text:
    Irvin TRAHAN, Plaintiff-Appellant, v. CITY OF JENNINGS MUNICIPAL FIRE AND POLICE CIVIL SERVICE BOARD, Defendant-Appellee.
    No. 8694.
    Court of Appeal of Louisiana, Third Circuit.
    March 10, 1982.

      Charles L. Bull, Jr., Welsh, for plaintiff-appellant.
    F. Jefferson Millican, Jennings, for defendant-appellee.
    Before CULPEPPER, GUIDRY and STOKER, JJ.
   GUIDRY, Judge.

Sergeant Irvin Trahan was dismissed from the Jennings, Louisiana Police Department on June 13, 1980. Trahan appealed his dismissal to the City of Jennings Municipal Fire and Police Civil Service Board (hereafter the Board). The Board conducted a hearing and sustained Trahan’s dismissal. Thereafter, Trahan timely appealed the Board’s action to the 31st Judicial District Court. The district court affirmed concluding that the decision of the Board was made in good faith and for cause pursuant to the provisions of LSA-R.S. 33:2561. Trahan now appeals the decision of the district court.

LSA-R.S. 33:2531-2568 set forth the fire and police civil service laws for small municipalities. Pursuant to LSA-R.S. 33:2561, Trahan was furnished with written notification of his termination and the reasons therefor. In the aforesaid statement, Trahan was informed that he was being terminated from the police department for violation of several departmental rules, regulations, and policies as well as for violation of certain provisions of the Civil Service Act. The violations allegedly committed by Trahan are as follows:

310.52. Conduct towards superior and subordinate officers and associates. Members and employees shall treat superior officers and associates with respect. They shall be courteous and civil at all times in their relationships with one another when on duty, and particularly, in the presence of the other members and employees or the public. Officers shall be referred to by rank.

310.28. Insubordination. Failure or deliberate refusal of any member or employee to obey a lawful order or criticize instructions or orders being given by a superior officer shall be insubordination.

310.40. Performance of duty. All members and employees shall perform their duties as required or directed by law, department rule, policy, or order or by order from the superior officer. All lawful duties required by competent authority shall be performed promptly as directed notwithstanding the general assignments of duties and responsibilities.

275.10. Leadership. Supervisors must provide leadership for subordinates and this implies the assumption, the initiative when necessary, in setting a proper example in leading the way in carrying out an action or responsibility. Provisions of leadership shall include on-the-job training as needed for efficient operation and coordination of effort when more than one member or employee is involved.

General Order 7101. Interviews prohibited. No member of the department will give out interviews, make statements for publication, or make speeches on department policy or business without permission from proper authorities.

In addition, Sgt. Trahan was charged with violating the Civil Service Act 282 § 2560(d) & (e) (LSA-R.S. 33:2560 A(4) & A(5)) which read respectively:

“§ 2560. Corrective and disciplinary action for maintaining standards of service
A. The tenure of persons who have been regularly and permanently inducted into positions of the classified service shall be during good behavior. However, the appointing authority may remove any employee from the service or take such disciplinary action as the circumstances warrant in the manner provided below, for any one of the following reasons:
4. Insubordination.
5. Conduct of a discourteous or wantonly offensive nature toward the public or toward any municipal officer or employee, and any dishonest, disgraceful or immoral conduct....”

The incident which gave rise to Trahan’s termination occurred on May 30, 1980. On that date, Trahan allegedly stormed into police headquarters visibly upset. He confronted Assistant Chief of Police, Merrion S. Taylor and began yelling and screaming about the contents of an article printed in the local daily newspaper. The substance of Trahan’s complaint centered upon a report in the newspaper indicating that an investigation by the police department into a rash of thefts occurring in the town had not revealed any involvement of members of the police force. Trahan had been assigned to the aforesaid investigation and his investigative efforts had revealed that a member of the police department was involved in the series of thefts. Trahan was particularly upset because a suspect whom he had previously questioned had been re-questioned at some later time without anyone notifying Trahan or requesting his presence at the second interview. Taylor stated that Trahan, within earshot of police officers and other persons in the building, accused him of interfering with his investigation and of covering up for an officer in the department. Thereafter, Trahan departed the office, whereupon he confronted the Mayor of Jennings, Alan Garman. Mayor Garman testified that Trahan was in an enraged state when he met him in the hall of the building. Garman stated that he ushered Trahan into his office to avoid a confrontation before the other persons in the building. Again, Trahan loudly complained that someone was interfering with his investigation. At that time, Mayor Gar-man specifically ordered Trahan not to speak with the newspapers regarding his complaints since the matter was strictly an internal police department matter. Thereafter, Trahan departed the Mayor’s office after which he made a statement to the press regarding his complaints which was later published.

The issues on appeal are:

(1) Did the Board commit reversible error by failing to timely provide a certified copy of the transcript of plaintiff’s civil service hearing to the district court?

(2) Did the police department manual of rules and regulations contain conflicting orders, and if so, did such conflicting orders violate plaintiff’s due process rights?

(3) Did plaintiff’s conduct in disobeying a direct order issued by the Mayor of Jennings constitute insubordination under the provisions of LSA-R.S. 33:2560 and police department regulation 310.28?

(4) Was plaintiff’s dismissal from the Jennings Police Department made in good faith and for cause as required by LSA-R.S. 33:2561?

On appeal, plaintiff first contends that the decision of the Board sustaining his dismissal from the Jennings Police Department should be reversed due to the Board’s failure to timely provide the district court with a certified copy of the transcript of plaintiff’s hearing as required by the provisions of LSA-R.S. 33:2561, supra. The aforesaid statute provides that any employee and/or any appointing authority may appeal from any decision of the board or from any action taken by the board which is prejudicial to the employee or the board. Such appeal is perfected “.. . by serving the board, within thirty days after entry of its decision, a written notice of appeal, stating the grounds thereof and demanding that a certified transcript of the record, or written findings of fact, and all papers on file in the office of the board affecting or relating to such decisions, be filed with the designated court.. . . ” The board must then make, certify, and file the complete transcript of the hearing with the designated court within ten days of the filing of plaintiff’s notice of appeal.

The record before us does not contain a copy of plaintiff’s notice of appeal, but we note that there is no dispute regarding the timeliness of same. However, the record does reflect that on October 13,1980, plaintiff filed with the district court a motion to show cause why the Board should not be held in violation of LSA-R.S. 33:2561 for its failure to file a certified copy of the transcript with the district court. In his motion, plaintiff urged that the Board had presumably abandoned the appeal and judgment should be rendered in favor of petitioner. Plaintiff’s motion was subsequently denied. The record reflects that a copy of the hearing transcript was filed with the district court on October 21, 1980. On November 3,1980, subsequent to trial of plaintiff’s motion, the transcript copy was certified. Thus, the record indicates that a certified copy of the transcript of plaintiff’s civil service hearing was not timely filed with the district court. Be that as it may, plaintiff has not alleged that he sustained any prejudice as a result of the delinquent filing of the certified transcript. Thus, although we conclude that the Board should have adhered to the time delays for filing as set forth in the applicable statute, absent some showing that petitioner has sustained some prejudice, we conclude that such delay was harmless. See Lauro v. Traveler’s Insurance Co., 261 So.2d 261 (La.App. 4th Cir. 1972), writ denied, 262 La. 188, 262 So.2d 787 (1972).

