text:
    Gary Wayne TURBERVILLE v. GEORGIA PACIFIC CHEMICAL CO. et al.
    No. 13215.
    Court of Appeal of Louisiana, First Circuit.
    March 31, 1980.
    J. Rodney Ryan, Jr., Henry D. Salassi, Jr., Baton Rouge, for plaintiff-appellant, Gary Wayne Turberville.
    Edward W. Gray, Vincent P. Fornias, Baton Rouge, for defendants-appellees, Georgia Pacific Corp., et al.
    Before COVINGTON, LOTTINGER and COLE, JJ.
   COLE, Judge.

Plaintiff-appellant, Gary Wayne Turber-ville, appeals the dismissal on a summary judgment of Georgia Pacific Corporation (Georgia Pacific) and its insurer, Hartford Accident & Indemnity Company. The dismissal was based on a determination by the trial court that Georgia Pacific was, by virtue of La.R.S. 23:1061, plaintiff’s statutory employer, against which the exclusive remedy is workmen’s compensation. La. R.S. 23:1032. Plaintiff asserts the trial court erred in granting the motion for summary judgment contending there exists a genuine issue of material fact, thus posing this pivotal question to us.

Plaintiff brought suit in tort for the injuries he received while working at Georgia Pacific’s plant in Iberville Parish as an employee of Master Maintenance Engineering, Inc. (Master Maintenance). He was injured when he fell approximately fifteen feet while trying to move a scaffold board. Plaintiff was using the scaffold to paint some steam lines that ran along the inside wall of the cell renewal building.

There is no dispute over how the accident occurred. Also both sides agree routine maintenance is part of the regular business of the Georgia Pacific plant, which is a chemical manufacturing plant. What is debated is whether the painting which plaintiff was engaged in at the time of the accident was new construction or routine maintenance. This is clearly a factual question. We must determine whether the pleadings, affidavits and depositions on file create a genuine issue as to this material fact. If this question is answered in the affirmative, summary judgment is inappropriate in this instance. C.C.P. Art. 966. The trial court, stating there was no issue of fact, found plaintiff’s activity to be routine maintenance.

The fact question of whether plaintiff was engaged in routine maintenance or new construction at the time .of the accident is critical in determining if Georgia Pacific was plaintiff’s statutory employer. Our law requires the work involved be done in the trade, business or occupation of a principal before the principal acquires that status, becomes liable for workmen’s compensation, and thus immune from tort liability. La.R.S. 23:1061. Whether a particular activity constitutes a part of the trade, business or occupation of a principal must be decided on the particular facts of each case. Lushute v. Diesi, 354 So.2d 179 (La.1978). Our jurisprudence supports the rationale that construction of a new facility is not a part of the trade, business or occupation of a chemical manufacturing plant such as Georgia Pacific. Reeves v. Louisiana and Arkansas Railway Company, 282 So.2d 503 (La.1973); Boudreaux v. Boudreaux, 369 So.2d 1117 (La. App. 1st Cir. 1979). See also, Moak v. Link-Belt Company, 229 So.2d 395 (La.App. 4th Cir. 1969), involving a sugar refinery; and, Ball v. Kaiser Aluminum & Chemical Corporation, 112 So.2d 741 (La.App. Orl. Cir. 1959), involving the production of aluminum.

In support of its motion for summary judgment, Georgia Pacific filed the affidavit and deposition of H. A. Lloyd, industrial relations manager for Georgia Pacific, and the affidavit and deposition of Norman Deumite, the principal shareholder and general manager of Master Maintenance. From these documents we learn the following.

The cell renewal building in which plaintiff was injured was part of a recently constructed chlorine facility, which at the time of the accident had not yet gone on stream. Nichols Construction Company and Payne & Keller Construction Company had built the chlorine facility for Georgia Pacific. The cell renewal building was to be used for the cleaning and repairing of chlorine cells. This work was to be performed by Master Maintenance, which had contracted with Georgia Pacific to provide general maintenance and repair work. Since the new chlorine facility was not yet on stream, Master Maintenance had its employees cleaning the newly constructed cell renewal building and preparing it for work on the chlorine cells. Lloyd and Deumite both assert that the construction of the building had been completed, that Master Maintenance had no part in the construction, and that the painting of the steam lines was routine maintenance.

In opposition to the motion for summary judgment, plaintiff filed an affidavit in which he stated the steam line he was painting had never been painted and the painting was part of the completion of the cell renewal building, which was still in the process of construction.

Unlike the trial court, we find plaintiff’s affidavit does create a genuine issue of material fact as it contradicts the assertion of Georgia Pacific’s witnesses that the construction of the cell renewal building had been completed. With that fact in doubt, the undisputed evidence does not compel the conclusion that the painting plaintiff was engaged in was routine maintenance. At trial there can be further development of the relationship between painting and the completion of construction.

The trial court was in error to weigh the conflicting evidence and conclude construction had been completed. A summary judgment is not to be used as a substitute for a trial on the merits. The court should not seek to determine whether it is likely the mover will prevail on the merits but rather whether there is an issue of material fact. In ruling on the motion, all doubts as to the propriety of a summary judgment are to be resolved against the mover. The evidence should be liberally construed in favor of the party opposing the motion. Odom v. Hooper, 273 So.2d 510 (La.1973); Walker v. Graham, 343 So.2d 1171 (La.App. 3d Cir. 1977); Green v. Southern Bell Telephone & Telegraph Company, 204 So.2d 648 (La.App. 3d Cir. 1967).

Georgia Pacific argues in the alternative that even if plaintiff’s activity is labeled new construction, the summary judgment was properly granted because the construction of the cell renewal building was an essential part of its business. It cites Slocum v. Lamartiniere, 369 So.2d 201 (La. App. 3d Cir. 1979), and Hebert v. Gulf States Utilities Company, 369 So.2d 1104 (La.App. 1st Cir. 1979), in support. Those cases are factually inapposite. It must be noted in this case Georgia Pacific did not try to construct the cell renewal building, either partly or in its entirety. Thus, it did not become its own contractor for that purpose. Regardless, there is insufficient evidence before us on which to base a conclusion that construction of the building was an essential part of Georgia Pacific’s business.

For the foregoing reasons, the judgment of the trial court is reversed and the case is remanded for further proceedings. Costs will be assessed upon final disposition.

REVERSED AND REMANDED.


source: Caselaw Access Project

author: COLE, Judge.

license: Public Domain

text:
    William C. CONEY, M. D. v. STATE of Louisiana, etc.
    No. 13218.
    Court of Appeal of Louisiana, First Circuit.
    March 31, 1980.

      Henry M. Bernstein, Jimmie C. Peters, Jena, of counsel, for plaintiff-appellant William C. Coney, M. D.
    Kenneth C. DeJean, Asst. Atty. Gen., Baton Rouge, of counsel, for defendant-appel-lee State of Louisiana, through Department of Health and Human Resources and Division of Administration.
    Before COVINGTON, LOTTINGER and COLE, JJ.
   COLE, Judge.

Plaintiff appeals from the judgment of the district court denying his request for a preliminary injunction and dismissing his suit.

We quote with approval the following portions of the trial court’s written reasons for judgment:

“STATEMENT OF FACTS

“The State of Louisiana, on behalf of the Office of Family Security of the Department of Health and Human Resources, advertised for public bids on the lease of office space in Jonesville, Louisiana. The advertisement appeared on February 15, 1979. The advertisement specified that the space offered should contain a minimum of 3,400 square feet and a maximum of 3,600 square feet, and contained certain building specifications. It also provided: ‘The right is reserved to reject any and all bids and to waive any informalities.’ Interested bidders were directed to submit bids to the appropriate officer by March 9, 1979.

“Four bids were received in response to the advertisement. Two of these bids would ultimately become the subject of the current controversy. One bid was submitted by a Mrs. Ruth Matthews, who bid $2.00 per square foot on a 2,803-square-foot space. Another was the bid of the present plaintiff, who bid $8.45 per square foot on a building to be built, within the proper maximum and minimum square footage advertised. If Mrs. Matthews’ bid is not considered, Dr. Coney’s bid was the lowest of the remaining three bids.

“By letter dated March 23, 1979, the Division of Administration (after receiving the initial approval of the Office of Family Security, the prospective tenant) sent to plaintiff a proposed lease agreement and accompanying affidavit. That letter stated: ‘If the lease meets with your approval, please execute all copies of the lease and affidavit and return them to this office for further processing and distribution.’

“Plaintiff complied with that request, returning the documents on April 6, 1979. The Division of Administration forwarded this lease (now signed by Dr. Coney, the plaintiff) to the prospective tenant. It was returned on April 18,1979 with an authorized signature for that tenant. The Division of Administration proceeded to request budget approval that monies were available to lease the building. This approval was received on May 30, 1979. But the lease document was never signed by the appropriate official of the Division of Administration.

“On May 31, 1979, plaintiff received a telephone call from the Division of Administration and a subsequent confirming letter that all bids on the project were being rejected. Thereafter, the proposed lease agreement was re-advertised and re-bid. This time, Mrs. Matthews bid $8.00 per square foot on square footage within the proper maximum and minimum, and plaintiff re-bid $8.45 per square foot, as he had before.

“On the day before the second bid opening, plaintiff brought the present law suit, seeking to enjoin the State of Louisiana from entering into a contract of lease for the advertised space with anyone but plaintiff. A temporary restraining order was sought, but denied. A preliminary injunction was sought, and a rule issued to compel the defendant State of Louisiana to show cause why the preliminary injunction should not issue. That rule was tried on July 6, 1979; the evidence was transcribed; briefs were submitted; and the matter is before the Court for decision.

“Conclusions of Law

“There are no genuine disputes about the foregoing facts. But the conclusions of law to be drawn from those facts are of course in dispute. For the reasons that follow, the Court concludes that the State of Louisiana had the right to reject all bids under the circumstances. It follows from that conclusion that plaintiff is not entitled to the relief he seeks, and his petition for a preliminary injunction is dismissed at his cost.

“The Louisiana statutes applicable to the bidding procedure provide:

La.R.S. 39:195:
‘No state agency shall enter into a lease as lessee for the use of 2,500 square feet or more of space in a privately owned building except upon advertisement for such space in the same manner established by this Part for commodity purchases, the notification of space needs to all interested providers, the receipt of competitive bids and awards to the lowest bidder meeting specifications.’
(Added by Acts 1978, No. 676.)

The provisions for commodity purchases, to which the statute refers are:

La.R.S. 29:171.1(A) [39:171.1(A)]:
‘Whenever, in the opinion of the Commission of Administration, the best interests of the state will be best served by the purchase of any commodity or class of commodity in quantity and covered by a contract let for the purpose, the commissioner shall enter into a contract for such commodity or class of commodity. .
******
La.R.S. 39:181:
‘Contracts may be awarded for separate items, or portions or groups of items as the best interest of the state may require. If no satisfactory bid has been received in any case, the Division of Administration may reject all bids and forthwith may advertise for new bids.

