoning that inasmuch as the landlord had not been a party to the renovation contract, and because the lease required notice to the landlord of any repairs by the tenant, the enrichment of defendant landlord was justified.

We follow the result and reasoning of Young v. Coen, supra, in holding that allowance of repairman Jackson’s actio de in rem verso would destroy one of the legislative purposes of Article 2694. It follows that Fontenot’s enrichment is legally justified.

For the reasons assigned, the judgment appealed from is affirmed.

AFFIRMED.


text:
    Roy H. GONZALES v. ST. BERNARD PARISH POLICE JURY.
    No. 12749.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 11, 1982.
    John F. Rowley, Dist. Atty., Parish of St. Bernard by V. J. Dauterive, Jr., Asst. Dist. Atty., Chalmette, for defendant-appellant.
    Robert L. Henderson, Jr., Slidell, for plaintiff-appellee.
    Before SCHOTT, LOBRANO and AUGUSTINE, JJ.
   AUGUSTINE, Judge.

The issue presented in this case is whether the St. Bernard Parish Police Jury violated Louisiana law by approving, on June 2, 1981, a plan for re-apportionment of the parish.

The law which governs the above question is La.R.S. 18:1903, which provides, in part:

“A. .. . Changes in election precinct boundaries shall be made to accomplish the purposes of this Section, as provided by the law for the establishment of precincts, prior to December 1, 1976, but shall take effect on and after January 1, 1977.
B. No election precinct shall be created, divided, abolished or consolidated, or the boundaries thereof changed from January 1, 1977 through December 31, 1981, unless ordered by a Court of competent jurisdiction, changed pursuant to a Court order or an order of the United States Attorney General, or by reason of an annexation, detachment, or other change in the boundaries of a municipality...”

On June 2, 1981 the St. Bernard Parish Police Jury adopted a resolution to re-apportion the parish. According to the plan, the parish is to be divided into eleven single member districts, described in words by the resolution and defined by the official map which was also approved by the same resolution.

As a practical matter, the June 2, 1981 re-apportionment plan divides and radically changes precincts 1, 2 and 3 of Ward “C” of St. Bernard Parish. The Police Jury’s resolution is therefore in clear violation of R.S. 18:1903(B) and contravenes the legislative purpose to maintain each election precinct intact until such time as population figures and statistics, available to the States through the Bureau of the Census of the United States Department of Commerce, could be properly brought to bear on the many deliberations involved in rational reapportionment.

We note, in this regard, that Senate Concurrent Resolution No. 2 of the 1981 First Extraordinary Session provides that the December 31, 1981 statutory deadline for the moratorium on precinct boundary changes shall be extended through the sixtieth day after final adjournment of the 1982 regular session of the legislature.

This extension underscores the legislative intent that re-apportionment be accomplished only after careful evaluation of statistical data derived from the Federal Bureau of Census. Any re-apportionment pri- or to the statutory deadline is conclusively presumed to have been decided upon without the benefit of that information, and is therefore in violation of the spirit and letter of Louisiana law.

Accordingly, the judgment of the district court finding the June 2,1981 re-apportionment to be violative of La.R.S. 18:1901 et seq. is affirmed.

AFFIRMED.

      . There is no designation of any precinct boundaries contained within the words of the resolution or on the official map, as required by La.R.S. 18:532 and R.S. 18:1903; and, at no time did the Police Jury submit a map defining the parish’s boundaries, wards or election precincts, or word descriptions of these boundaries, to the Louisiana Legislative Council, as required by La.R.S. 18:1903(C), or to the Registrar of Voters, the Secretary of State and the Commissioner of Elections, as required by La. R.S. 18:532.


text:
    Salvatore J. PERAINO v. Emanuella Lentini PERAINO.
    No. 12884.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 11, 1982.