In substance, plaintiff’s second contention is that the Jennings Police Department manual containing the rules and regulations governing the conduct of police officers employed by that municipal agency contained conflicting rules and regulations such that plaintiff was not provided with adequate notice of employee conduct prohibited by the department.

In support of this allegation, plaintiff argues that General Order 77-10 and General Order 150.40, both pertaining to chain of command, are in conflict. The aforesaid orders provide respectively as follows:

“77-10 Chain of Command — Chief of Police, Assistant Chief, Lieutenant, Police Sergeant, Patrolman-First Class, Patrolman, Police Dispatcher.”
“150.40 Chain of Command — Chief of Police, Administrative Assistant, Lieutenant, Police Sergeant, Corporal, Patrolman-First Class, Patrolman, Police Dispatcher. ”

Chief Taylor indicated at the hearing that the difference between the two orders is due to the time during which each was issued. General Order 150.40 was issued subsequent to General Order 77-10. The latter order reflects the change in rank of department personnel. Thus, as department personnel qualify for higher positions by taking the requisite examinations, such higher ranks are reflected in the chain of command.

In addition, although it appears that the aforestated orders are in conflict to a minor degree, we fail to discern any real significance of such difference to the issues presently before this court.

Of greater import, however, is plaintiff’s contention that there existed, at the time of the disputed incident, conflicting rules and regulations governing access to the media by department employees. In this regard, plaintiff contends that General Order 7101 issued in 1971 prohibited interviews with the press unless permission was specifically granted by the proper authorities. However, Trahan argues that in direct conflict to the provisions of General Order 7101 is General Order Number 5 purportedly issued in 1972 which provides as follows:

“Press releases. — Representatives of the news media are authorized to interview any member of this department on a person-toperson (sic) basis regardless of rank, but this privilege shall not extend to any act which may in any manner jeopardize the investigation and progress or future court proceedings.”

Plaintiff argues that the conflicting regulations violate his due process rights in that due process requires that department rules and regulations clearly set forth proscribed conduct.

Chief Taylor testified that the rules and regulations manual in effect at the time of the incident, a copy of which he referred to during his testimony, did not contain General Order Number 5 as alleged by plaintiff. Rather, Taylor stated, General Order 7101 was in full force and effect at the time of the incident. Several officers of the Jennings Police Department testified that the department had an organized procedure for keeping employees informed regarding rules and regulations in effect at any given time. All of the officers stated that they were aware of General Order 7101 prohibiting them from contact with the press unless permission was obtained from the proper authorities within the department.

Trahan conceded at the hearing that he had knowledge of the prohibition regarding the discussion of police matters with the news media. He further admitted that contra to the clear requirement in General Order 7101, he failed to obtain permission from a superior officer before making his statements to the press. Trahan also conceded that Mayor Garman specifically instructed him not to talk to the newspaper regarding his complaints about the news article appearing on May 30, 1980. In his defense, plaintiff indicated that he did not believe that he was violating the aforesaid general order when he made his statement to the press. Trahan testified that he felt his statements pertained to personal matters, not police business, and that he had a right as a citizen to clear himself in the press. However, when questioned regarding the substance of his complaints with the department, Trahan indicated that he felt that there had been several burglaries committed which were not being investigated by the department.

Although the trial judge does not so state, in his brief written reasons for judgment, presumably, he concluded that General Order 7101 was in effect at the time of the incident and that the plaintiff knowingly issued a statement to the press pertaining to police business in clear contravention of the aforesaid regulation. Further, plaintiff’s own testimony clearly establishes that he had knowledge that his contact with the media regarding police business absent permission from his superior officers was proscribed by the applicable rules and regulations of the department.

The standard of appellate review of findings of fact in Civil Service Commission cases necessarily must be the same as those which exist in regard to cases arising in the trial courts. See Herbert v. Department of Police, 362 So.2d 1190 (La.App. 4th Cir. 1978). Our review of the record reveals no clear error on the part of the trial court in its conclusions. Canter v. Koehring Company, 283 So.2d 716 (La.1973); Arceneaux v. Domingue, writ granted, 359 So.2d 1303 (La.1978), 365 So.2d 1330 (La.1978), on remand, 370 So.2d 1262 (La.App. 3rd Cir. 1979); Bertrand v. Aetna Casualty and Surety Company, 306 So.2d 343 (La.App. 3rd Cir. 1975).

Trahan next contends that his conduct toward then Assistant Chief of Police Taylor and Mayor Garman did not constitute insubordination within the meaning of LSA-R.S. 33:2560 A(4) and departmental regulation 310.28. Although “insubordination” is not particularly defined in the aforesaid statute, such conduct is defined in the departmental regulation as “Failure or deliberate refusal of any member or employee to obey a lawful order or criticize instructions or orders being given by a superior officer .. . ”. Trahan avers that only the Mayor directly ordered him to refrain from speaking to the press regarding his complaints, and that, the Mayor is not plaintiff’s superior officer within the chain of command set forth in the police department manual. We pretermit any discussion or opinion regarding Trahan’s contention since, as previously stated, General Order 7101 specifically prohibits interviews with the news media by departmental personnel unless permission for such interview is obtained beforehand from the proper department authorities. By his own admission, plaintiff made statements to the press in clear contravention of the aforesaid general order. Thus, we conclude that, regardless of how one may characterize his actions, plaintiff unequivocally violated police department rules and regulations by speaking to the press without permission.

Plaintiff’s final contention is that his dismissal from the Jennings Police Department was not made in good faith and for cause as required by LSA-R.S. 33:2561, supra.

In Martin v. City of St. Martinville, 321 So.2d 532 (La.App. 3rd Cir. 1975), writ denied, 325 So.2d 273 (La.1976), our court stated as follows:

“LSA-R.S. 33:2561 provides, in substance, that the issue to be determined by the Police Civil Service Board or by the district court, in the event an appeal is taken to that court, is whether the decision of the appointing authority or of the board was “made in good faith for cause,” as set forth in the Fire and Police Civil Service Law for small municipalities (LSA-R.S. 33:2531-2568). We interpret that to mean that the action of the appointing authority, in order to be valid, must be both “in good faith” and “for cause.” The action of that authority must be set aside if it was not taken “for cause,” even though it may have been taken in good faith.” Our particular concern here is whether the suspension or dismissal of plaintiff Martin was made “for cause.” ”

We further noted in Martin, supra, that the applicable statutes fail to specifically define “for cause”. After considering the meaning of the aforesaid phrase in other legal contexts, we concluded as follows:

“We believe that in order for the dismissal or the disciplining of a tenured police officer to be valid, as being in good faith for cause under LSA-R.S. 33:2561, the dismissal or disciplinary action must be reasonably necessary for the continued efficiency of the service being rendered by the appointing authority. The evidence must show that the failure to dismiss or discipline the officer would be detrimental to the city or to the service which it is required to perform. The dismissal of such an officer cannot be said to have been made “in good faith,” if the appointing authority acted arbitrarily or capriciously, or if the action taken was the result of prejudice or political expediency. His dismissal cannot be said to have been “for cause,” if the evidence fails to show that it was necessary for the discipline and efficiency of the police department, or that it was needed to avoid some detriment to that department or to the city.”