These specific provisions with reference to lease of space of 2,500 square feet or more are very similar to the general provisions in La.R.S. 38:2212 and 38:2214 with reference to the letting of contracts for the purchase of materials or supplies, or the construction of public works. The latter statute contains the specific statement that ‘. The public entity may reject any and all bids.’

“In the present instance, both the advertisement and the notice to bidders contained the statement that ‘the right is reserved to reject any and all bids. . . . ’ That this statement was included is not contested by plaintiff.

“Able counsel for plaintiff urges upon the court either of two conclusions: (1) that a contract of lease was confected between plaintiff and the State; or (2) if it was not, the State’s rejection of all bids was arbitrary and illegal, and a contract of lease should now be entered into with the plaintiff.

“The Court cannot agree with the first argument. La.R.S. 39:171.1(A) and 39:193 vest only the Commissioner of Administration with authority to enter into a contract for the purchase of commodities (and by reference, for a lease such as this one, La.R.S. 39:195). The Commissioner of Administration did not sign the lease agreement, nor did anyone authorized by him do so. There is no evidence of an oral agreement on the part of the Commissioner, even if that would be permissible under the statutes. Plaintiff has simply failed to establish that there ever was a valid lease agreement.

“The second argument is more plausible, but still without merit. Plaintiff’s contention seems to have two aspects. The first is that the statutes themselves limit the power of the State to reject all bids by stating that ‘if no satisfactory bid has been received in any case,’ bids may be rejected. The second is that, even if the statutes do not impose such a restriction, the jurisprudence has done so by refusing to permit arbitrary rejection of all bids.

“As to the first, some examination of the history of the statutes is in order. The original predecessor provision of the present La.R.S. 39:181 (right to reject all bids) was Acts 1942, No. Ill, Title 9, § 7. Act 111 was a comprehensive fiscal code, establishing the Department of Finance and providing for central purchasing, among other things. The specific provision which ultimately became the present R.S. 39:181 read: ‘. . . If, in the judgment of the Purchasing Office no satisfactory bid has been received in any case, he may reject all bids. . . ’ Acts 1948, No. 133, Title 6, § 4, again a comprehensive measure, placed that judgment power in the individual budget units: ‘. . . If no satisfactory bid has been received in any case, the budget unit may reject all bids. . . . ’ When the judgment power was again placed in the Division of Administration, the phrase ‘budget unit’ was replaced with the phrase ‘Division of Administration.’ Unless this provision limits the power of the Division to reject all bids, it is not otherwise limited. The advertisement and bidding documents contain no limitations.

“Plaintiff argues that the above language prohibits a reservation of right to reject all bids without qualification. This puts a strained interpretation upon the statute. The judgment that a bid is satisfactory must be made by someone. If there is no judgment to be made, and if only a mechanical application of other statutory provisions is necessary to determine whether a bid is satisfactory, then the language is superfluous. Language in a statute should be interpreted, if at all possible, so as to give it meaning rather than make it superfluous. Moreover, the argument that the Commissioner of Administration is without discretion of some type to reach a decision on the satisfactory nature of a bid is inconsistent with the responsibility placed upon him in La.R.S. 39:171.1(A) that he act ‘in the best interests of the state.’ The purpose of public bidding statutes is to obtain the best possible product at the least expense to the public, under all the circumstances prevailing. The protection of the public fisc which is entrusted to the Commissioner of Administration is an important responsibility, and the Court is reluctant to interpret a single phrase in the statute so as to limit his discretion in carrying out that responsibility.

“But, regardless of the interpretation placed on the phrase, the Court does not agree with plaintiff that it forbids the Commissioner from stating in the bidding documents that he reserves the right to reject all bids. He could, and apparently did, state the terms under which the bid was to be made. La.Civ.Code Art. 1764. Plaintiff concedes that he understood those terms, and made his bid in accordance with them. The statute would no doubt authorize the Commissioner to reject bids even if he did not place such a statement in the bidding documents. But the statute does not go so far as to prohibit the exercise of his discretion in rejecting all bids as unsatisfactory.

“The importance of the protection of the public fisc, made clear by a reading of the entire statute dealing with public bidding, compels the court to conclude that the Commissioner has the power to determine which, if any, of the bids are satisfactory and to reject all of them if he determines that all are unsatisfactory under the prevailing circumstances. This discretionary power is limited only by the jurisprudential requirement that he reach this conclusion in a non-arbitrary manner, for valid reasons.

“To that limited extent, the Court agrees with plaintiff that the jurisprudence has limited the Commissioner’s discretionary power. But there has been no showing of arbitrariness in the present case. In support of his argument of arbitrariness, plaintiff cites Disposal Systems, Inc. v. Calcasieu Parish School Board, 243 So.2d 915 (La.App. 3d Cir. 1971) and Gurtler, Hebert & Co. v. Orleans Parish School Board, 251 So.2d 51 (La.App. 4th Cir. 1971). Neither appears apposite to the present case. The first case involved an actual award of a contract to a bidder by vote of the school board, subject only to the condition that the local district attorney render a legal opinion as to a possible conflict with other contracts. That condition was subsequently fulfilled. The ‘award’ of the contract in the present case can be completed only by approval of the Commissioner of Administration or his des-ignee, and that approval has never been given. Plaintiff errs in asserting that ‘the contractual relationship is complete.’

“The second case, Gurtier, requires more extended comment. The Orleans Parish School Board had advertised for bids for the installation of incinerators at various schools. When the bids were opened, plaintiff Gurtier was determined to be the low bidder. But at its subsequent meeting, the school board followed the recommendation of its consulting engineer on the project and rejected that bid as not the lowest responsible bid and awarded the contract to the second lowest bidder. This award was by a 3-1 vote of the school board. When that award was made, the disappointed bidder brought suit against the school board seeking a preliminary injunction to enjoin the school board from entering into a contract with the second lowest bidder, and to mandate that the school board enter into a contract with the disappointed bidder. Ultimately, the trial court granted such an injunction, on the basis that the school board acted in an arbitrary manner. That finding was never appealed, and became final and conclusive.

“Thereafter, the school board decided to reject all bids that had been submitted and re-advertise the project. When the disappointed bidder complained of that course of action, the school board instituted a summary proceeding to determine whether its rejection of bids and re-advertisement would constitute a violation of the preliminary injunction, which of course was still in effect. The trial court determined that rejection would violate the injunction and the school board appealed. That appeal is the Gurtler case on which plaintiff relies in the present litigation.

“The Gurtler case has been described at some length to demonstrate that it is a decision in which the court of appeal was called upon to determine whether a public body which had arbitrarily (as a conclusive matter of law upon that appeal) rejected the lowest bid and accepted another and was then enjoined, could reject all bids without violating the injunction. This makes the Gurtler case entirely distinguishable from the present litigation. In the first place, the State of Louisiana was under no injunction when it rejected all bids. In the second place, no contract has been entered into with another bidder. And finally, the State has not been conclusively determined to be arbitrary in rejecting all bids.

“The court in Gurtler conceded that authority for its holding was scarce, but cited a paragraph from McQuillin on Municipal Corporations, Vol. 10, Sec. 29177, pp. 438-439 (erroneously spelled as McQuillian by the court). This paragraph concerned limitations on the right to reject bids, stating that courts had recognized such limitations when the public officers act arbitrarily or capriciously. On the record before the appellate court, it had no choice but to use such authority, since the finding of arbitrariness was final and binding. But the preceding material in McQuillin in the same section is quite illustrative and more applicable to the present situation, in which arbitrariness is not established.

‘If the authorities are so empowered, they may reject all bids. In such case the lowest bidder does not obtain a vested or property interest in the contract merely by reason of the fact that he submitted the lowest bid. The awarding agency may thereupon proceed anew with the letting of the contract. If the grant of power to the municipal officers authorizes the rejection of any bid, the contract need not be let to the lowest bidder, and the fact that it is not so let does not indicate fraud. Where discretion is conferred to reject ‘any and all bids,’ the courts will not interfere with the discretion unless exercised with a fraudulent intent, to the injury of the party complaining, and where the injury is to a vested right.’

“Plaintiff’s able counsel is wise to attempt to align the present litigation with the Gurtler opinion. It appears to be the only deviation in the jurisprudence from the general proposition that a public entity has the right to reject any and all bids. Southern Tours v. New Orleans Aviation Board, 357 So.2d 102 (La.App. 4th Cir. 1978); D. J. Talley & Son, Inc. v. City of New Orleans, 303 So.2d 195 (La.App. 4th Cir. 1975); Pyro Incinerator & Sup. Corp. v. Gervais F. Favrot Co., 210 So.2d 356 (La.App. 4th Cir. 1968); Bartley, Inc. v. Town of Westlake, 237 La. 413, 111 So.2d 328 (1959). That the Gurtler decision is a deviation appears from the fact that it has never subsequently been cited with approval, and in fact has been cited once by the same court that decided it for its ‘dictum’ that the right of the public board to reject all bids must be acknowledged. Foti v. Orleans Parish School Board, 358 So.2d 353 (La.App. 4th Cir. 1978).

******

“Arbitrariness Vel Non

“As noted earlier, the only limitation even arguably applicable to the power to reject all bids is that enunciated by the court of appeal in Gurtler, and it clearly depends upon establishment of arbitrary rejection of one bid and acceptance of another. The Court finds nothing in the evidence that establishes arbitrariness in the decision to reject all bids.

“What the record does reveal is an apparent discrepancy of considerable proportion among the bidders. One bidder (Mrs. Matthews) made an attractive bid so far as the per-square-foot price was concerned ($2.00, including utilities), but under-bid the minimum square footage by a considerable margin (offering only some 2,800 square feet when the advertisement specified 3,400 square feet minimum). Another bidder (plaintiff) was within the proper square footage, but at a price of $8.45 per square foot. The evidence does not reflect the other two bids, but does reflect that plaintiff’s would have been the lowest among them. Accordingly, one may conclude that the three bids other than Mrs. Matthews’ were in the range of $8.45 per square foot and higher.

“In the face of this wide discrepancy in the bids, and in the light of the fact that Mrs. Matthews’ bid was for an existing building ready for occupancy, the Court cannot conclude that the Division of Administration was arbitrary and unreasonable in ascertaining whether some middle ground was available between the two extremes upon first bidding. The Commissioner of Administration and his designees are required to act in the best interests of the state, by statute, and it is presumed that they have done their duty in a proper manner. La.R.S. 15:432. Plaintiff has not overcome this presumption.