      Charles A. Kronlage, Jr., Kronlage, Ditt-man & Maselli, a Professional Law Corp., New Orleans, for defendant-appellant.
    Peter J. Butler, Butler & Heebe, New Orleans, for plaintiff-appellee.
    Salvatore J. Peraino, pro se.
    Before BARRY, AUGUSTINE and WILLIAMS, JJ.
   AUGUSTINE, Judge.

Salvatore J. Peraino and Emanuella Len-tini Peraino were divorced by a judgment of June 30,1980. Mrs. Peraino, being without fault and in necessitous circumstances, was awarded alimony in the amount of $2,500.00 per month. In addition, she was allowed the continued use of the family home on Bancroft Drive in New Orleans, the fair rental value of which was stipulated by the parties to be $1,500.00 per month. Mrs. Peraino was also allowed the use of the family car, a 1979 Mercedes-Benz 450 SEL, whose stipulated fair rental value is $800.00 per month.

Following the judgment, Mrs. Peraino filed a motion for new trial, seeking to have the Court increase the amount of alimony. That motion was denied, and Mrs. Peraino now brings the present appeal, assigning as error the following:

1. The Lower Court erred in not holding the husband, Salvatore J. Peraino, responsible for the wife’s income tax liability resulting from the support income to be received by her.
2. The Lower Court erred in not granting the wife an amount sufficient for her maintenance, including those expenses necessary to maintain her residence and automobile.

SPECIFICATION OF ERROR NO. 1

Appellant contends that Article 160 of the Louisiana Civil Code obligates the former husband, Mr. Peraino, to provide an amount of alimony sufficient for Mrs. Per-aino’s maintenance. She urges that within the term “maintenance” is included the income tax liability generated by alimony payments made to the former spouse. Ducote v. Ducote, 339 So.2d 835 (La.1976); Bernhardt v. Bernhardt, 283 So.2d 226 (La.1973).

Appellant alleges that in fixing the alimony award, the trial court failed to take into consideration her tax liability, and therefore committed error under the rule of Ducote and Bernhardt, supra.

We find no error in the proceedings below regarding this issue. Appellant’s motion for new trial and the memorandum in support thereof were explicit as to the theory of recovery, claiming that “The judgment does not declare whether or not Salvatore Peraino will be responsible for the tax liability resulting to Mrs. Peraino, under the judgment of the court, or whether it is the court’s intention that the Two Thousand Five Hundred Dollars ($2,500.00) awarded to her is to include whatever that tax liability might be.”

In the trial court’s Reasons for Judgment, appellant’s argument concerning tax liability was expressly acknowledged. The Court then stated its reasons for denying the Motion for New Trial:

“Post divorce alimony under Louisiana Civil Code Article 160 is to be an amount sufficient to provide for the recipient’s maintenance. Maintenance includes food, clothing, shelter, and other basic necessities.”
“The Court feels that its award in these proceedings is in an amount sufficient to provide for those needs. See Boisfontaine v. Boisfontaine, 357 So.2d 90 [(La.App.)].”

It should be clear from the above that the court’s denial of the motion for new trial and for increase in alimony was based upon a full awareness of the law and the facts, and that the sum of $2,500.00 was intended by the trial court to include appellant’s tax liability on the alimony award.

A trial court’s award of alimony will not be disturbed unless there is an' indication that the court did not consider the tax consequences attributable to alimony in fixing the award. Meyer v. Meyer, 371 So.2d 1304 (La.App. 4th Cir. 1979). Finding ample evidence that the trial court did in fact consider the tax consequences arising in this case, we find no merit to appellant’s first assignment of error.

ASSIGNMENT OF ERROR NO. 2

During the Perainos’ ten-year marriage, their community garnered its considerable wealth from the ownership of Dixie Tomato and Packaging, Inc., (DIXIE), a closed, family corporation. Dixie’s average taxable income for the fiscal years 1977-1979 was in the neighborhood of $200,000.00, after sizeable deductions for promotion and entertainment as well as for automobile and travel expenses. These deductions were over and above payments made to pension, and profit sharing plans, which in the year 1979 alone, totalled $189,322.00. Salvatore J. Peraino, as the highest paid employee of Dixie, was the largest beneficiary of these pension and profit sharing plans.