In support of his contention that his dismissal- was not made in good faith, Tra-han argues that Assistant Chief Taylor recommended plaintiff’s dismissal to Chief of Police, Gilbert Touchet, in a letter dated May 30, 1980. Trahan avers that no disciplinary action was taken against him until after Taylor was promoted to Acting Chief of Police. In effect, Trahan contends that Taylor and Mayor Garman actively sought his dismissal even though there was no justifiable reason for the same. The record reflects that Taylor did recommend Tra-han’s dismissal to Chief Touchet on the date of the incident. Further, the record reveals that no action was taken on Taylor’s recommendation until June 13,1980 at which time Taylor had become Acting Chief. When questioned regarding the delay in taking disciplinary action, Mayor Garman stated that both he and Taylor did not want to take any action which might jeopardize the investigation ongoing at the time of the incident. Further, Garman stated that he wanted to allow Trahan time to apologize for the incident and perhaps, avoid disciplinary action altogether. The Mayor indicated that Trahan did not apologize for his conduct until after the decision to terminate his employment had been made and plaintiff notified regarding the same. We conclude, as did the trial court, that the delay in taking disciplinary action against the plaintiff does not support a finding that plaintiff’s dismissal by the appointed authority was made in bad faith.

Plaintiff further alleges that his dismissal was not made for cause. As stated, plaintiff’s conduct on the date at issue was clearly violative of several police department rules as well as provisions of the Civil Service Act. The record reflects that Tra-han acted discourteously and in a wantonly offensive manner towards a superior officer in front of other department personnel and the public in direct violation of department regulations 310.52, 275.10 and LSA-R.S. 33:2560 A(5). Further, Trahan admittedly made statements to the news media regarding police business in violation of department regulations 310.40 and General Order 7101. Such rules and regulations are designed to insure the orderly and efficient administration of the service being rendered by the employing authority. Clearly, the efficiency of the police department as well as its image in the community is affected whenever an officer makes unauthorized statements regarding police business to the media. In addition, plaintiff’s conduct in accusing a superior officer of interfering in a department investigation and covering up for another officer is detrimental to the morale and efficiency of command of such department. Thus, we find no evidence that the trial court manifestly erred in concluding that plaintiff’s dismissal was made in good faith and for cause. Canter v. Koehring Company, supra.

For the above and foregoing reasons, the judgment of the district court is affirmed. All costs of this appeal are assessed to plaintiff, Irvin Trahan.

AFFIRMED.

      . LSA-R.S. 33:2561 states:
      “Any regular employee in the classified service who feels that he has been discharged or subjected to any corrective or disciplinary action without just cause may, within fifteen days after the action, demand in writing a hearing and investigation by the board to determine the reasonableness of the action. The board shall grant the employee a hearing and investigation within thirty days after receipt of the written request.
      All such hearings and investigations conducted by the board pursuant to the provisions of this Part shall be open to the public. No hearing and investigation shall be held unless both the employee and the appointing authority have been advised at least ten days in advance thereof of the date, time and place therefor. If either the appointing authority or the employee fails to appear at the place and on the day and at the hour fixed for the hearing, the board may decide the issue involved on the basis of the evidence adduced and confined” to the question of whether the action taken against the employee was made in good faith for cause set forth in the provisions of this Part. Both the employee and the appointing authority shall be afforded an opportunity to appear before the board, either in person or with counsel, and present evidence to show that the action was or was not taken in good faith for cause as set forth in the provisions of this Part. The board shall have complete charge of any such hearing and investigation, and may conduct it in any manner it deems advisable, without prejudice to any person or party thereto. The procedure followed shall be informal and not necessarily bound by the legalistic rules of evidence. The board shall not be required to have the testimony taken and transcribed, but either the employee or the appointing authority may, at their own expense, make the necessary arrangements therefor. In such cases, the board may name any competent shorthand reporter as the official reporter. If the testimony is not taken or transcribed, then the board shall make a written finding of fact. After such investigation, if the evidence is conclusive, the board may affirm the action of the appointing authority. If it finds that the action was not taken in good faith for cause under the provisions of this Part, the board shall order the immediate reinstatement or re-employment of such person in the office, place, position or employment from which he was removed, suspended, demoted or discharged, which reinstatement shall, if the board so provides, be retroactive and entitle him to his regular pay from the time of removal, suspension, demotion, discharge or other disciplinary action. The board may modify the order of removal, suspension, demotion, discharge or other disciplinary action by directing a suspension without pay for a given period. The decision of the board, together with its written findings of fact, if required, shall be certified in writing to the appointing authority and shall be enforced forthwith by the appointing authority.
      Any employee under classified service and any appointing authority may appeal from any decision of the board or from any action taken by the board under the provisions of the Part which is prejudicial to the employee or appointing authority. This appeal shall be taken by serving the board, within thirty days after entry of its decision, a written notice of appeal, stating the grounds thereof and demanding that a certified transcript of the record, or written findings of fact, and all papers on file in the office of the board affecting or relating to such decisions, be filed with the designated court. The board shall, within ten days after the filing of the notice of appeal, make, certify and file the complete transcript with the designated court and that court thereupon shall proceed to hear and determine the appeal in a summary manner. This hearing shall be confined to the determination of whether the decision made by the board was made in good faith for cause under the provisions of this Part. No appeal to the court shall be taken except upon these grounds.”

      . The cited statutes are applicable to municipalities, such as Jennings, La., whose population is less than 13,000.

      . At the time of the hearing, Taylor was serving as Acting Chief of Police.


source: Caselaw Access Project

author: STOKER, Judge. GUIDRY, Judge, CULPEPPER, Judge,

license: Public Domain

text:
    Charles A. DORSEY, et al., Plaintiffs-Appellants, v. IBERIA PARISH POLICE JURY, et al., Defendants-Appellees.
    No. 8704.
    Court of Appeal of Louisiana, Third Circuit.
    March 10, 1982.
    Writ Denied April 30, 1982.

      Lynn A. DeRouen, New Iberia, for plaintiffs-appellants.
    Roy, Forrest & Lopresto, Alex A. Lopres-to, III, New Iberia, for defendants-appel-lees.
    Before CULPEPPER, GUIDRY and STOKER, JJ.
   STOKER, Judge.

This is action by eight individuals who are owners and developers of Belle Terre Subdivision located in Iberia Parish, Louisiana. Plaintiffs sued Sewerage District No. 1 of Iberia Parish, Louisiana, (Sewerage District) for a monetary judgment in the amount of $67,762.96 and also for declaratory relief. The Iberia Parish Police Jury was also a defendant but insofar as we can determine is not before us on appeal.