“Defendant asserts in its brief (but the record does not reflect) that the previous lease to the agency in question was from Mrs. Matthews, for the same building, at $1.71 per square foot. If this is the case, and if Mrs. Matthews’ original bid had to be rejected as not within the minimum space requirements, the Division of Administration was left with three bids, all of which were approximately five times the rental on the contract just coming to an end. Rejection of such bids in an effort to achieve the lowest possible price for the public fisc does not appear to be arbitrary or unreasonable. And if it were, plaintiff had ample opportunity to establish a record which would demonstrate that, but failed to do so.

“Moreover, on the day after the Division of Administration received notice that the funds would be available to lease at $8.45 per square foot [if] it approved the lease contract, it received a letter from the tenant agency asking that the project be re-bid ‘. . .in hopes of retaining [sic] a lower responsible bid.’ Why this request was made by the tenant agency, the evidence does not reveal. But regardless of the reason, the Division of Administration’s response does not seem arbitrary. It had not yet approved the lease contract. The prospective lessee requested a re-bid in an effort to save money. The first acceptable bids may have been five times the previous lease amount. Under those circumstances, there is no proof of arbitrariness.

“The Court is compelled to conclude that plaintiff has not established arbitrariness on the part of the Division of Administration.”

For the reasons given by the trial court, we affirm the judgment appealed. Costs of this appeal are to be paid by plaintiff-appellant.

AFFIRMED.

      . We note La.R.S. 39:193 deals specifically with the lease or rental of space for the housing of state agencies, not with commodities, and does, in fact, provide that such leases “shall be made and entered into only with the approval of the commissioner of administration.”


author: PER CURIAM.

text:
    NATIONAL FOOD STORES OF LOUISIANA, INC. v. Leroy J. CHUSTZ.
    No. 12889.
    Court of Appeal of Louisiana, First Circuit.
    March 31, 1980.

      Stephen C. Riedlinger, Baton Rouge, for plaintiff-appellant.
    C. Jerome D’Aquila, New Roads, for defendant-appellee.
    Before EDWARDS, LEAR and SAR-TAIN, JJ.
   PER CURIAM.

We granted a rehearing in this cause to reconsider the correctness of our original decision. For reasons hereinafter stated we set aside our original opinion, reverse and remand.

For convenience purposes, we briefly state the pertinent facts. For sometime prior to March 25, 1971, Leroy J. Chustz (Chustz) was employed by National Food Stores of Louisiana, Inc. (National) as the manager of its New Roads Store No. 10. On that date an audit of the store revealed a cash shortage of $24,960.21. Chustz was then charged with and plead guilty to theft. He received a suspended sentence conditioned in part on his payment of $6,000.00 in restitution. He repaid this latter sum in monthly payments of $100.00 from December 30, 1971 until December 30, 1976.

Particularly pertinent to this litigation is an additional payment by Chustz to National of $200.00 on September 23, 1977.

The present suit for the balance allegedly due was filed by National on August 4, 1978.

In our original opinion, we concluded that the cause of action herein asserted was one in tort, not contract or quasi-contract and that the applicable prescriptive period was one year rather than ten years. In attaching no legal consequences to the payments made under the criminal order of restitution, we stated that such payments were made “on a different debt and did not interrupt prescription on appellant’s cause of action to recover the balance of the amount allegedly stolen.” In so holding, we now conclude that we erred.

In considering the legal relationship between payments made under court ordered restitution and the principal obligation, we find persuasive the reasoning setforth in Travelers Insurance Company v. Chalona, 293 So .2d 498, 499, 450 (La.App. 4th Cir. 1974), Writ Refused June 21, 1974, where the court stated:

“The judge of the Criminal District Court ordered the restitution pursuant to Article 895(6)1 of the Louisiana Code of Criminal Procedure, which provided that a judge may impose conditions on probation resulting from the suspension of the execution of a criminal sentence, and one of these conditions was reparation or restitution. The pertinent part of the codal article reads: [Footnote omitted]
“‘(6) Make reasonable reparation or restitution to the aggrieved party for damage or loss caused by his offense in an amount to be determined by the court;’ 3 La.Code Crim.Proc. Art. 895(6).
The wording of the statutory authority upon which restitution was ordered is clear in its import that the payment is not in the nature of a fine but rather in the nature of a damage payment as would be recoverable under Article 2315 of the Civil Code. The use of the words ‘reparation’ and ‘restitution’ clearly implies that conclusion and the first paragraph of Article 2315 reinforces this interpretation. It provides:
“ ‘Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.’ LSA-C.C. Art. 2315.
“Because a payment made under Article 895(6) of the Code of Criminal Procedure results in the repair of damage caused by the offender, it would have the same civil effect upon the criminal defendants as a payment pursuant to a settlement or judgment in a civil matter. It is important to note that a payment made pursuant to Code of Criminal Procedure Article 895 is a condition of the suspension of the criminal sentence and is not a substitute for the sentence. The sentence here was still imposed (although not executed), and one of the conditions of suspension was restitution of the damage caused by the fault of the criminal defendants.”

It could hardly be argued were not the issue of prescription present that Chustz could not claim as a credit the $6,000.00 he previously paid to National albeit under the terms of the criminal order.

We, therefore, hold that timely payments as restitution under the terms of a criminally imposed condition to a suspended sentence have the effect of interrupting prescription in a civil claim for damages.

In addressing the issue of prescription, we note that one year had not lapsed between the $100.00 payments from December 30, 1971 to December 30, 1976, the $200.00 payment on September 23, 1977, and the filing of this suit on August 4,1978. C.C. Art. 3536.

For these reasons our original decision here is set-aside and judgment is rendered herein reversing the judgment of the district court and overruling defendant’s, Chustz’s, plea of prescription, and this cause is remanded to the district court for further proceedings consistent with the views herein expressed.

The Costs of this appeal are assessed against the defendant, Chustz, with the assessment of all other costs to await a final determination on the merits.

REVERSED, RENDERED and REMANDED.


author: CHIASSON, Judge.

text:
    Joel MESSER v. DEPARTMENT OF CORRECTIONS, LOUISIANA STATE PENITENTIARY.
    No. 13192.
    Court of Appeal of Louisiana, First Circuit.
    April 14, 1980.

      Phillip T. Hager, New Orleans, for plaintiff-appellant, Joel Messer.
    William J. Guste, Jr., Atty. Gen., and Thomas S. Halligan, Asst. Atty. Gen., Baton Rouge, for defendant-appellee, Department of Corrections, Louisiana State Penitentiary-
    Before ELLIS, CHIASSON and PONDER, JJ.
   CHIASSON, Judge.

Appellant, Joel Messer, seeks review of the trial court’s denial of a writ of mandamus and subsequent judgment regarding payment due appellant for wrongful discharge from his employment.

In August of 1978 appellant filed for a writ of mandamus to compel compliance with the decree in the decision of Messer v. Department of Corrections, Louisiana State Penitentiary, 358 So.2d 975 (La.App. 1st Cir. 1978), wherein this court found that Messer had been unlawfully discharged from his employment and ordered that he be “. . . reinstated in his position as Corrections Food Manager III as of August 4, 1975, with full pay and emoluments of his position.” (Emphasis added).

Appellee, the State of Louisiana through the Department of Corrections, answered appellant’s petition asserting that mandamus was inappropriate since the amount due to Messer was unresolved due to the uncertain definition of “emoluments” of appellant’s position. Appellee further reconvened seeking a declaratory judgment establishing the amount due.

Mandamus was denied and a hearing was held for the purpose of determining the sum due. In written reasons, the trial court found that gross pay owed was $46,735.28 and that the State was entitled to a $35,-903.00 setoff, pursuant to LSA-R.S. 49:113, representing wages which appellant earned in the interim. The trial court also found that Messer was entitled to $6,800.00 for the value of rent-free housing (as an “emolument” of his employment) minus $1,020.00 representing maintenance payments that would have been made to the State. Accrued annual and sick leave were disallowed.

Under the circumstances of this case, we find that mandamus is not a proper remedy. To enforce the prior decree of this court it became necessary to define the meaning of “emoluments” of appellant’s position. Therefore, a purely ministerial duty, without an exercise of discretion, could not be performed. Since mandamus will not lie in matters in which discretion and evaluation of evidence must be exercised the denial of the writ was proper. Hood v. Democratic Executive Committee, 234 So.2d 429 (La.App. 1st Cir. 1970).

Next, appellant argues that the Department of Corrections waived its right to avail itself of the setoff provisions of LSA-R.S. 49:113. We disagree. The question of setoff was not previously adjudged in our former decision. Therefore, the right to the setoff cannot be considered waived or abandoned. When reinstatement was ordered the State was then at liberty to urge the claim of setoff. To disallow the application of the setoff provision would result in obvious inequities. See Boucher v. Doyal, 210 So.2d 75 (La.App. 1st Cir. 1968).

Appellant further argues that LSA-R.S. 49:113 is discriminatory and unconstitutional in that a discharged employee may receive full back pay if reinstated by the commission, but be denied full back pay if reinstated by appellate courts. It has been held that the commission may apply the setoff provision; therefore, there is no merit to this assertion. LeBlanc v. New Orleans Police Department, 231 So.2d 568 (La. App. 4th Cir. 1970).

Appellant also objects to the trial court’s ruling that there was insufficient proof to support an award for utilities as an emolument of his position. Though the hearing was for the specific purpose of determining the amount due, appellant nevertheless failed to introduce any evidence upon which a reasonable amount of the value of utilities could be based. Expert opinion as to the costs of utilities during the time frame involved, considering the size, insulation and circuitry of that particular house was not elicited. Although the trial judge has discretion to determine damages in the absence of exact mathematical proof, an absence of a minimal degree of detail or specificity as to the extent of loss precludes an award. Casadaban v. Bell Chemical & Supply Co., Inc., 322 So.2d 854 (La.App. 1st Cir. 1975). Appellant fell short of his burden and therefore it was not erroneous for the trial judge to deny an amount for utilities.

Next, appellant contends that the trial judge erred in failing to reinstate his retirement system as an emolument of his former position. We find that Mr. Messer’s retirement system fund is an emolument of his former position within the context of our former decree. Therefore, Mr. Messer’s entitlement to his retirement pension fund has been previously adjudicated in his favor. At the proceeding below it was only necessary that appellant prove what contribution was due from the State during the period in which he was not employed by the Department of Corrections due to his illegal discharge. This proof was accomplished by the stipulation that the State would have contributed $3,595.66 during this period.

However, complete adjudication of this issue is not possible since the retirement system’s Board of Trustees was not a party to the proceeding. Therefore, it is ordered that the Department of Corrections be required to pay the Board $3,595.66 if the Board ultimately determines that appellant has fulfilled the requirements for regaining membership to the system.

Appellant further contends that he is entitled to have accrued annual and sick leave credited toward his retirement pension.