As Dixie prospered, so did the community. Average gross taxable income to the Peraino family for each of the three years from 1977-1979 was approximately a quarter of a million dollars, reflecting, for the most part, Mr. Peraino’s salary as an employee of Dixie.

With these incomes, the Peraino family enjoyed virtually unlimited material freedom. Their opulent home on Bancroft in New Orleans was appraised at $450,000, not including the many expensive movables which enhanced the aesthetics of the Perai-no’s environment by approximately $40,000, according to the appraisal. The community also owned a condominium and an unimproved lot at Diamonhead in Mississippi. Other properties (including common capital stock in Dixie valued at $761,346.00) brought the value of the Peraino community to $1,910,625.44.

Mrs. Peraino stated in her testimony that she was a member of the Metairie, Timber-lane, and Chateau Estates Country Clubs, as well as the Yacht Club at Diamonhead; that she and Mr. Peraino were frequent travelers to Las Vegas, the Caribbean, Aspen, New York and Europe, averaging about three trips a year.

Suffice to say that the Perainos had been accustomed to a life style which, in appellant’s own words, involved unlimited travel, vacations, expense accounts, credit cards, country club memberships and the like.

Appellant, Mrs. Peraino asks us to revise the award of $2,500.00 per month in alimony because it is insufficient for her needs. The thrust of her argument is that “necessity” is a relative term which must be defined, for the purpose of alimony, in relation to the living habits of the awarded spouse, considering the type of home in which she resides, the type of food which she is accustomed to eating, the type of car driven by her and its attendant expenses, the type of clothing which she is used to wearing, etc.

Appellant acknowledges, first, that the legal premise for the award of post-divorce alimony is different from that of alimony pendente lite, and therefore that following divorce, the husband need not support his former spouse in the manner to which she had been accustomed. But the release of this obligation, she says, applies only to those expenses which are outside the sphere of “maintenance”, so that although the husband may no longer be obligated to support his wife’s travels, country club memberships, entertainment, etc., he is nevertheless bound to support her in the manner to which she is accustomed where it concerns food, clothing, shelter, etc.

Appellant contends that this conclusion is compelled by the fact that our jurisprudence reveals considerable variance from case to case in the amounts of alimony found to be sufficient to satisfy the wife’s needs: Bernhardt v. Bernhardt, 283 So.2d 226 (La.1973) awarded $650.00 per month; Ward v. Ward, 339 So.2d 839 (La.) allowed $400.00 per month; Ducote v. Ducote, 339 So.2d 835 (La.1976), $500.00 per month; Boisfontaine v. Boisfontaine, 357 So.2d 90 (La.App. 4th Cir. 1978), $1,500 per month. This variance, according to appellant, must be explainable by the peculiar living habits of each recipient; otherwise, all alimony awards would be the same.

At oral argument on the motion for new trial, appellant stated that:

“I’m not about to deny that this is an extremely high alimony award. In an ordinary situation, in an ordinary family, I wouldn’t be standing here arguing my client’s point, but this is a half-million dollar a year income — producing family, and the result is this family has cultivated an extremely high style of living.”

The proposition for which appellant argues so strenuously has been already considered and rejected by this court, most notably in Boisfontaine v. Boisfontaine, 357 So.2d 90 (La.App. 4th Cir. 1978). There, an alimony award of $2,222.22 per month was found to be excessive and was reduced to $1,500.00 per month. The reason for the reduction was that, in fixing the sum, the trial court failed to consider the wife’s needs, but focused instead on the husband’s ability to pay. And while a husband’s income, when substantial, may be considered in relation to the wife’s needs in setting alimony, the amount of the award is primarily based on needs and must have some basis in fact. Boisfontaine, supra, at 92.