Plaintiffs’ petition sets forth an extensive history and several complaints. In essence we may summarize the complaint as an attack on a local or special assessment tax levied by the Sewerage District on lots in Belle Terre Subdivision, a claim for monetary reimbursement, and a demand for a declaratory judgment decreeing that certain temporary treatment plant facilities should eventually become plaintiffs’ property. The court dismissed plaintiffs’ monetary demand on exceptions and held that the demand for declaratory relief did not present a justicable controversy. Plaintiffs’ demands were rejected by the trial court and plaintiffs now appeal.

FACTS

Plaintiffs joined with six other subdivision owners to participate in a special assessment program by the Sewerage District to serve all the areas. The Sewerage District adopted a resolution on May 31, 1979, to authorize construction of a sewerage system in the several subdivisions to be financed by an assessment of the property in the subdivisions. On August 9, 1979, the Sewerage District accepted a bid for construction of the system through a resolution. The resolution provided for payment of the cost through the levy and collection of local or special assessment on each lot or parcel of ground to be served in the subdivision and for the issuance and sale of sewerage certificates. On September 13, 1979, the Sewerage District levied a special assessment tax on each lot in the subdivisions. The special assessment ordinance was published in the official journal of Iberia Parish on September 19, 1979. Plaintiffs filed their suit on October 28, 1980.

The monetary recovery portion of plaintiff-appellants’ demand totaling $67,762.96 covers three separate items of damage. First, petitioners allege they were informed that their portion of the projected costs of the sewerage system pertaining to the mechanical treatment plants would be $46,-800.00 but they were assessed for $64,-759.24. In round figures this difference amounts to $17,960.00 (the actual difference being $17,959.24). Second, petitioners allege that they suggested a scheme for using gravity flow to reduce costs for the system serving their subdivision. They further allege that the Sewerage District rejected this suggestion, resulting in a cost of $24,-802.62 over what it would have cost to follow their suggestion. Finally, petitioners allege that after levying an assessment not based on petitioners’ gravity flow plan, the District’s plan was abandoned and petitioners’ plan was adopted. Petitioners contend they were thus assessed for $24,802.62 more than they should have been. Petitioners demand reimbursement of this amount. Thirdly, petitioners allege they are entitled to $25,000.00 in damages for mental anxiety and distress caused them by the defendants’ actions. The three items of damages may be listed as follows:

Recovery of erroneous and improper assessment $17,960.00
Recovery of savings in costs in using gravity flow system 24,802.96
Recovery for mental anguish and distress 25,000.00
$67,762.96

The defendants filed exceptions of prescription, prematurity, no cause of action and a plea of estoppel.

VALIDITY OF THE SEWERAGE SYSTEM ACTION

Plaintiffs articulated extensive complaints in their petition setting forth alleged improper modes for arriving at the assessments. However, plaintiffs do not charge that the Sewerage District failed to follow statutory requirements for levying of the special assessment. The statutory provisions for establishing sewerage districts and their powers, insofar as they are pertinent to this case, are contained in LSA-R.S. 33:3981 through 3996. Plaintiff-appellants concede in their brief that their petition was not timely filed under LSA-R.S. 33:3994 which provides as follows:

§ 3994. Prescriptive period to question validity of proceedings
“No contest or proceeding to question the validity or legality of any resolutions or ordinances adopted or proceedings had under the provisions of this Sub-part shall be begun in any court by any person for any cause whatsoever, after the expiration of thirty days from the date when the resolution, ordinance or proceeding was published, and after such time the regularity of such resolution, ordinance or proceeding shall be conclusively presumed. If the validity of any certificates issued under the provisions of this Sub-part is not raised within thirty days from date of publication of the resolution or ordinance issuing said certificates and fixing their terms, the authority to issue said certificates, the legality thereof and of the local or special assessments necessary to pay the same shall be conclusively presumed and no court shall thereafter have authority to inquire into such matters. Added Acts 1950, No. 462, § 14, as amended Acts 1958, No. 395, § 8.”

Plaintiff-appellants concede that since they did not file their action within the thirty days provided by Section 3994 quoted above, they may not attack the validity or legality of the resolutions and ordinances of the Sewerage District which resulted in the levy of the special assessment on their property. The trial court concluded that the defendants’ exception of prescription was good under the above quoted Section 3994 of Title 33 of the Louisiana Revised Statutes and under Charles v. Sewerage District No. 2 of St. Charles Parish, 256 La. 953, 240 So.2d 719 (1970). This holding appears to us to be correct, and, as noted, appellants do not complain of this ruling. Instead, appellants shift their attack to other grounds.

DO APPELLANTS HAVE RIGHTS UNDER LSA-R.S. 47:2110?

Although they make the concession as to prescription or peremption, appellants assert that their petition states a cause of action under LSA-R.S. 47:2110. This statute prohibits courts of this state from restraining the collection of any tax by the state or any of its political subdivisions. This statute does provide for some relief, however, as it makes provision for payment of the tax under protest to be followed by a suit for recovery of the tax paid. Appellants urge in their brief that their petition is broad enough to fit under this statute but that if their suit does not set forth an action for recovery of any sum paid by them under the assessment in question, they should be allowed to amend their petition to allege such an action. Appellants also raise constitutional questions which we do not reach.

The provisions of LSA-R.S. 47:2110 are as follows:

§ 2110. Suits to recover taxes paid under protest
“A. No court of this state shall issue any process whatsoever to restrain the collection of an ad valorem tax imposed by the state, or by any political subdivision thereof, under authority granted to it by the legislature or by the constitution. Any person resisting the payment of any amount of tax found due, or the enforcement of any provision of the tax laws in relation thereto, shall pay the amount found due to the officer designated by law for the collection of such tax and shall give the officer notice at the time of payment of his intention to file suit for the recovery of such tax. Upon receipt of such notice, the amount so paid shall be segregated and held by the officer for a period of thirty days. If suit is filed within such time for the recovery of the tax, such amount so segregated shall be further held pending the outcome of the suit. If the taxpayer prevails, the officer shall refund the amount to the taxpayer with interest at the rate of two per cen-tum per annum for the period from the date such funds were received by the officer to the date of such refund.
“B. The right to sue for recovery of a tax paid under protest as provided herein shall afford a legal remedy and right of action in any state or federal court having jurisdiction of the parties and subject matter for a full and complete adjudication of any and all questions arising in the enforcement of such right respecting the legality of any tax accrued or accruing or the method of enforcement thereof. In any such suit, service of process upon the officer designated by law for the collection of the tax shall be sufficient service, and he shall be the sole necessary and proper party defendant in any such suit.
“C. The right to sue for recovery of a tax paid under protest as provided herein shall afford a legal remedy and right of action at law in the state .or federal courts where any tax or the collection thereof is claimed to be an unlawful burden upon interstate commerce, in violation of any act of the Congress of the United States, the Constitution of the United States, or the constitution of the state, or in the federal courts in any case where jurisdiction is vested in any of the courts of the United States. Upon request of a taxpayer and upon proper showing by such taxpayer that the principle of law involved in an additional assessment is already pending before the courts for judicial determination, the taxpayer, upon agreement to abide by the pending decision of the courts, may pay the additional assessment under protest but need not file an additional suit. In such cases the tax so paid under protest shall be segregated and held by the officer designated by law for the collection of such tax until the question of law involved has been determined by the courts and shall then be disposed of as herein provided.
“D. The right of action provided in this section shall be in addition to any rights elsewhere provided in this Sub-title, including R.S. 47:1998, affording taxpayers an opportunity to test the legality or correctness of their assessments or ad valo-rem taxes paid under protest before the courts of state.
“E. Any taxpayer in the state who has paid his taxes under protest as provided in Subsection A above, and who has filed suit under the provisions of R.S. 47:1856, R.S. 47:1857, or R.S. 47:1998, shall cause to issue in said suit notice to the officer or officers designated for the collection of said taxes in the parish or parishes where the property is located, and such notice shall be sufficient to cause said officer or officers to further hold said amount segregated pending the outcome of the suit. Amended by Acts 1970, No. 375, § 1; Acts 1980, No. 601, § 2, eff. July 23, 1980.”