LSA-R.S. 42:563 in part provides:

“§ 563. Conversion of annual and sick leave to retirement credit
A. All accumulated annual leave for which payment cannot be made in accordance with law and all unused sick leave accumulated at the time of retirement shall be credited to the member on the following basis:
* * sjt * * *
There shall be no limit to the amount of unused sick and annual leave that a member may convert to retirement credit on the basis of the above formula.” (Emphasis added).

This statute clearly contemplates that the retirement pension be credited by an amount representing accumulated annual and sick leave only upon retirement. Mr. Messer did not retire from his position; therefore, he was not entitled to this credit and the trial judge was correct in his determination.

Finally, appellant contends that he is entitled to correction of a clerical error in the amount of $1,000.00 made in the judgment of the trial court.

In written reasons, the trial judge stated that appellant was entitled to $6,800.00 for the value of housing, minus $1,020.00 for maintenance payments made by appellant. However, in its concluding paragraph, the trial judge stated that “. . plaintiff is entitled to judgment as follows: $10,-832.28, less appropriate withholding, plus $4,780.00 ($6,800.00 minus $1,020.00) . . .” $6,800.00 minus $1,020.00 equals $5,780.00, not $4,780.00. Therefore the judgment should be amended to reflect the correct result.

The judgment appealed from is therefore amended to read as follows:

“IT IS ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of the plaintiff, Joel Messer, and against the defendant, Department of Corrections, Louisiana State Penitentiary, in the amount of Ten Thousand Eight Hundred Thirty-Two and 28/100 ($10,832.28) Dollars, less appropriate withholdings for Federal Income Tax; plus Five Thousand Seven Hundred Eighty ($5,780.00) Dollars and Two Hundred Forty and no/100 ($240.00) Dollars. The defendant is to pay all costs of this litigation.”

As amended, the judgment is affirmed at defendant’s cost.

AMENDED AND AFFIRMED.


author: LEAR, Judge.

text:
    Josie M. LOPEZ v. Hanson Joseph LOPEZ, Jr.
    No. 13221.
    Court of Appeal of Louisiana, First Circuit.
    May 5, 1980.

      Jack T. Marionneaux, Marionneaux & Marionneaux, Plaquemine, for plaintiff-appellant.
    C. Jerome D’Aquila, New Roads, for defendant-appellee.
    Before EDWARDS, LEAR and WATKINS, JJ.
   LEAR, Judge.

Plaintiff-appellant instituted this action against her former husband, alleging that he had defaulted on certain promissory notes. Defendant-appellee answered the petition pleading payment. After trial on the merits, the trial court dismissed plaintiff’s suit. We affirm.

The salient facts are these:

Josie M. Lopez, plaintiff-appellant, and Hanson Joseph Lopez, Jr., defendant-appel-lee, were legally separated in October, 1972. In 1973, they were reconciled, but no notarial act was passed between the parties to reestablish the community. During 1975 and 1976, Mr. and Mrs. Lopez filed joint federal income tax returns. In August, 1976, Mrs. Lopez filed suit for legal separation and obtained a judgment thereon on August 3, 1977. Simultaneous with the legal separation, appellant and appellee executed a community property settlement of even date, which included the execution by Mr. Lopez of certain promissory notes in favor of Mrs. Lopez. One of these notes was in the amount of $100,000.00, payable in ten (10) annual installments of $10,000.00 each, plus interest at the rate of six (6%) percent per annum. The note stipulated that the first payment of $10,000.00 would be made on August 3,1978. The other note was a collateral mortgage note dated August 3, 1977, in the amount of $148,000.00, payable on demand at a rate of six (6%) percent per annum.

Mr. and Mrs. Lopez were divorced per judgment on June 20, 1978. In the meantime, the Internal Revenue Service (IRS) notified both that they owed a considerable tax liability. The IRS then began to levy on their respective sources of income. On August 2, 1978, Mr. Lopez was served with a notice of levy on wages, salary and other income of “Josie Marie Marino Lopez.” The tax levy reflected a total amount for the two years of $6,703.49. At the time, Mr. Lopez, under the conditions of the aforesaid promissory note, was apparently poised to make his first installment payment to Mrs. Lopez, his former wife, in the sum of $15,973.53.

On August 2, 1978, Hanson Lopez, defendant-appellee, purchased Cashier’s Check No. 12925, in the amount of $6,703.49, made payable to the Internal Revenue Service. On the same day, Lopez paid the sum of $9,280.07 to the Plaquemine Bank & Trust Company for the benefit of Josie M. Lopez, which represented the difference due after deducting the amount paid to the IRS.

Appellant filed suit on August 11, 1978, alleging that Hanson Lopez had defaulted and seeking to enforce the terms of the notes. Appellee answered pleading payment, inter alia. The case was tried and plaintiff’s suit dismissed.

The issue before us is whether or not the payment of a tax levy under the circumstances here described constitutes timely payment of appellee’s obligation under the note. We hold that it does and affirm the ruling of the trial court.

26 U.S.C. § 6332 provides in pertinent part:

“§ 6332. Surrender of property subject to levy
“(a) Requirement. — Except as otherwise provided in subsection (b), any person in possession of (or obligated with respect to) property or rights to property subject to levy upon which a levy has been made shall, upon demand of the Secretary or his delegate, surrender such property or rights (or discharge such obligation) to the Secretary or his delegate, except such part of the property or rights as is, at the time of such demand, subject to an attachment or execution under any judicial process.
* * * * * *
“(d) Effect of honoring levy. — Any person in possession of (or obligated with respect to) property or rights to property subject to levy upon which a levy has been made who, upon demand by the Secretary or his delegate, surrenders such property or rights to property (or discharges such obligation) to the Secretary or his delegate (or who pays a liability under subsection (c)(1)) shall be discharged from any obligation or liability to the delinquent taxpayer with respect to such property or rights to property arising from such surrender or payment. In the case of a levy which is satisfied pursuant to subsection (b), such organization shall also be discharged from any obligation or liability to any beneficiary arising from such surrender or payment.”

The record reflects that Hanson J. Lopez, Jr. was truly indebted unto plaintiff and bound to make annual payments in the amount of $10,000.00 plus 6% interest to Josie M. Lopez; that immediately prior to the due date of the first payment, appellee received notice of tax levy in favor of the U.S. Internal Revenue Service and against Mrs. Lopez. Mr. Lopez, in compliance with the above statute, paid the amount of levy and forwarded the balance to Mrs. Lopez’s bank.

Mrs. Lopez, appellant, filed suit on August 11, 1978, alleging that Hanson J. Lopez, Jr., appellee, had defaulted and seeking to enforce the terms of the notes.

At the trial of the case, the defendant-ap-pellee’s principal defense was payment. Mrs. Lopez, however, adduced testimony tending to establish that the Plaquemine Bank & Trust Company had a “security interest” in the said notes and all payments made by Hanson Lopez to satisfy the said indebtedness; that this “security interest” activates the provisions of 26 U.S.C. § 6323 in favor of the bank, thereby exempting all monies held for her by Hanson Lopez.

Such evidence and argument are totally irrelevant under the facts of this case. The bank is not a party to this suit and neither appellant nor appellee may urge whatever interest the bank may have in avoidance of payment of the tax levy. Appellant cites United States v. Harris, 249 F.Supp. 221 (1966) as authority for her contention that Mr. Lopez was not bound to pay the tax levy. In Harris, the government levied against Harris’ property, which was on deposit in Pioneer Bank, a co-defendant in those proceedings. Prior to the levy, however, Harris and his wife had executed certain set-off agreements arising out of a prior indebtedness of the taxpayers to the bank. The bank, after receiving notice of the levy, simply sought to enforce its rights by charging the taxpayers’ accounts and applying the total sums to their debt. The bank, thereafter, refused to pay the tax liability of the taxpayers, and the government instituted foreclosure proceedings under 26 U.S.C. § 6321 against Harris and Pioneer Bank.

Harris is clearly inapplicable. The provisions of 26 U.S.C. § 6332 are clear and unambiguous. Appellee had no choice but to pay or suffer adverse consequences under 26 U.S.C. § 6332(c)(2).

For these reasons, judgment is rendered in favor of appellee, Hanson Joseph Lopez, Jr., and against appellant, Josie M. Lopez, affirming the decision of the lower court, appellant to pay all costs of these proceedings.

AFFIRMED.

      . “§ 6323. Validity and priority against certain persons
      “(a) Purchases, holders of security interests, mechanic’s lienors, and judgment lien creditors. — The lien imposed by section 6321 shall not be valid as against any purchaser, holder of a security interest, mechanic’s lien- or, or judgment lien creditor until notice thereof which meets the requirements of subsection (f) has been filed by the Secretary or his delegate.
      * * * * * *
      “(h) Definitions. — For purposes of this section and section 6324—
      “(1) Security interest. — The term ‘security interest’ means any interest in property acquired by contract for the purpose of securing payment or performance of an obligation or indemnifying against loss or liability. A security interest exists at any time (A) if, at such time, the property is in existence and the interest has become protected under local law against a subsequent judgment lien arising out of an unsecured obligation, and (B) to the extent that, at such time, the holder has parted with money or money’s worth.”

      . “§ 6321. Lien for taxes
      “If any person liable to pay any tax neglects or refuses to pay the same after demand, the amount (including any interest, additional amount, addition to tax, or assessable penalty, 'together with any costs that may accrue in addition thereto) shall be a lien in favor of the United States upon all property and rights to property, whether real or personal, belonging to such person. Aug. 16, 1954, c. 736, 68A Stat. 779.”

      . “(2) Penalty for violation. — In addition to the personal liability imposed by paragraph (1), if any person required to surrender property or rights to property fails or refuses to surrender such property or rights to property without reasonable cause, such person shall be liable for a penalty equal to 50 percent of the amount recoverable under paragraph (1). No part of such penalty shall be credited against the tax liability for the collection of which such levy was made.”


text:
    STATE of Louisiana In the Interest of Michael Jerome BROWN.
    No. 13327.
    Court of Appeal of Louisiana, First Circuit.
    May 5, 1980.

      M. Michele Fournet, Kathleen Stewart Richey, Baton Rouge, for Michael Jerome Brown appellant.
    Edselle Cunningham, Asst. Dist. Atty., Baton Rouge, for State of La. appellee.
    Before EDWARDS, LEAR and WATKINS, JJ.
   LEAR, Judge.

The accused, Michael Jerome Brown (Michael), age 15, pled guilty to violation of L.R.S. 14:64 (armed robbery) of an employee of a convenience store in East Baton Rouge Parish, Louisiana. Michael stood guard at the door while his co-defendant, who was armed with a .22 caliber pistol, robbed the victim of $40.00.