In reducing the award in that case, we stated that the husband is not obligated to continue his former spouse in her former standard of living. We cited Ward v. Ward, 339 So.2d 839 (La.1976), which held that alimony after divorce is essentially different from alimony pendente lite in that the former is in the nature of a pension and is limited to basic necessities. This follows from the principle that after divorce, the husband’s obligation to support the wife no longer exists. Frederic v. Frederic, 302 So.2d 903 (La.1974).

The very purpose of alimony pendente lite, on the other hand, is to maintain the wife at a standard of living comparable to that which she enjoyed prior to her separation from her husband. Hall v. Hall, 348 So.2d 707 (La.App. 1st Cir. 1977); Langham v. Langham, 381 So.2d 1284 (La.App. 2nd Cir. 1980).

It is clear that in Boisfontaine, we intended the announced rule to apply to those expenses which fall within the ambit of “maintenance” — there were no other kinds of expenses at issue in that case. We reiterate, therefore, that as to those items of necessity which our jurisprudence has subsumed under the term “maintenance”, there is no obligation to support the former wife in the manner to which she was accustomed during her marriage.

The variance in alimony awards to which appellant refers is explained by Art. 160:

“. .. In determining the entitlement and amount of alimony after divorce, the court shall consider the income, means, and assets of the spouses; the liquidity of such assets; the financial obligations of the spouses, including their earning capacity; ... (and) any other circumstances that the court deemed relevant.”

In the present case, although the trial court indicated its belief that the appellant owned in excess of $40,000.00 in jewelry and questioned the wife’s veracity when she testified that $42,000 kept in the wife’s separate bank account was actually held there for her twenty-eight year old son (but that he did not yet know of its existence), the court nevertheless allowed the appellant the benefit of the doubt and awarded her $2,500.00 per month, plus the use of the family home on Bancroft Drive and the family car, a Mercedes-Benz 450 SEL. Appellant’s jewelry and the $42,000.00 held for the son were not regarded by trial court in setting that figure.

We see no reason to disturb that award. The trial court properly assessed all the relevant factors in setting the award, including, to some degree (although it was by no means bound to do so) the wife’s life-style during her former marriage. Transcript of argument for new trial, p. 5. The trial court also considered Mr. Peraino’s considerable wealth and future earning capacity, as it was bound to do. But most significantly, the court considered the wife’s basic needs, and awarded a sum which, in the trial court’s view, was “generous”.

We agree with that determination. Absent a clear abuse of the trial court’s great discretion — and we find none here — we will not revise an award of permanent alimony. Douglas v. Douglas, 385 So.2d 402 (La.App. 1st Cir. 1980), writ refused, 386 So.2d 358 (La.1980); Meyer v. Meyer, 371 So.2d 1304 (La.App. 4th Cir. 1979), writ refused, 373 So.2d 546 (La.1979).

For the reasons stated, the judgment of the trial court is affirmed.

AFFIRMED.

      . In June of 1980 when this case came to trial, the automobile was still relatively new, having been purchased on August 28, 1979. Mileage was 1,093, as of October of 1979.

      . P. 4 of transcript of oral argument, September 30, 1980.


text:
    Lynn B. DEAN v. Honorable William J. GUSTE, Jr., Attorney General, of the State of Louisiana, Honorable John F. Rowley, District Attorney for the Parish of St. Bernard and the St. Bernard Parish School Board.
    No. 12933.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 11, 1982.
    Writ Denied July 2,1982.

      John F. Rowley, Dist. Atty., Nunzio S. Cusimano, Jr., Asst. Dist. Atty., Chalmette, for defendants-appellees.
    Roy A. Raspanti, New Orleans, for plaintiff-appellant.
    Before BARRY, AUGUSTINE and WILLIAMS, JJ.
   AUGUSTINE, Judge.