Plaintiff-appellants rely on Charles v. Sewerage District No. 2 of St. Charles Parish, supra, as holding that, despite peremption of their right to attack the validity and legality vel non on the ordinance in question, they may nevertheless proceed under LSA-R.S. 47:2110 in an action for recovery of any assessment paid under protest although the basis for the recovery is a claim of invalidity or illegality of the assessment ordinance. Irrespective of the merit of this position and what Charles may hold in this regard, a decision we do not reach, we are of the opinion that the petition filed by plaintiff-appellants fails to state a cause of action for the recovery of a money judgment.

DO APPELLANTS HAVE A CAUSE OF ACTION FOR REFUND OF $17,960 ALLEGEDLY IMPROPERLY AND ERRONEOUSLY ASSESSED TO THEM?

In reading those allegations of the petition on which plaintiff-appellants base their claim for recovery of $17,960.00, we are of the opinion that the allegations fail to set forth sufficient facts on which a timely filed attack under LSA-R.S. 33:3994 could be made, much less a claim for recovery on the same grounds. Although the allegations are extensive and detailed, they simply do not charge the Sewerage District with any failure to comply with any legal requirements for enactment of the assessment ordinance.

The record in the case before us indicates that plaintiff-appellants were fully aware at the time the sewerage assessment ordinance was adopted and published of what it contained. They were also aware of the alteration in the provisions of the ordinance which affected the amount of the assessment relative to appellants’ property so that the ordinance did not reflect what appellants had previously understood would be the amount for which they would be assessed. The pertinent allegations on this particular issue are contained in paragraphs I through XIII. In essence all plaintiff-appellants allege in these paragraphs is that the final assessment pertaining to the mechanical treatment plants was altered to correct a clerical transpositional error. There is no allegation that the Sewerage District failed in any way to comply with the statutory requirements for the assessment. No allegation is made that the assessment is unfair or inequitable.

In our opinion the decision made by the Sewerage District was a legislative decision within its discretion as a political subdivision not subject to judicial review. The Supreme Court recently made pronouncements on this general subject in Landry v. Parish of East Baton Rouge, 352 So.2d 656 (La.1977). The facts were not closely analogous to those of this case but the pronouncement we refer to is no less pertinent. The Landry case involved a street pavement improvement statute. The petitioners in that suit sought to have their properties stricken from an ordinance assessing their properties on a front foot basis to defray the cost of the improvements. One of the property owner-plaintiff’s complaints was that the parish governing authority had not complied with a statutory requirement that it “make a determination as to whether each lot or parcel of real estate to be assessed will be benefited to an amount not less than the proposed local or special assessment.” The Supreme Court determined that the governing authority, the Parish Council, had complied with the statute. The Supreme Court then concluded that it could not consider the correctness or merits of the determination made. It held it could not review this question as it was a legislative determination not subject to judicial review. The Supreme Court’s comments were as follows:

“The merit of the council’s benefits determination is, of course, a different matter. Was the council correct in its determination? Was that determination the exercise of a legislative or a judicial function? And is that determination reviewable in court?
“We believe that the benefits determination, statutorily required of the municipal legislative body, is a legislative act, with admittedly quasi-judicial overtones, and that while it is not totally unreviewa-ble, courts may not upset the determination absent such manifest and palpable abuse of power such that excess of the limits of legislative discretion is evident.
“As was noted by the First Circuit Court of Appeal in Olsen v. City of Baton Rouge, 247 So.2d 889 (La.1971), writs refused 259 La. 755, 252 So.2d 454, municipal legislative acts are presumed to be valid and the burden rests with the party who asserts the contrary. A court may not interfere with this legislative function unless it is clearly shown that the legislative body’s action is so clearly arbitrary and capricious as to be unreasonable. Nor is the municipal legislative body constrained (by the provisions of R.S. 33:3301 et seq. or otherwise) by the procedural rules relative to evidence and the like normally attendant to judicial proceedings. In the case at hand, while the evidence presented in the district court may arguably have been short of a preponderance that plaintiffs’ properties would be benefited to an amount not less than the proposed assessments, we are unable to conclude that the Parish Council for the Parish of East Baton Rouge exceeded its legislative discretion in determining that the abutting properties were to be benefited in the requisite amount.”

See also Pleasant v. City of Shreveport, 179 So.2d 911 (La.App.2nd Cir. 1965).

As we noted above, the petition does not allege that the assessment levied on plaintiff-appellants’ property is unfair or inequitable. The allegations do not suggest that the assessment is arbitrary or capricious so as to be unreasonable. Therefore, no constitutional questions are raised by the pleading.- We realize that plaintiff-appellants do not seek to avoid liability for any tax assessment at all; they merely want to pay a lesser amount which they contend was what they were given to understand would be their assessment share. In order to bring them within what they agree they should pay, they ask for a money judgment against the Sewerage District for $17,-690.00.

For the reasons we have given, we hold that plaintiff-appellants have failed to state a cause of action for a money judgment in this amount.

APPELLANTS’ CLAIM FOR $24,802.96

What we have said immediately above relates only to the portion of the monetary demand for $17,960.00 allegedly resulting from an erroneous and improper assessment. As to the other two items we think the petition fails to state causes of action. With reference to the savings of $24,802.96 alleged to have resulted from switching to the gravity flow system, we cannot think of any basis on which appellants as private owners of Belle Terre Subdivision are entitled to recover any such sum. The Sewerage District is a political subdivision of the state. It may well be that appellants’ interests have not received proper treatment, but if any such savings actually result or resulted, we know of no basis on which the savings may be passed on to appellants. Accordingly, we hold appellants have no cause of action to recover the $24,802.96 portion of their monetary demand and this portion of the demand should be dismissed.