The trial judge appointed an attorney from the Office of the Public Defender to represent the juvenile. Subsequently, when the matter came up for hearing, Michael, in the presence of his parents and his attorney, withdrew his plea of not guilty and pled guilty to the offense. The trial judge examined Michael very thoroughly on the facts, explained his constitutional rights and informed him as to the possible consequences of pleading guilty. Thereafter, the court accepted the plea and ordered a pre-sentence investigation. On October 26, 1979 the court ordered Michael committed to the custody of the Department of Corrections for the maximum period, not to exceed his twenty-first birthday.

Defendant appeals, contending that the trial judge erred in that he did not comply with La.Code of Criminal Procedure article 894.1, which article sets forth sentencing guidelines for defendants in criminal cases.

“Art. 894.1 Sentence guidelines; generally
“A. When a defendant has been convicted of a felony or misdemeanor, the court should impose a sentence of imprisonment if:
“(1) There is an undue risk that during the period of a suspended sentence or probation the defendant will commit another crime;
“(2) The defendant is in need of correctional treatment or a custodial environment that can be provided most effectively by his commitment to an institution; or
“(3) A lesser sentence will deprecate the seriousness of the defendant’s crime.
“B. The following grounds, while not controlling the discretion of the court, shall be accorded weight in its determination of suspension of sentence or probation:
“(1) The defendant’s criminal conduct neither caused nor threatened serious harm;
“(2) The defendant did not contemplate that his criminal conduct would cause or threaten serious harm;
“(3) The defendant acted under strong provocation;
“(4) There was substantial grounds tending to excuse or justify the defendant’s criminal conduct, though failing to establish a defense;
“(5) The victim of the defendant’s criminal conduct induced or facilitated its commission;
“(6) The defendant has compensated or will compensate the victim of his criminal conduct for the damage or injury that he sustained;
“(7) The defendant has no history of prior delinquency or criminal activity or has led a law-abiding life for a substantial period of time before the commission of the instant crime;
“(8) The defendant’s criminal conduct was the result of circumstances unlikely to recur;
“(9) The character and attitudes of the defendant indicate that he is unlikely to commit another crime;
“(10) The defendant is particularly likely to respond affirmatively to probationary treatment, and
“(11) The imprisonment of the defendant would entail excessive hardship to himself or his dependents.
“C. The Court shall state for the record the considerations taken into account and the factual basis therefor in imposing sentence. (Added by Acts 1977, No. 635.)”

The trial judge, at the disposition (sentencing) hearing, permitted all parties to express their views prior to pronouncing sentence and went to great lengths to explain his reasoning in arriving at his decision.

The record reflects that although there existed some conflict as to Michael’s prior behavior pattern, the court gave him the benefit of the doubt, stating, however, that due to the seriousness of the offense involving the use of a dangerous weapon and a threat to human life, Michael should be incarcerated.

L.S.A.-C.J.P. art. 86 provides general guidelines for disposition in juvenile cases and states in part:

“Art. 86. Disposition; generally
“A. The court should impose the least restrictive disposition which the court finds is consistent with the circumstances of the case, the needs of the child, and the best interest of society. The court shall not remove a child from the custody of his parents unless his welfare or the safety and protection of the public cannot, in the opinion of the court, be adequately safeguarded without such removal.”

Defendant contends that the language of L.S.A.-C.J.P. art. 86 offers no concrete guidance for the sentencing judge and that, therefore, L.S.A-C.Cr.P. art. 894.1 should be followed. Defendant cites State in Interest of Causey, 363 So.2d 472 (La.1978) and State v. Sepulvado, 367 So.2d 762 (La.1979). In Causey, which involved the right of a juvenile to plead not guilty by reason of insanity, the court held that the right not to be tried while mentally incompetent is a fundamental due process right. With this we agree. However, not all rights guaranteed to an adult in a criminal proceeding are applicable to a juvenile. The applicable due process standard in juvenile adjudication is fundamental fairness. McKeiver v. Pennsylvania, 403 U.S. 528, 91 S.Ct. 1976, 29 L.Ed.2d 647 (1970).

Sepulvado involved an adult sentenced for carnal knowledge of a juvenile. The sentence was vacated on the ground that the judge had failed to comply with the guidelines set forth in L.S.A.-C.Cr.P. 894.1. State v. Sepulvado, 359 So.2d 137 (La.1978). Upon remand, the trial judge imposed the same sentence and defendant again appealed, asking for review of the sentence for excessiveness, in accordance with Article 1, Section 20 of the Louisiana Constitution of 1974. The Louisiana Constitution of 1921 prohibited “cruel and unusual punishment”, Article 1, Section 12. The Louisiana Constitution of 1974 broadened this provision to “cruel, excessive or unusual punishment”. (Italics ours.)

As stated in Sepulvado, . . the trial judge is given a wide discretion in the imposition of sentence within statutory limits, that the sentence imposed by him should not be set aside as excessive in the absence of a manifest abuse of his discretion, . . ” See also State v. Spencer, 374 So.2d 1195 (La.1979).

The sentencing judge in the instant case expressed concern regarding the circumstances of the case and the inherent dangers of the offense of armed robbery. It was further pointed out that the defendant will not necessarily stay incarcerated until his twenty-first birthday, but only until such time as he demonstrates that he is properly rehabilitated and ready to return to his community.

We, therefore, hold that in the disposition of a juvenile matter, the trial court is not required to follow L.S.A.-C.Cr.P. art. 894.1 rather than the general disposition guidelines set forth in L.S.A.-C.J.P. art. 86, and further, that the trial judge did not abuse his discretion in the sentence pronounced in this case.

AFFIRMED.


author: EDWARDS, Judge.

text:
    Alton A. DeLANEUVILLE v. Mark A. DUPLESSIS d/b/a Auto Engine Service.
    No. 13330.
    Court of Appeal of Louisiana, First Circuit.
    May 5, 1980.
    John A. Lieux, Gonzales, for plaintiff and appellee.
    Michael J. Matthews, Gonzales, for defendant and appellant.
    Before EDWARDS, LEAR and WATKINS, JJ.
   EDWARDS, Judge.

Plaintiff, Alton A. DeLaneuville, filed suit against defendant, Mark A. Duplessis, seeking to recover monies he had paid defendant for overhauling his automobile engine. Plaintiff alleged that the repair job was not satisfactory and that Duplessis refused to make any corrections. From a judgment awarding plaintiff $985.40, Du-plessis appeals. We affirm.

We note at the outset that there is no transcript of the trial. Nor is there a narrative of facts, whether written and signed by both parties or prepared by the trial judge. Rather, each party presented his own narrative version of the facts. Thus, the requirements of LSA-C.C.P. Arts. 2130 and 2131 have been ignored. Those articles provide as follows:

Art. 2130.
“A party may require the clerk to cause the testimony to be taken down in writing and this transcript shall serve as the statement of facts of the case. The parties may agree to a narrative of the facts in accordance with the provisions of Article 2131.”
Art. 2131.
“If the testimony of the witnesses has not been taken down in writing the appellant must request the other parties to join with him in a written and signed narrative of the facts, and in cases of disagreement as to this narrative or of refusal to join in it, at any time prior to the lodging of the record in the appellate court, the judge shall make a written narrative of the facts, which shall be conclusive.”

Clearly, an appellant has the primary duty to secure at least a narrative of the facts. Failure to do so is imputable to him and, where the trial court judgment depended on facts, will subject the appeal to dismissal if timely sought by the appel-lee. Omaha Steaks International v. Progressive Motor Hotel, 212 So.2d 558 (La. App. 1st Cir.1968). No timely motion for dismissal was filed here.

In the present case, there is no explanation for the lack of a transcript. Appellant simply relates in brief:

“No written reasons for judgment were rendered by the court; and for some reason, no transcript of the testimony given at trial exists.”

The trial court had no duty to furnish a narrative unless requested to do so by the appellant who first must have demonstrated the inability of counsel to agree on a statement pursuant to C.C.P. Arts. 2130 and 2131. Webre v. Heard, 207 So.2d 880 (La.App. 1st Cir.1968).

Even though both parties filed narratives portraying their version of the testimony, such testimony is not properly before this court for review. Hutcherson v. Welch, 316 So.2d 144 (La.App. 2nd Cir.1975).

Lacking any explanation for the missing transcript we must impute the absence to the appellant, Duplessis. With nothing to review, we can only follow the presumption that the trial court judgment was supported by competent evidence and should be affirmed. Succession of Walker, 288 So.2d 328 (1974); Iles v. White, 345 So.2d 1304 (La.App. 3rd Cir.1977); Bourgeois v. Daigle, 340 So.2d 1063 (La.App. 1st Cir.1976).

For the foregoing reasons, the trial court judgment is affirmed. All costs, both trial and appellate, are to be paid by Mark A. Duplessis.

AFFIRMED.


text:
    Cynthia L. CHANEY v. COMMERCIAL UNION INSURANCE COMPANY and Warren H. Lorio.
    No. 13331.
    Court of Appeal of Louisiana, First Circuit.
    May 5, 1980.

      Walter C. Dumas, Baton Rouge, for plaintiff-appellee Cynthia L. Chaney.
    William N. Faller, Baton Rouge, for defendants-appellants Commercial Union Insurance Co. and Warren H. Lorio.
    Before EDWARDS, LEAR and WATKINS, JJ.
   LEAR, Judge.

This is an action in tort for damages growing out of a two-car, intersectional collision in Baton Rouge, Louisiana. The plaintiff in the main demand is Cynthia L. Chaney (Chaney). Commercial Union Insurance Company (Commercial) and Warren H. Lorio (Lorio) are made defendants therein. Defendants denied liability and reconvened against Chaney alleging that the sole cause of the said collision was her negligence. After a trial of the matter, the trial court found that, “. . . the testimony of the two drivers and passengers is hopelessly in conflict and there is no physical evidence tending to support the testimony of either driver . . . .” The court then dismissed the main demand and reconven-tional demand. Both plaintiff and defendants filed notices of appeal, but plaintiff, thereafter, failed to timely pay costs. Her appeal was, therefore, dismissed.

Defendants have timely appealed and apparently rely on only one specification of error: That the trial court erred in rejecting defendant Lorio’s version of the accident.

The record shows that plaintiff’s vehicle was proceeding south on Plank Road near the intersection of Plank Road and Evangeline Street. Janice Sheppard and her minor son were passengers in plaintiff’s car and Ms. Sheppard was called to testify at trial. Her testimony, supportive of the plaintiff, was to the effect that plaintiff proceeded through the intersection with a green light in her favor. The defendant, Lorio, on the other hand, testified that he was proceeding west on Evangeline near the Plank Road intersection and, as he approached and proceeded through the intersection, he had the green light or right-of-way. His testimony was corroborated by that of his wife who was a passenger in the Lorio vehicle.

The City of Baton Rouge, responsible for the maintenance of all traffic lights, was not made a party to the suit.

After hearing and considering the evidence, the court found that the traffic lights were being operated properly. The trial court found, however, that the evidence was hopelessly in conflict and that it was not possible to determine which vehicle had run a red light.