The primary question which we are called upon to decide in this case is whether the rule of the St. Bernard Parish School Board prohibiting the sound recording of executive sessions by any member of the board violates the First Amendment to the United States Constitution.

Petitioner, Lynn B. Dean, is a member of the St. Bernard Parish School Board.

In February, 1981, the School Board, by a vote of 10 to 1, enacted a rule prohibiting the tape recordation of the proceedings of an executive session by any members of the board. Mr. Dean’s was the only dissenting vote cast.

On March 11, 1981, when Mr. Dean attempted to tape record the proceedings of an executive session of the School Board, he was advised by the board that his actions were in violation of the rule of February, 1981.

Petitioner thereafter instituted the present action for declaratory judgment, alleging that the statutory law regarding executive sessions of a public body (La.R.S. 4:1-12) gives no clear answer with respect to the question raised, i.e., whether petitioner may tape record the proceedings of an executive session of the school board.

In argument before the trial court, it was Mr. Dean’s contention that the law affords him the right to record executive sessions of the School Board in that:

1) the public is entitled to know the content of discussions at executive sessions of a school board when a question arises as to the propriety of that session;

2) a board member may publish his sentiments on any subject limited only by his responsibility for abuse of that freedom;

3) a board member has the right to publish the contents of the discussion of an executive session when he has reason to question the propriety of the proceedings and, as a consequence, he has the right to record these proceedings in any manner he sees fit;

4) it is not unlawful for a person who is a party to a conversation to tape that conversation.

In response to these arguments, the defendant contends that Louisiana statutory law confers .upon the School Board the right to adopt reasonable rules and regulations for the conduct of its business. In this regard, La.R.S. 17:81 provides:

“Each school board is authorized to make such rules and regulations for its own government, not inconsistent with law or with the regulations of the State Board of Elementary and Secondary Education, as it may deem proper.”

La.R.S. 17:6(10) allows the school boards of this State to adopt, amend or repeal rules, regulations and policies necessary or proper for the conduct of the business of the board.

Without addressing the constitutional issues raised by petitioner, the trial court found that the School Board’s rule was not arbitrary or unreasonable in light of Louisiana’s so-called Sunshine Law. Accordingly, it upheld the regulation under the authority of Estay v. Lafourche Parish School Board, 230 So.2d 443 (La.App. 1st Cir. 1969), which requires the courts of this State to uphold the rules and regulations adopted by school boards unless they are found to be arbitrary and unreasonable.

Petitioner now brings this appeal, urging the same grounds as before, but with apparent emphasis on the constitutionality of the School Board’s regulation. We think that the constitutional issues raised by the facts of this case warrant our consideration.

Petitioner seeks to invalidate the regulation as a prior restraint of speech, citing Near v. Minnesota, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357 (1931). The importance of that category to Mr. Dean’s position is that “any system of prior restraints comes to this Court bearing a heavy presumption against its constitutional validity.” Bantam Books, Inc., v. Sullivan, 372 U.S. 58, 70, 83 S.Ct. 631, 639, 9 L.Ed.2d 584 (1968); New York Times v. United States, (Pentagon Papers Case), 403 U.S. 713, 714, 91 S.Ct. 2140, 2141, 29 L.Ed.2d 822 (1971); Nebraska Press Association v. Stuart, 427 U.S. 539, 556-59, 96 S.Ct. 2791, 2801-02, 49 L.Ed.2d 683 (1976).

Such a regulation as concerns us here was attacked as a prior restraint in CBS, Inc., v. Lieberman, 439 F.Supp. 862 (E.D.Ill.1976). There CBS faced an unwritten policy of the Illinois Commerce Commission which prohibited the filming, photographing and tape recording of open meetings held by the commission. It was found that inasmuch as CBS had not been prevented from disseminating news or comment upon the proceedings before the commission, the regulation did not operate as a prior restraint upon publication by CBS.