APPELLANTS’ CLAIM FOR $25,000 IN DAMAGES FOR MENTAL ANGUISH

We likewise find no cause of action to appellants’ demand for $25,000.00 in damages for mental anxiety and distress caused them by the Sewerage District. Without necessarily doubting that appellants have experienced mental anxiety and distress, we know of no right of recovery from a political body or unit of government of monetary damages resulting from frustration suffered by an individual caused by action of the governmental agency. Hence, this portion of plaintiff-appellants’ demand for recovery should also be dismissed.

ARE PLAINTIFF-APPELLANTS ENTITLED TO DECLARATORY RELIEF?

The trial court stated the facts relative to the declaratory relief demanded by appellants as follows:

“The third claim involved herein arises from the future ownership of the temporarily constructed small sewerage disposal plant for Belle Terre Subdivision. Plaintiffs seek a declaratory judgment awarding plaintiffs ownership of these facilities at the time of the tie-in to the permanent facilities. This plant was constructed to take care of temporary sewerage needs pending final connection to the permanent collection lines by the sewerage district which are to be constructed several years hence. At the present time, these lines have not yet been constructed nor have they been definitely planned at the present time. Plans are at the present time being considered by engineers. Petitioners’ claims in this regard arise out of oral representations and agreements allegedly between petitioners and agents or representatives of the defendant, according to witness, Dorsey. Petitioners allege that representatives of the Sewerage District assured them that whenever in the future the subdivision is connected to the permanent disposal lines, that defendant, Sewerage District, would give and grant unto the petitioners, as owners of Belle Terre Subdivision, the sewerage treatment facilities and plant that were constructed by the sewerage district for temporary handling of sewerage in the subdivision. The Court would point out that all of these facilities were constructed and are owned by the Sewerage District.
“To this latter claim of the petitioners, the Sewerage District filed an Exception of Prematurity and No Cause of Action.”

The trial court concluded that in order to grant the declaratory relief demanded it would be necessary to assume that all construction would go according to plan. Also in view of the possibility of unforeseen contingencies and developments which might occur, the court further concluded that it should not attempt to decide the question of ownership of the temporary facilities prior to fulfillment of all conditions. The trial court held that the petition did not present a justiciable controversy as contemplated by LSA-C.C.P. arts. 1871-1883. We are of the opinion that the trial court was correct. To decide the ownership question at this time will serve no present purpose, would require the assumption of facts and events which may not actually come to pass, and would not take into account events which may come to pass in the future which might be pertinent to an eventual decision of the question of ownership.

CONCLUSION

The trial court concluded in its reasons for judgment that defendants’ exceptions of prescription and no cause of action should be sustained. As we interpret the trial court’s reasons for judgment the three claims for money judgment were decided on the exception of prescription and the demand for declaratory relief was decided on the exception of no cause of action. We agree and affirm the dismissal. As noted above we are of the opinion that the money demands should also be dismissed for failure to state a cause of action.

All costs of the proceeds in the district court and before this court on appeal are assessed to plaintiff-appellants.

AFFIRMED.

GUIDRY and CULPEPPER, JJ., concur and assign reasons.

GUIDRY, Judge,

concurring.

I agree with the opinion author that plaintiff-appellants are not entitled to declaratory relief. I would not reach or consider the merits of plaintiffs’ other claims as, in my view, such claims are clearly prescribed under the provisions of R.S. 33:3994.

CULPEPPER, Judge,

concurring.

I concur except for the reason for denying the $17,960 item. I would reach a decision that Charles v. Sewerage District # 2 of St. Charles Parish, 256 La. 953, 240 So.2d 719 (1970) does not hold that plaintiffs in the present case could allow the 30 days peremption of LSA-R.S. 33:3994 to elapse and then pay their assessment under protest, pursuant to LSA-R.S. 47:2110 and file suit to reduce their assessment by $17,960. In effect, this is an attack on the validity of the assessment ordinance and is prescribed.

As I understand the Charles case and its companion case, Caillouet v. Sewerage District # 2 of St. Charles Parish, the court simply held that since the validity of the assessment ordinance was already at issue in the Caillouet case, which had been filed within the 30-day peremptive period, the Charles group, who did not file suit within the 30 days, could pay their assessment under protest and seek a refund in the event the assessment ordinance was held invalid in the Caillouet case. I do not read the Charles case as holding that even if there had been no timely suit by the Cail-louet group, the Charles group could nevertheless have paid their assessment under protest and attacked the validity of the assessment ordinance.

Thus, I would distinguish the Charles case from the present matter, since here there is no timely filed suit attacking the validity of the assessment ordinance.

      . The plaintiffs are Charles A. Dorsey, Sam A. Broussard, Albert A. Woodburn, Dr. Larry J. Hebert, Staples J. McClendon and John A. Hill.

      . The Iberia Parish Police Jury filed exceptions along with the Sewerage District. The trial court’s reasons for judgment appear to have ruled that the Police Jury should be dismissed on an exception but the judgment in the record dismissing plaintiffs’ action lists the Sewerage District only.

      . Plaintiff-appellants’ petition does not in so many words attack the special assessment tax. The prayer sets forth only the money demand and the demand for declaratory relief. However, the trial court treated the action at the trial of the exceptions as including an attack on the assessment and the parties agreed that such was the case. See Tr. 116. In appellants’ brief in the statement of the case the following statement is made:
      “They [plaintiff-appellants] filed suit attacking a special assessment tax imposed on the lots in Belle Terre Subdivision by Sewerage District Number One to pay for a sewerage system in the subdivision. Appellants further have claimed that they are owed reimbursement from the defendants as a result of the non-use by defendants of monies assessed in the sewerage program in question for extensions to the main collection lines servicing Belle Terre Subdivision. Finally, appellants claimed that they are entitled to a judicial determination of their ownership rights and interests regarding the treatment plant installed in Belle Terre Subdivision.”

      “1 Accord, see Fourmy v. Town of Franklin, 126 La. 151, 52 So. 249 (1910) quoting from Kelly v. Chadwick, 104 La. 719, 29 So. 295 (1901) as follows:
      ‘With the wisdom or unwisdom of special assessments, when ordered in cases in which they are admissible, the courts have no concern, unless there is plainly and manifestly such an abuse of power as takes the case beyond the just limits of legislative discretion.’ ”


author: DOMENGEAUX, Judge.

text:
    Reven L. FONTENOT, Plaintiff, v. MEMPHIS FARMS, INC., et al., Defendants-Third Party Plaintiffs and Appellants, v. John Ab BOATNER, Third Party Defendant and Appellee.
    No. 8711.
    Court of Appeal of Louisiana, Third Circuit.
    March 10, 1982.
    Lauve & Hill, Lewis 0. Lauve, Alexandria, for defendants-third party plaintiffs and appellants.
    Franklin, Moore & Walsh, Charles A. O’Brien, III, Baton Rouge, for third party defendant and appellee.
    Boatner & Luke, John A. Boatner, Jr., Bunkie, for plaintiff.
    Before DOMENGEAUX, SWIFT and LABORDE, JJ.
   DOMENGEAUX, Judge.