Under the circumstances of this case, we are bound to uphold the decision of the lower court unless we find that manifest error was committed by the trial judge. Canter v. Koehring Company, et al., 283 So.2d 716 (La.1973).

The record herein supports the trial court’s conclusion as to irreconcilable conflicts in the testimony of the witnesses. In such instances, the trial court is required to look to other physical evidence in the case to determine where lies — if at all — the preponderance, Williams v. Bulk Transfers, Inc., 266 So.2d 472 (La.App. 4th Cir. 1972), or look to the testimony and/or findings and observations of the investigating police officer. See Zerartgue v. Hardware Dealers Mutual Fire Ins. Co., 255 So.2d 227 (La.App. 1st Cir. 1971). In the instant case, the police officer who investigated the accident did not testify. The record is not conclusive as to whether he was actually subpoenaed by the plaintiff. Nevertheless, the parties stipulated that the absence of the officer as a witness was not to be treated as an adverse presumption.

We are unable to conclude that the lower court’s dismissal of both the main and reconventional demands is manifest error and we, therefore, affirm.

For the reasons assigned, the judgment of the lower court will be affirmed, all costs of this appeal to be paid by defendant-appellant.

AFFIRMED.


author: WATKINS, Judge.

text:
    COLLECTOR OF REVENUE v. WELLS FARGO LEASING CORPORATION. COLLECTOR OF REVENUE v. WELLS FARGO TRANSPORT LEASING CORPORATION.
    Nos. 13333, 13334.
    Court of Appeal of Louisiana, First Circuit.
    May 5, 1980.
    Art B. Haack, Baton Rouge, for plaintiff-appellant Collector of Revenue.
    Martha L. Daetwyler, San Francisco, Cal., for defendants-appellees Wells Fargo Transport Leasing Corporation and Wells Fargo Leasing Corporation.
    Before EDWARDS, LEAR and WATKINS, JJ.
   WATKINS, Judge.

This is a consolidated appeal taken by the Collector of Revenue, State of Louisiana, from a decision of consolidated cases tried by the District Court which affirmed a judgment of the Board of Tax Appeals rendered after a consolidated hearing annulling two assessments of the Occupational License Tax (see LSA-R.S. 47:341 et seq.) against Wells Fargo Leasing Corporation and Wells Fargo Transport Leasing Corporation (hereafter collectively called “Wells Fargo”). We affirm.

According to argument of counsel for the Department of Revenue before the Board of Tax Appeals, Wells Fargo leases helicopters that are physically located in Iberia Parish. Wells Fargo, the Collector of Revenue concedes, has no office in the State of Louisiana. To get in touch with Wells Fargo, it is necessary to contact it in California.

As indicated, the first section of the Occupational License Tax statute is LSA-R.S. 47:341, which reads as follows:

“In addition to all other license and excise taxes imposed in other chapters of this Title or in other laws, there is hereby levied an annual license tax upon each person pursuing any trade, profession, vocation, calling or business in this state subject to license under Section 8 of Article X of the Constitution of 1921, which annual license tax shall be classified and graded as set out in the following Sections of this Chapter.”

The meaning of “pursuing any . business in this state . . . ” is to some extent defined and limited by the language of LSA-R.S. 47:345, which quoted in full is as follows:

“Except as otherwise expressly provided herein, any person taxed under this Chapter having one or more places of business shall pay a separate license for each class of business at each place.
“A separate license for each class of business at each place of business shall not be required where any person has taxable annual gross sales and taxable annual gross receipts in an aggregate amount of less than five thousand dollars ($5,000.00), or has only taxable annual gross sales or taxable annual gross receipts in an amount of less than five thousand dollars ($5,000.00). Only one license shall be required for each place of business, which license shall be based upon the classification of business which constitutes the major portion of the taxable annual gross sales or taxable annual gross receipts.”

We interpret R.S. 47:345, in stating “having one or more places of business”, to require that the taxpayer, as a general rule, have at least one place of business in this state in order to be subject to the tax. Wells Fargo has no place of business in Louisiana. Therefore, we hold that Wells Fargo is not subject to the Occupational License Tax.

This conclusion is further supported by considering LSA-R.S. 47:369 and 47:369.1, which are clearly intended to constitute exceptions to the general rule requiring that the taxpayer have at least one place of business in Louisiana to be subject to the Occupational License Tax. A reading of these two statutory provisions makes this construction quite clear:

Section 47:369
“Each person engaged in the trade, profession, vocation, calling or business of going from house to house, or from place to place, selling or offering for sale spices, flavoring extracts, toilet articles, soaps, insecticides, stock and poultry supplies, proprietary medicines and household remedies in original packages of the manufacturer and other packaged articles of the like or kind commonly used on the farm and in the home, shall pay a license tax, to be determined as follows:
“(1) When using a motor vehicle solely for the purpose of transporting merchandise from house to house, or from place to place, and not being used for the display of merchandise or as a rolling store and purchasers or prospective purchasers not being permitted to enter said vehicle for the purpose of inspecting or purchasing such merchandise, the annual license tax shall be fifty dollars ($50.00).
“(2) When operating as provided in paragraph (1) above, with a vehicle propelled by power other than motor, the annual license tax shall be twenty dollars ($20.00).
“(3) When operating without a vehicle of any kind, the annual license tax shall be ten dollars ($10.00).
“Persons residing in the parish where the license is issued and selling their goods exclusively in that parish shall pay only one-half of the amounts set forth in this Section. Upon payment of the license fees provided in this Section, the licensee shall be required to pay no other state, parish or municipal taxes for the privilege of carrying on the business described herein; and upon payment of the license or licenses herein provided, it shall be lawful for such itinerant vendors to sell any or all the merchandise herein described in the manner prescribed.” Section 47:369.1
“Each person who sells merchandise at retail, other than retail dealers selling from fixed places of business, and other than persons licensed as peddlers under R.S. 47:368-369, shall pay a license tax according to the rates set forth in R.S. 47:353, provided that the minimum license for this class shall be ten dollars. The persons licensed under this Section shall include, by way of extension and not limitation, persons who sell from trucks parked on or beside public streets and highways and persons who sell at temporary stands or places on or beside public streets or highways.”

As we are compelled to conclude that the Occupational License Tax cannot be levied upon a taxpayer that does not have a place of business in Louisiana (with the exceptions set forth above), we hold that the Board of Tax Appeals properly held that there was no tax liability in the present case, and that the trial court properly upheld this holding.

The judgment of the trial court is affirmed.

AFFIRMED.


text:
    CENTURY 21-ACADIA REALTY AND DEVELOPMENT COMPANY, INC. v. Carter M. BROUGH and Frances Hodgson Brough.
    No. 13338.
    Court of Appeal of Louisiana, First Circuit.
    May 5, 1980.
    Robert P. Cuccia, Houma, for plaintiff and appellant.
    Thomas L. Wright, Houma, for defendants and appellees.
    Before EDWARDS, LEAR and WATKINS, JJ.
   EDWARDS, Judge.

Century 21-Acadia Realty and Development Company, Inc., plaintiff-appellant, seeks reversal of a trial court judgment rejecting its demands against Carter M. Brough and Frances Hodgson Brough, defendants, and granting the Broughs’ reeon-ventional demand for $1,000.00, interest and costs. We remand.

In a joint stipulation made June 13, 1979, all parties agreed in paragraph 6 that a letter, dated November 9, 1978, from Mr. Paul Duet to Mr. Elward Wright, would be introduced into evidence. Through an apparent oversight, this letter, without which a fair and complete review of this case cannot be made, was not placed in the record.

LSA-C.C.P. Art. 2132 provides:

“A record on appeal which, is incorrect or contains misstatements, irregularities or informalities, or which omits a material part of the trial record, may be corrected even after the record is transmitted to the appellate court, by the parties by stipulation, and by the trial court or by the order of the appellate court. All other questions as to the content and form of the record shall be presented to the appellate court.”

Under the authority of LSA-C.C.P. Art. 2132, we remand this case. Counsel for Carter M. Brough and Frances Hodgson Brough is to be given a reasonable period of time to introduce the letter of November 9, 1978, into the record. All costs are to await a final determination on the merits.

REMANDED.


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    Julianna COURTNEY, Individually and as Administratrix of the Estate of Shane Abel Courtney v. BASF WYANDOTTE CORPORATION et al.
    No. 13341.
    Court of Appeal of Louisiana, First Circuit.
    May 5, 1980.

      Walton J. Barnes, III, Zachary, for plaintiff-appellant Julianna Courtney, Ind., Etc.
    Edward W. Gray, Baton Rouge, for defendant-appellee BASF Wyandotte Corp.
    Before EDWARDS, LEAR and WATKINS, JJ.
   EDWARDS, Judge.

Plaintiff-appellant, Julianna Courtney, filed suit on behalf of herself and her minor child, Shane Abel Courtney, against BASF Wyandotte Corporation, National Maintenance Corporation, Barnard and Burk, Inc., and Hartford Life and Accident Insurance Company. She sought $3,000,000 in damages for the death of her husband, John Edward Courtney, who was electrocuted while working for BASF Wyandotte.

BASF Wyandotte and Hartford filed a peremptory exception of no cause and/or right of action on the ground that, since John Courtney had been an employee of BASF, plaintiff’s exclusive remedy was Workmen’s Compensation. The exception of no cause of action was sustained in favor of BASF and Hartford, and, following plaintiff’s failure to amend her original petition within fifteen days so as to state a cause of action against the exceptors, suit as to them was dismissed with prejudice. Plaintiff’s rights against all other defendants were expressly reserved. From the judgment dismissing her suit as to BASF Wyandotte and Hartford, plaintiff appeals. We affirm.

The facts surrounding John Courtney’s death are undisputed. He was found lying against a chlorine cell containing 198 volts at 45,000 amps. Evidently, while engaged in the normal course and scope of his employment (taking meter readings), Courtney walked on a steel grating near the chlorine cell, stepped in a 4%" X I6V2" hole in the grating, fell against the cell, which had no safety devices or guard, and was electrocuted.

On appeal, Mrs. Courtney argues that the Louisiana Workmen’s Compensation Law, LSA-R.S. 23:1021 et seq., does not preclude an employee’s suit in tort against his employer where the duty owed and breached is outside the employment relation. We agree with this contention, but it has no applicability in the present case since we find that John Courtney was killed in the scope of his employment.

The exclusivity of Workmen’s Compensation as a remedy for employees is established by LSA-R.S. 23:1032.