We find that reasoning to be applicable here. Neither the School Board nor any other authority has sought to prevent publication of any message by Mr. Dean. He remains free to publish whatever he chooses concerning any matter entertained by the School Board, limited only by his own discretion and the laws of this State governing defamation. Accordingly, we hold that the questioned regulation does not operate as a prior restraint.

Alternatively, petitioner urges that the School Board’s regulation is an unconstitutional abridgement of the right to gather information, protected by the First Amendment. His premises for this conclusion are that the details of the School Board’s executive sessions are matters of public interest of which the public may assert a right to know and that, as a representative of the public and member of the School Board, it is his duty to convey these matters to the public as completely and accurately as possible; that the duty to convey information regarding these matters necessarily implies the right to gather the information by the most accurate means at his disposal, i.e., his tape recorder.

The premises of petitioner’s argument appeal to legitimate First Amendment concerns. Our form of democracy presupposes an informed vote, the product of a free flow of information and ideas. We recognize the primacy of the First Amendment among constitutional values and consider that it must derive from the special mission of the press and a freely speaking public to hold government accountable to the people. We do not argue with the petitioner’s contention that the right of access to information and the right to gather information have some constitutional dimension.

These rights were first recognized in Zemel v. Rusk, 381 U.S. 1, 85 S.Ct. 1271, 14 L.Ed.2d 179 (1965), where it was said that “The right to speak and publish does not carry with it the unrestrained right to gather information” — -thus implying the existence of some right, however limited. Later, the Court in Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972) remarked that “news gathering is not without its First Amendment protections”. But whatever vague dimension these cases give to the right to gather information must be considered in light of this: the common-law has never recognized the right of the public to attend meetings of governmental bodies. Cross, The Peoples’ Right to Know, ISO-182; Open Meeting Statutes: The Press Fights for the Right to Know, 75 Harv.L. Rev. 1199 (1962). The right is not expressly conferred by the terms of the Constitution itself, nor can there be found a single case which notices an implied constitutional right to attend, for example, sessions of a state legislature or of the United States Congress. Prior to the enactment by the various states of so-called Sunshine Laws, to the extent that public attendance at such meetings existed, it had been a function not of right, but of custom.

Indeed, only recently it announced for the first time that the First Amendment establishes the right of the public to attend a criminal trial. Richmond Newspapers Inc. v. Virginia, 448 U.S. 555, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980). But the exceptional nature of this right is derived from the tradition of the English common law which has emphasized the public character of a criminal trial since the days before the Norman Conquest.

The same cannot be said of other asserted rights of public access to information. In Gannett Co., Inc. v. De Pasquale, 443 U.S. 368, 99 S.Ct. 2898, 61 L.Ed.2d 608 (1979), where it was held that the press and public are afforded no right deriving from the Constitution to attend pre-trial hearings in a criminal case, Justice Rehnquist stated in a concurring opinion that “this Court emphatically has rejected the proposition ... that the First Amendment is some sort of constitutional sunshine law”, and that “there is no First Amendment right of access in the public or the press to judicial or other governmental proceedings”, citing Nixon v. Warner Communications, Inc., 435 U.S. 589, 609, 98 S.Ct. 1306, 1317, 55 L.Ed.2d 570 (1978); Saxbe v. Washington Post Co., 417 U.S. 843, 850, 94 S.Ct. 2811, 2815, 41 L.Ed.2d 514 (1974); Pell v. Procunier, 417 U.S. 817, 834, 94 S.Ct. 2800, 2810, 41 L.Ed.2d 495 (1974); Branzburg v. Hayes, 408 U.S. 665, 684-685, 92 S.Ct. 2646, 2658-2659, 33 L.Ed.2d 626 (1972); Zemel v. Rusk, 381 U.S. 1, 85 S.Ct. 1271, 1280-1281, 14 L.Ed.2d 179 (1965) and Houchins v. KQED, Inc., 438 U.S. 1, 9-15, 98 S.Ct. 2588, 2594-2597, 51 L.Ed.2d 553 (1978).