This is an appeal brought by defendants-third party plaintiffs, J. R. Young and Memphis Farms, Inc., hereinafter collectively referred to as Young, from a judgment of the Twelfth Judicial District Court, Avo-yelles Parish, Louisiana, granting a motion for summary judgment on behalf of third party defendant, John Ab Boatner (Boat-ner).

In the main demand of this lawsuit plaintiff, Reven L. Fontenot (Fontenot), as lessee, seeks damages against Young, as lessor, for failure of Young to perform certain acts in a written lease of agricultural land. Of primary import was Young’s obligation under the terms of the lease to furnish two water wells for the irrigation of a rice crop which Fontenot was to plant on the premises. By way of third party demand, Young alleges that his failure to perform under the lease was due to the actions of Boatner, and accordingly, if Young should be cast in judgment on the main demand, then Boat-ner should be cast in judgment to him for a like amount.

Other than the pleadings, the only evidence introduced in this motion for summary judgment is the deposition of Young, collectively from which, we ascertain the facts of this case to be as follows:

In May of 1979, Young was approached by Fontenot relative to leasing the land owned by Memphis Farms, Inc. for the purpose of planting rice for that year. As a short crop was anticipated, Young agreed to accept thirty-five percent of the crop as consideration for the lease. One of the terms agreed upon was that Young would put down two water wells on the property to supply water for the rice production.

Before reducing their agreement to writing, Young approached the Bunkie Bank in Bunkie, Louisiana, for a loan which would net him in the neighborhood of $75,000.00, this being his estimated cost of digging and equipping the wells he was to furnish under the terms of the lease. As part of the collateral for its granting the loan, the Bunkie Bank was going to require a pledge of the crop Young was to receive from the lease of the land.

While the bank was processing his loan Young and Fontenot approached Boatner, who was Fontenot’s attorney, to prepare a written lease. Boatner was also attorney for the Bunkie Bank and a member of its Board of Directors.

Following this initial meeting between Fontenot, Young, and Boatner, a lease was prepared by Boatner which supposedly contained the full agreement between the parties. This lease was given to Young for review. Subsequently, Fontenot and Young agreed to have Boatner make some changes in the lease, and several days later, Young went to Boatner’s office to sign the lease in its final form.

As is shown by a copy of the executed lease which is in the record, that lease and the prior lease given Mr. Young for review are not identical. The new lease reflects the parties’ intention to change the size of the water wells. Additionally, Boatner added to the executed lease a provision that lessee is to instruct the drier or mill to issue checks, in payment of lessor’s thirty-five percent rice ownership payable to lessor and Northwestern National Life Insurance Company in accordance with a previous assignment and mortgage executed by Young. Boatner likewise deleted a provision which specifically gave Young the right to pledge his share of the crop.

After the execution of the lease, Young was advised by the Bunkie Bank that his loan had been disapproved. The fact that his lease was changed in a manner considered significant by him, and the fact that the loan was disapproved, led Young to conclude that he did not have the legal right to pledge his crop. It was not until many months later, in fact not until October, 1979, that Young learned that he did have the right to pledge his crop under the terms of his mortgage, and did in fact pledge his crop for a loan to pay the annual installment due on his mortgage with Northwestern National Life Insurance Company.

Fontenot filed suit against Young for damages arising out of Young’s breach of the lease agreement between them. Young in turn third-partied Boatner claiming that due to Boatner’s misrepresentations he (Young) was unable to secure financing necessary to comply with his obligations under the lease. Boatner then moved for summary judgment which was sustained by the trial judge. This appeal followed.

Young, in his third party petition against Boatner, contends, among other things, that:

(1) Boatner was aware that he (Young) had applied to the Bank of Bunkie for a loan to finance the obligations under the lease with Fontenot, and Boatner expressed confidence to him that the loan would be approved;

(2) Subsequent to the execution of the lease, Boatner told Young that he (Boatner) advised the Bank of Bunkie to refuse the loan because the bank could not obtain a pledge on the lessor’s share of the crop, inasmuch as it was already pledged to Northwestern National Life;

(3) He relied on Boatner’s representation concerning the inability to pledge his share of the crop, and therefore, did not immediately seek financing from additional sources;

(4) He later learned that Boatner’s representations were erroneous, and because of these foregoing misrepresentations and changes in the lease contract, he (Young) was unable to acquire the capital needed to dig, maintain and fuel the wells he had agreed to furnish under the terms of the lease.

A motion for summary judgment should be granted if there is no genuine issue of material fact and a mover is entitled to judgment as a matter of law. La.C.C.P. Article 966. It is well settled that plaintiff, when confronted with a motion for summary judgment, may not rest on the mere allegations of his pleadings, but his response by affidavits or other receivable evidence, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be rendered against him. La.C.C.P. Article 967; Welch v. Daigrepont, 378 So.2d 607 (La.App. 3rd Cir. 1979); Haley v. City of Opelousas, 347 So.2d 903 (La. App. 3rd Cir. 1977); Searbrock v. Continental Insurance Company, 254 So.2d 501 (La.App. 3rd Cir. 1971).

In support of his motion for summary judgment Boatner introduced the deposition of Young. In his deposition Young admits that Boatner never guaranteed that the loan would be approved, or that Boat-ner rendered any opinion one way or another. Young further admits in his deposition that the allegation that Boatner told him that he (Boatner) advised the Bunkie Bank to refuse the loan, simply is not true. When asked if Boatner made any representations as to whether or not Young could pledge his portion of the crop, Young confessed that the matter wasn’t discussed.

It appears that Young’s misgivings concerning his inability to pledge his share of the rice crop were based upon his own conclusions or possibly those of a representative of the Bank of Bunkie. In any event, Young admits that he has no personal knowledge that Boatner made any such representations to anyone.

In another part of Young’s deposition he acknowledged the fact that at no time was Boatner representing him or was he (Young) ever under that impression. Finally, Young admits that his failure to obtain a loan caused him no harm whatsoever, in that he supplied water as needed from the bayou and in greater quantities than would have been possible through the pump. Young was also able to finance ninety percent (90%) of his other obligations under the lease through alternate financing.

Young, on the other hand, failed to file any counter affidavits or other receivable evidence in opposition to Boatner’s motion for summary judgment. Young chose instead to rely on his deposition only, the context of which we have discussed above. Under the facts as presented, the trial judge thus was justified in concluding that there was no genuine issue as to any material fact. On the basis of the uncontradict-ed evidence produced by the mover, the trial judge correctly rendered a summary judgment dismissing Boatner as third party defendant. See Welch, Hailey, and Scar-brock, supra.

Por the above and foregoing reasons the judgment of the trial court is affirmed. The costs of this appeal are to be taxed against defendants-third party plaintiffs-appellants.

AFFIRMED.

      . Memphis Farms is a corporation with Young as its sole shareholder.

      . Additionally, Young alleges that the bank was going to loan him $50,000.00 to pay off a mortgage on his home and some equipment so that it could get a first mortgage on those items, and have a second mortgage on the farm.