“The rights and remedies herein granted to an employee or his dependent on account of an injury, or compensable sickness or disease for which he is entitled to compensation under this Chapter, shall be exclusive of all other rights and remedies of such employee, his personal representatives, dependents, or relations, against his employer, or any principal or any offi-eer, director, stockholder, partner or employee of such employer or principal, for said injury, or compensable sickness or disease. For purposes of this Section, the word ‘principal’ shall be defined as any person who undertakes to execute any work which is a part of his trade, business or occupation in which he was engaged at the time of the injury, or which he had contracted to perform and contracts with any person for the execution thereof.
Nothing in this Chapter shall affect the liability of the employer, or any officer, director, stockholder, partner or employee of such employer or principal to a fine or penalty under any other statute or the liability, civil or criminal, resulting from an intentional act.
The immunity from civil liability provided by this Section shall not extend to: 1) any officer, director, stockholder, partner or employee of such employer or principal who is not engaged at the time of the injury in the normal course and scope of his employment; 2) to the liability of any partner in a partnership which has been formed for the purpose of evading any of the provisions of this Section.” LSA-R.S. 23:1031 provides in part:
“If an employee . . . receives personal injury by accident arising out of and in the course of his employment, his employer shall pay compensation in the amounts . . hereinafter designated.”

Clearly, the only statutory exception to Workmen’s Compensation as a remedy is for intentional torts.

Appellant’s petition, paragraph 13, avers that “The conduct herein alleged against BASF Wyandotte is of such a nature that same is wilful and as such should be classified as intentional.”

A merely cursory examination of the record shows that BASF’s failure to place a guard on the chlorine cell does not even begin to demonstrate the standard of proof necessary to prove an intentional tort: 1) that the defendant must have entertained a desire to bring about the result which followed and 2) that the defendant should have believed that the result was substantially certain to follow. Guidry v. Aetna Casualty and Surety Company, 359 So.2d 637 (La.App. 1st Cir. 1978), writ denied 362 So.2d 578 (1978); Monk v. Veillon, 312 So.2d 377 (La.App. 3rd Cir. 1975).

Appellant further urges that the negligent failure to repair a known hazard is the breach of a duty owed outside the employment relation and that the legislature did not intend Workmen’s Compensation to be the sole remedy in such a case. We disagree.

The textual wording of LSA-R.S. 23:1032 makes manifest the legislative intent:

“The rights and remedies herein granted . . shall be exclusive of all other rights and remedies of such employee . . against his employer[.]”

Jurisprudential support for the exclusivity of Workmen’s Compensation has been unwavering. Recent cases include Waggoner v. Kellogg-Moore Oil Company, Inc., 375 So.2d 197 (La.App. 2nd Cir. 1979); Flynn v. Devore, 373 So.2d 580 (La.App. 3rd Cir. 1979); Kelley v. M and M Dodge, Inc., 370 So.2d 1267 (La.App. 3rd Cir. 1979); Gothreaux v. Gulf Oxygen Company, Inc., 289 So.2d 235 (La.App. 3rd Cir. 1974).

In the case of Atchison v. Archer-Daniels-Midland Company, 360 So.2d 599 (La.App. 4th Cir. 1978), writ denied 362 So.2d 1389 (1978), it was held that an employer who manufactured a product and used it in its own workplace could not be sued in tort on a products liability basis when the product injured an employee and that the employee must seek Workmen’s Compensation as his sole remedy.

Appellant cites Douglas v. E. & J. Gallo Winery, 69 Cal.App.3d 103, 137 Cal.Rptr. 797 (Cal.App.1977), and Duprey v. Shane, 39 Cal.2d 781, 249 P.2d 8 (1952), for the proposition that an employer may have more than one relation to his employee and that the employer may be sued in tort provided the relation is other than employer-employee.

While California courts may freely choose to erode the employer’s immunity from tort suits and to provide plaintiff employees with additional grounds for recovery, Louisiana courts, particularly in light of our legislative history, may freely choose not to follow.

When the legislature amended LSA-R.S. 23:1032 by passing Act 147 of 1976, it was to legislatively overrule Canter v. Koehring Company, 283 So.2d 716 (1973), which had allowed executive officer suits as an additional remedy to employees. Atchison v. Archer-Daniels-Midland Company, supra, eliminated products liability suits as a vehicle for employees to avoid the limitations of Workmen’s Compensation.

The principle behind Workmen’s Compensation

“is a compromise whereby the employer surrenders the immunity against liability which he would otherwise enjoy in all cases where he was without fault, and, in return, the employee loses his right to full damages for his injury and accepts instead a limited sum by way of compensation. It is obvious that this mutual surrender by employer and employee could not be effectuated if either party were free to ignore the Act whenever it would be to his advantage to do so. For this reason, proceedings for compensation afford the exclusive remedy available to the parties within the area where the Act applies.”
Malone, Louisiana Workmen’s Compensation, Sec. 361 (1951). (footnote omitted).

In choosing not to erode this principle, we hold that the conditions of an employer’s workplace, so long as they do not rise to the level of an intentional tort, are part of the employee’s course of employment. As such, an injured employee’s sole remedy is Workmen’s Compensation.

For the foregoing reasons, the trial court judgment is affirmed. All costs of these proceedings, both trial and appellate, are to be paid by Julianna Courtney.

AFFIRMED.

      . Plaintiff’s original petition erroneously named Hartford Life and Accident Insurance Company as a defendant. The petition was answered and suit was defended by Hartford Accident and Indemnity Company.


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    ARDENWOOD ENTERPRISES v. Claude LATIOLAIS.
    No. 13342.
    Court of Appeal of Louisiana, First Circuit.
    May 5, 1980.
    C. Kris Kirkpatrick, Baton Rouge, for plaintiff-appellee Ardenwood Enterprises.
    Frank Dickinson, III, Baton Rouge, for defendant-appellant Claude Latiolais.
    Before EDWARDS, LEAR and WATKINS, JJ.
   LEAR, Judge.

This suit involves an alleged default on a building contract. Defendant reconvened for cost of certain extras in the sum $4,076.00, plus attorney fees. of

The record reveals that plaintiff and defendant entered into a written contract on December 16, 1973 wherein defendant was to perform certain work on an apartment complex owned by plaintiff. Defendant subcontracted the sheetrock portion of the work to one William Evans and, thereafter, on or about March 6, 1974, commenced to perform the balance of the work. Plaintiff, at defendant's request, made payments jointly to defendant and Evans and later directly to Evans. Sometime in March of 1974, defendant left the job and plaintiff completed the work with defendant’s crew. Plaintiff alleges the cost ran $41,387.29 over the contract price. Numerous cancelled checks and invoices were introduced in evidence at the trial and the court concluded in a written opinion that plaintiff had proved a claim for $20,409.02, which amount took into consideration defendant’s reconven-tional demand, among other credits.

This is basically a factual matter. A review of the record and the filings therein indicates that the trial judge made a reasonable evaluation of the testimony and the evidence and we are not inclined to disturb those findings. Therefore, the judgment of the trial court is affirmed, defendant-appellant to pay all costs.

AFFIRMED.


text:
    FIRST GUARANTY BANK v. Joseph R. GERACE et al.
    No. 13343.
    Court of Appeal of Louisiana, First Circuit.
    May 5, 1980.

      Charles G. Walker, Hammond, for plaintiff.
    James A. McGraw and Willie D. Maynor, Baton Rouge, for defendants.
    James A. Dukes, Hammond, for Marie B. Kimble, third party defendant.
    Before EDWARDS, LEAR and WATKINS, JJ.
   WATKINS, Judge.

This is an appeal brought by the First Guaranty Bank, Tangipahoa Parish, from a judgment of the District Court upholding a decision of the Louisiana Board of Review of the Office of Employment Security which held that Marie Kimble, a former employee of that Bank, was not disqualified from unemployment benefits under LSA-R.S. 23:1601(2). We reverse.

It appears that Ms. Kimble was head of the credit card section of the appellant bank. By her own admission, she agreed to advance five hundred dollars to a former bank employee who had used his credit up to the credit limit on his credit card. Three hundred dollars of this advance was placed in the borrower’s checking account, with the said borrower’s understanding that Ms. Kimble would place the remaining two hundred dollars in her own account for her own use until the first of the month, when she would pay the said borrower back. For doing this, Ms. Kimble was dismissed from employment. She applied for unemployment compensation.

Under LSA-R.S. 23:1601(2), an employee may be denied unemployment compensation if he was discharged for misconduct connected with his employment. It appears that Ms. Kimble was properly discharged for misconduct, as she in effect received consideration in return for making an advance or loan. Regardless of her knowledge of banking rules, her conduct was patently improper and she should have known that it was.

Findings of the Board of Review as to facts are conclusive if supported by sufficient evidence and in the absence of fraud. Benward v. Gerace, 370 So.2d 660 (La.App. 4th Cir. 1979). The record contains no findings of fact by the Board of Review in the present case, and clearly its determination by implication that Ms. Kimble was not properly dismissed for misconduct flies in the face of her own representation of her conduct.

Accordingly, the judgment of the trial court is reversed, and Ms. Kimble’s claim is denied.

REVERSED.


text:
    Henry HIGDON v. Dolores Kucera HIGDON.
    No. 13347.
    Court of Appeal of Louisiana, First Circuit.
    May 5, 1980.

      E. Neal Harmon, Port Allen, of counsel, for plaintiff-appellant.
    Jerry F. Davis, Baton Rouge, of counsel, for defendant-appellee.
    Before EDWARDS, LEAR and WATKINS, JJ.
   WATKINS, Judge.

This is an action for divorce brought by the husband. The trial court granted a divorce based on one year having elapsed without reconciliation following a judgment of separation from bed and board. Permanent alimony was granted the wife, who was found to be without fault, in the amount of $175.00 per month. No children were born of the marriage, so child support is not involved. The husband has appealed, seeking to set aside the judgment granting permanent alimony. We affirm.

The husband, Henry Higdon, and the wife, Dolores Kucera Higdon, were judicially separated by judgment dated December 29,1977. On January 31, 1979, Mr. Higdon filed suit for divorce on the ground of failure to reconcile for one year after a judgment of separation. The wife admitted the husband’s allegations, recited that alimony pendente lite had been awarded in the amount of $250.00 per month, and prayed for an “increase” in alimony to $350.00 per month. The pleading was captioned simply “ANSWER”, although it quite obviously embodied a reconventional demand as well. Mr. Higdon filed, on March 21, 1979, an amending and supplemental petition seeking divorce on the ground of adultery. The wife answered with a denial of the allegation of adultery, and again prayed for alimony, the pleading being captioned “ANSWER TO FIRST AMENDING & SUPPLEMENTAL PETITION FOR DIVORCE”, although, again, the pleading obviously embodied a reconventional demand as well. The husband sought to prove adultery at the trial on the merits, and did prove failure of the parties to become reconciled for one year. The trial court granted a divorce on the ground of failure to become reconciled for one year following judgment of separation. The trial court stated in oral reasons for judgment: “There’s a specific finding by the Court that the petitioner has failed to prove adultery.” It awarded permanent alimony in the amount of $175.00 per month.