In Houchins, supra, the issue was whether the news media have a constitutional right of access to a county jail, over and above that of other persons, to interview inmates and make sound recordings and films, etc., for publication. It was held that such a right does not exist. Justice Stewart stated in a concurring opinion that “The First and Fourteenth Amendments do not guarantee the public a right of access to information generated or controlled by government ... The Constitution does no more than assure the public and the press equal access once government has opened its doors”. At 98 S.Ct. 2597. And the question whether government must open its doors at all is a nonjusticiable issue, best answered by resort to the legislative process where the coercive effect of public opinion can be brought to bear against those bodies which decide truly public issues behind closed doors. Id., at 2596.

The point of this discussion is that the States are altogether without constitutional impediment should they decide to close the doors of their legislative chambers and other governmental bodies.

It follows that if the States are free to prohibit public attendance at meetings of governmental bodies, they are free to prohibit the tape recording of those proceedings by those who are enabled to attend not by virtue of the Constitution, but by statute.

We see no reason to afford petitioner, as a member of the School Board, any special rights under the First Amendment over and above those which reside in the general public. To the extent that we have considered petitioner’s claimed right in terms of public access, we have done so because of his assertion that he seeks to act as a representative of the public in their right to know. The question of government’s duty to convey information to the public is but the other side of the coin, and finding there no constitutionally imposed duty, we must recognize the right of the School Board to employ reasonable means to restrict the flow of information between itself and the public. We therefore hold that the School Board’s regulation which prohibits the tape recordation of its executive sessions does not offend the First Amendment.

We reach this conclusion with due regard for the democratic principles which require government’s openness and responsibility to an informed electorate. In the aftermath of Richmond Newspapers, supra, the Supreme Court of the United States may yet discover in the First Amendment a right of the public to attend meetings of governmental bodies, if not on the basis of tradition, then perhaps for the reason that government’s accountability to the people depends so much upon the visibility of the decision-making process. See The Public Right to Know — The First Amendment as a Sword, 1980, Supreme Court Review, 1-25. But even if we ourselves were inclined to acknowledge that right, we would not choose the present case to announce it. Here, petitioner seeks to record not the public meetings of the School Board, but its executive sessions.

Louisiana’s Constitution, while creating the presumption that meetings of public bodies are open to the public, nevertheless allows the legislature to exempt from public deliberation specific topics whose matter requires the more private treatment afforded by executive sessions. La.R.S. 42:6 expressly limits discussion or deliberation in executive sessions to those matters defined in La.R.S. 42:61. Among these are discussions of the character, professional competence, or physical or mental health of a person; strategy sessions or negotiations with respect to collective bargaining; litigation, when an open meeting would have a detrimental effect on the bargaining or litigating position of the public body and investigative proceedings regarding allegations of misconduct. Also specifically exempted are discussions between a city or parish school board and individual students, or their parents, regarding the problems of such students.

Considering the nature of these topics, we are of the opinion that the balance of First Amendment rights against the legitimate needs of governmental privacy as to those enumerated matters must weight in favor of the latter. Governmental efficiency— and by that we mean not merely the volume of work product, but fruitful, fair and accurate decision-making — is enhanced by the uninhibited and vigorous flow of debate. Certain matters, such as those exempted and designated for closed hearing, do not lend themselves to such treatment by public officials unless the public is ex-eluded. In the end, there must be an acknowledgment that the public’s right to know is not absolute. Even Branzburg, which we cited earlier as one of the first cases to recognize the constitutional nature of the right to gather information, accepted as unquestionable the exclusion of the press from grand jury proceedings, judicial conferences, and the meetings of other official bodies gathered in executive session. 92 S.Ct. 2646, at 2658.

Having found that the United States Constitution affords petitioner no right to record executive sessions of the School Board, we now turn to Louisiana law.

As to the recording of the proceedings of public bodies, La.R.S. 42:8 provides that “All or any part of the proceedings in a public meeting may be recorded by any person in attendance by means of a tape recorder or any other means of reproduction.” (Emphasis ours)

There is no similar provision relating to the recordation of executive sessions. We interpret the legislature’s silence on this matter to mean that each public body should have the prerogative to allow or prohibit the use of tape recorders at closed meetings.

In light of that interpretation, we hold that the School Board’s prohibition is neither arbitrary nor unreasonable, and therefore must be upheld. Estay v. Lafourche Parish School Board, 230 So.2d 443 (La.App. 1st Cir. 1969).

Finally, throughout the course of our deliberations on this subject, we have borne in mind that Mr. Dean’s announced purpose is to employ tape recordings to verify misconduct on the part of the School Board in the event it should arise. But this anticipation of wrongdoing reveals an antagonism which we cannot share. We will not presume that the School Board will violate its public trust and the law of this state by closing its doors to discuss matters which by law are afforded public deliberation. To the contrary, it is to be presumed that public officials will perform their duties in good faith and in a manner loyal to the public interest.

In the event that violations do occur, Mr. Dean and the people of St. Bernard Parish will have the legal means to rectify it. La.R.S. 42:9 provides for the voidability of any action taken by the School Board in violation of the Sunshine Law provisions (La.R.S. 42:4.1 et seq.). La.R.S. 42:11 further allows enforcement of the law by writ of mandamus, injunctive relief and declaratory judgment, and any noncompliance with the orders of the court in these matters is, of course, punishable as contempt.

In any event, petitioner is free to discuss with anyone the matters brought into executive session, the only bounds being his own sense of propriety. Under these circumstances, we find no reason to regard the School Board’s regulation as arbitrary or unreasonable.

For the reasons assigned, the judgment of the trial court is affirmed.

AFFIRMED.

      . “No person shall be denied the right to observe the deliberations of public bodies . .. except in cases established by law.” La.Const. art. XII, § 3.


author: BYRNES, Judge.

text:
    BUNGE CORPORATION v. SECRETARY OF the DEPARTMENT OF REVENUE AND TAXATION.
    No. 12958.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 11, 1982.
    Howard M. Romaine, Baton Rouge, for petitioners-appellees.
    George F. Riess, Benjamin B. Blanchet, Monroe & Lemann, New Orleans, for plaintiff-appellant.
    Before KLEES, BYRNES and CIACCIO, JJ.
   BYRNES, Judge.

Bunge Corporation appeals from a decision of the District Court reversing a determination made by the Board of Tax Appeals, sustaining the peremptory exception of prescription filed by Bunge Corporation.

Bunge Corporation allegedly owed corporate income tax and a formal assessment of the taxes was made by the Secretary of the Louisiana Department of Revenue and Taxation on December 30, 1977, the day before prescription would have run. The formal notice of the assessment was not mailed until January 4, 1978, after the prescriptive period. Bunge Corporation avers that the act of mailing was controlling as to prescription but failed to cite any Louisiana cases to that effect.

We agree with the District Court’s opinion which held that R.S. 47:1564, 1565, and 1580 are applicable and that the date of assessment is controlling rather than the date of mailing the assessment.

In Louisiana Pacific Corporation v. Secretary of the Department of Revenue and Tax, 391 So.2d 35 (La. 3rd Cir. 1980), a case with facts that almost mirror the instant case, the Third Circuit held that prescription on State Income Tax was interrupted by formal assessment of said Tax by the state before the three year period had passed, even though notice was not mailed to the taxpayer until after the three year prescriptive period had accrued against the state.

In adopting the Third Circuit’s pronouncement in Louisiana Pacific, we affirm the trial court’s decision and remand this case to the Louisiana Board of Tax Appeals for further proceedings in order to determine the correctness of the assessment of the 1974 Income Tax made against Bunge Corporation.

All costs are assessed to the appellant.

AFFIRMED.