In appealing, Mr. Higdon raised the following issues: (1) the correctness of the factual finding that Mr. Higdon has failed to prove adultery, (2) the sufficiency of the wife’s pleadings in seeking permanent alimony, and (3) the necessity of the alimony.

ADULTERY

We have read the entire record, including the transcript of testimony (no exhibits concern this issue), very carefully, and find that there is no manifest error in the trial court’s finding that there was no proof of adultery.

SUFFICIENCY OF PLEADINGS

Mr. Higdon, appellant, contends that the two answers and reconventional demands mentioned above are improper because the captions to the two pleadings do not indicate that the two pleadings contain recon-ventional demands as well as answers, and, also, because the two pleadings do not contain a prayer for alimony as permanent alimony, but rather, simply state “alimony”.

Under LSA-C.C.P. art. 1032 a pleading containing both an answer and a reconventional demand shall be captioned so as to “indicate appropriately the dual character of the combined pleading”. The wife’s first pleading in the present divorce proceeding was captioned simply “ANSWER”, and the caption to the second pleading likewise indicated that the pleading was an answer only. LSA-C.C.P. art. 865 provides, “Every pleading shall be so construed as to do substantial justice.” The jurisprudence holds that courts may overlook miscaptioning of a pleading where the other party is not prejudiced. See Succ. of Smith, 247 La. 921, 175 So.2d 269 (1965); Davis v. Southern Farm Bureau Cas. Ins. Co., 324 So.2d 468 (La.App. 3rd Cir. 1975); Cvitanovieh v. Sorli, 347 So.2d 1204 (La. App. 1st Cir. 1977). In the present case, it is clear that Mr. Higdon was not prejudiced by the improper captioning of the pleading, as it is quite clear from the manner in which the trial on the merits was conducted that there was no surprise, and that counsel for Mr. Higdon was fully aware of the fact that Mrs. Higdon was reconvening seeking permanent alimony. The same reasoning holds true with respect to the failure to use the adjective “permanent” before the noun “alimony” in the prayer. Counsel for Mr. Higdon was not misled or surprised. Furthermore, except in the case of judgment by default, “a final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings and the latter contain no prayer for general and equitable relief”. LSA-C.C.P. art. 862. Here, it is quite apparent that if Mrs. Higdon is entitled to alimony, it is permanent alimony to which she is entitled, not alimony pendente lite. We, therefore, find counsel for appellant’s contentions with respect to the insufficiency of the pleadings to be without merit.

NECESSITY OF ALIMONY

The following standard is set forth in many cases, including Ward v. Ward, 339 So.2d 839 (La.1976), for the awarding of permanent alimony:

“This alimony after divorce is not awarded in an amount sufficient to support the former wife in the manner in which she is accustomed to live; rather, it is awarded in an amount sufficient to provide for her maintenance, which includes food, clothing, shelter, and other basic necessities; and the wife has the burden of establishing her necessitous circumstances. Bernhardt v. Bernhardt, supra [283 So.2d 226]; Vicknair v. Johnson (Vicknair), 237 La. 1032, 112 So.2d 702 (1959); Stabler v. Stabler, 226 La. 70, 75 So.2d 12 (1954).” (339 So.2d 839, 842)

Mr. Higdon is employed and has a net monthly income of $1,263.00; Mrs. Hig-don is also employed and has a net monthly income of $490.59. She has monthly expenses which she itemized, and which appear to be almost entirely for necessities, of $811.00. Even if Mrs. Higdon overstates her monthly federal tax liability as $100.07, in view of her 1978 income tax of $351.56 (although she had a wage increase of 75<t per hour), this possible error in tax liability increases her monthly net income, in rough figures, only to $560.00 per month, which is not enough to meet the expenses proven. We, therefore, find that there was no clear abuse of discretion in the trial court’s awarding Mrs. Higdon permanent alimony of $175.00 per month. See Nicolle v. Nicolle, 308 So.2d 377 (La.App. 4th Cir. 1975); Johnson v. Johnson, 293 So.2d 213 (La.App. 3rd Cir. 1974).

We are somewhat concerned about the fact that the former community includes about 27 acres of land surrounding a house (also community) in Erwinville, some or all of which land should be considered as an asset of the spouses under LSA-C.C. art. 160 (as amended) in determining permanent alimony. However, there is nothing in the record that would indicate the value of the land and improvements located thereon.

Accordingly, the judgment of the trial court is affirmed, at appellant’s cost.

AFFIRMED.

      . The trial court first issued written reasons holding LSA-C.C. art. 160 as it stood before the 1979 amendment to be a denial of equal protection, and hence unconstitutional, in the light of the holding in Orr v. Orr, 440 U.S. 268, 99 S.Ct. 1102, 59 L.Ed.2d 306 (1979). Orr struck down an Alabama alimony statute which was similar to C.C. art. 160 as it stood before amendment, on the ground that, under the Alabama statute, equal protection was denied, as a wife could obtain alimony from the husband, but not vice versa. The trial court later enforced C.C. art. 160 as it stood after amendment (Act No. 72 of 1979, Sec. 1), the final judgment not having been signed when the amendment took effect (June 29, 1979). The husband has now abandoned his argument that C.C. art. 160 as amended is unconstitutional, having abandoned that argument as a result of the decision in Lovell v. Lovell, 378 So.2d 418 (La.1979).

      . Mrs. Higdon testified that all these expenses were for necessities, and, while we are uncertain whether or not she is correct with regard to a few items, her testimony with regard to the necessity of these items is not refuted or contradicted.


text:
    Anthony J. DELATTE v. Lloyd WILD, Jr., et al.
    No. 13354.
    Court of Appeal of Louisiana, First Circuit.
    May 5, 1980.

      Michael V. Clegg, Adcock, Dupree & Shows, Baton Rouge, for plaintiff.
    Brent E. Kinchen, and Kenneth E. Bar-nette, Seale, Smith & Phelps, Baton Rouge, for defendants.
    Before EDWARDS, LEAR and WATKINS, JJ.
   LEAR, Judge.

This is an action for damages growing out of a two-car collision along a rural road in Livingston Parish.

The trial court found that plaintiff-appel-lee, Anthony J. Delatte (Delatte), was operating his father’s automobile along Koto Road when suddenly and without any prior warning defendant-appellant, Lloyd Wild, Jr. (Wild), pulled his pickup truck out onto the highway, across the lane of travel of the Delatte vehicle. Although the Delatte vehicle apparently took emergency action to avoid the accident, a collision ensued with the truck striking the Delatte vehicle on the right front side of the car.

The court further found that the sole and proximate cause of the accident was occasioned by the actions of Wild and made awards to Delatte for property and special damages, as well as pain and suffering.

Defendant-appellant now perfects this appeal alleging that the trial court committed manifest error in holding for plaintiff under the factual circumstances of this case.

It is axiomatic that the trial court’s decision will not be disturbed unless the appellant is able to show manifest error. Appellant has failed to show manifest error with regard to specifications of error II-IV, inclusive, i. e., that the trial court erred in its application of the sudden emergency doctrine; its failure to find contributing negligence; and the amount of damages awarded to plaintiff. We find that there is ample evidence in the record to support the holdings of the trial court which these specifications attack. However, we view differently the appellant’s first specification which assigns error to the trial court award to plaintiff-appellee of $900.00 for property damage to the automobile. On the trial of the cause, no evidence was adduced to establish that the plaintiff owned the subject vehicle or otherwise had an ownership interest therein.

Article 681 of the Code of Civil Procedure provides, “Except as otherwise provided by law, an action can be brought only by a person having a real and actual interest which he asserts.”

Appellant has timely filed an exception of no right of action in this court. See C.C.P. article 2163. We find merit in this exception and accordingly reverse the trial court’s award to plaintiff-appellee for automobile damages of $900.00. See Odenwald v. W.J.B.W. Radio Station, 173 So.2d 830 (La.App. 4th Cir. 1965), and Dawson Engineers, Inc. v. Lemel Iron Works, Inc., 307 So.2d 771 (La.App. 1st Cir. 1975).

For the above and foregoing reasons, the judgment of the trial court awarding $900.00 to plaintiff-appellee for automobile property damage is reversed and set aside. In all other respects, the judgment of the trial court is affirmed.

Costs of this appeal are assessed against defendant-appellant.

AFFIRMED IN PART, REVERSED IN PART, AND RENDERED.


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    Horace WHITE v. DEPARTMENT OF HEALTH AND HUMAN RESOURCES, Charily Hospital at New Orleans.
    No. 13355.
    Court of Appeal of Louisiana, First Circuit.
    May 5, 1980.

      Robert J. Stamps, New Orleans, for appellant.
    Philip H. Kennedy, New Orleans, for ap-pellee.
    Before EDWARDS, LEAR and WATKINS, JJ.
   WATKINS, Judge.

This is an appeal from a judgment of the State Civil Service Commission in which a motion for summary disposition for failure to appeal timely to the Commission was granted. We affirm.

Appellant, Horace White, was a chauffeur for Charity Hospital in New Orleans. On September 28,1978, Mr. White was notified that he was being suspended indefinitely effective September 29, 1978, pending termination.

Appellant filed a grievance with the authorities at Charity Hospital. He then, by undated letter postmarked January 3,1979, appealed his indefinite suspension to the State Civil Service Commission.

Civil Service Rule 13:12 (Delay for Making Appeal) (a) reads as follows:

“(a) No appeal shall be effective unless a written notice complying with the requirements of Rule 13.11 is either (i) received in the office of the Director of the State Department of Civil Service at Baton Rouge, Louisiana, or (ii) is addressed to the Director of the State Department of Civil Service at Baton Rouge, Louisiana, with proper postage affixed, and is dated by the United States Post Office.
“1. Within thirty (30) calendar days after the date on which appellant received written notice of the action on which the appeal is based when written notice before or after the action is required by these Rules; or
“2. Within thirty (30) calendar days after the date when appellant learned or was aware that the action complained of had occurred when no written notice is required by these Rules or, if required, was given tardily or not at all.”

Nothing in this Civil Service Rule or in any other Rule provides for interruption of the time for appeal by the filing of a grievance or taking other non-appellate action. The Rules not providing for interruption of the time of appeal, there can be none in the present case.

The Civil Service Rules have the force of law, and the Courts of this State will not pass upon the wisdom or policy of the Rules. Boucher v. Division of Employment Security, 226 La. 227, 75 So.2d 343 (1954), Young v. Charity Hospital of Louisiana, 226 La. 708, 77 So.2d 13 (1954).

As Mr. White did not appeal to the State Civil Service Commission within 30 calendar days after he received written notice of his indefinite suspension, the State Civil Service Commission properly granted a motion for summary disposition for failure to appeal timely, and the judgment of the State Civil Service Commission is affirmed, at appellant’s costs.

AFFIRMED.