      . Northwestern National Life Insurance Company is the company which held a first mortgage on the farm.


author: STOKER, Judge.

text:
    Charles COCO, III, Plaintiff-Appellee, v. RICHLAND GENERAL CONTRACTORS, INC., et al., Defendants-Appellants.
    No. 8717.
    Court of Appeal of Louisiana, Third Circuit.
    March 10, 1982.
    Writ Denied April 30, 1982.

      Trimble, Randow, Percy, Smith, Wilson & Foote, James T. Trimble, Jr., Alexandria, for defendants-appellants.
    Darrel D. Ryland, Marksville, for plaintiff-appellee.
    Gist, Methvin, Hughes & Munsterman, Dorwan G. Vizzier, Alexandria, for interve-nor-appellee.
    Before CULPEPPER, GUIDRY and STOKER, JJ.
   STOKER, Judge.

This is a suit for the recovery of damages for personal injuries sustained by plaintiff-appellee, Charles Coco, III, in an automobile collision. Defendants-appellants in this suit are David J. Johnson, the driver of the truck which caused the accident; Richland General Contractors, Inc., the owner of the truck and Johnson’s employer; and United States Fire Insurance Company and Aetna Insurance Company, the insurers of the Richland truck. Hartford Accident and Indemnity Company, the compensation carrier of plaintiff’s employer, intervened to recover worker’s compensation benefits it paid to plaintiff in the amount of $3,167.18 consisting of $1,691.42 in weekly payments and $1,484.76 in medical expenses.

The only issue before this court is whether the amount of damages awarded by the trial court is an abuse of its discretion. The defendants admitted liability at trial and the case was tried only to determine the extent of plaintiff’s damages. The trial court awarded $170,000.00 to plaintiff and the defendants appeal that award.

On October 25, 1979, plaintiff was the guest passenger in an automobile owned by Entex, plaintiff’s employer, when the car was struck by the Richland General Contractor’s truck on Louisiana Highway 1 near Marksville in Avoyelles Parish. The driver of the Entex car was killed in that collision. Plaintiff was taken to the emergency room of Marksville General Hospital where he was treated by Dr. Richard Michel and released on the same day. Dr. Michel described plaintiff’s injuries at that time as consisting of multiple abrasions of the face, right buttocks, and both legs and arms, including hematoma and abrasion of the left arm and elbow. Plaintiff complained of pain in his left arm and elbow at the hospital. When Dr. Michel examined plaintiff three days after the accident, plaintiff had improved, but he complained of pain in the lower left rib cage, back ache, and tenderness over the kidney area. Plaintiff’s general condition continued to improve, but he still complained of pain in his back and left arm as of July 8, 1981, the time of the trial. Plaintiff was still under Dr. Michel’s care at that time.

Numerous witnesses, including co-workers, friends, and family of the plaintiff, gave testimony with notably similar details of the change in plaintiff’s personality from being outgoing, sociable, and energetic before the accident to being withdrawn, moody, and nervous after the accident.

The trial judge made the following awards for damages to the plaintiff:

1. Past Pain and Suffering $ 40,000.00
2. Future Pain and Suffering 40,000.00
3. Residual Disability Limiting Career Advancement 40,000.00
4. Personality Change 50,000.00
TOTAL $170,000.00

Defendants alleged the following errors in the trial court’s judgment:

“I. The Trial Court erred in granting $50,000.00 for plaintiff’s ‘personality change’ despite the fact that:
(a) There was no competent evidence to show a personality change in fact;
(b) There was absolutely no evidence showing any causal connection of any personality change to the accident in question.
“II. The Trial Court erred in awarding $40,000.00 for ‘residual disability limiting career advancement’ when there was no evidence showing any such disability.
“HI. The Trial Court erred in awarding $80,000.00 for past and future pain and suffering when there was no evidence to support such an award.”

We will address these arguments in the order presented.

PLAINTIFF’S ALLEGED PERSONALITY CHANGE

The trial court segregated from pain and suffering, past and future, a separate item of damages which it designated as damages for “personality change”. Aside from pure physical disability and pain, plaintiff showed that he experienced concomitant results in the form of depression, moroseness, frustration and fear or anxiety that he will suffer pain on engaging in certain activities and recreational pursuits and general disappointment at the condition in which he finds himself. In addition he experiences certain side affects such as sleepiness from taking medication to reduce his pain. We think the trial court erred in treating these residuals as an item of damages separate and distinct from pain and suffering. This is not to say that plaintiff should not be compensated for what he has, and may in the future suffer, in the form of these residuals. Our courts always have considered such residuals in establishing the quantum to be awarded for pain and suffering.

As a result of the trial court’s error in this regard, counsel for both plaintiff and defendants have devoted considerable argument to the so-called issue of personality change. Defendants refer to certain cases in our jurisprudence dealing with traumatic neurosis or conversion neurosis. This condition as we understand it is not based on physical or organic causes. Trauma of one kind or another may trigger the condition. A traumatic or conversion neurosis is one in which the latent anxieties or tension or insecurities in a person’s mental life are converted into physical symptoms of pain, suffering and disability as real as if physically caused. Humphries v. Delta Fire & Casualty Company, 116 So.2d 130 (La.App. 1st Cir. 1959).

Traumatic neurosis may produce emotional disturbance including such personality manifestations as depression and discouragement and may convert a “jolly and energetic person” into a nervous, low spirited, and hopeless individual subject to crying spells. Alien v. Indemnity Insurance Co. of North America, 137 So.2d 110 (La. App. 3rd Cir. 1962). However, it is well established that such a condition is a mental or psychic disorder which requires medical expertise in the psychiatric field to establish. In this case the only physician who even touched on plaintiff’s post accident attitude and outlook was his treating physician, Dr. Ray Richard Michel, an expert in family medicine and surgery. Aside from the fact that Dr. Michel did not attempt to present himself as an expert in the field of psychiatry, we do not believe his testimony was meant by him to suggest that plaintiff was suffering from traumatic or conversion neurosis.

In approaching the subject of traumatic or conversion neurosis, our courts have adopted the rule that “since the symptoms of traumatic neurosis are vague, nebulous, and almost entirely subjective, the courts should exercise great caution in allowing recovery for such a condition.” Devillier v. Traders & General Insurance Company, supra, Belson v. Subsurface Completion Service, supra, Jackson v. International Paper Company, 163 So.2d 362 (La.App. 3rd Cir. 1964), writ refused, 246 La. 591, 165 So.2d 484 (1964), Vezinat v. Marix, supra, and Allen v. Indemnity Insurance Company of North America, supra.

It is our conclusion that plaintiff did not establish that he suffered from traumatic neurosis.

Actually, plaintiff’s counsel does not argue that plaintiff suffers from traumatic neurosis as such. Counsel relies almost exclusively on a case from this circuit affirming a trial court decision which singled out certain sequelae from a brain injury which had produced what the trial court called a “complete personality change.” Litton v. Home Indemnity Co., 391 So.2d 541 (La. App. 3rd Cir. 1980). The sum of $60,000.00 was awarded in that case.

In Litton the plaintiff recovered from the physical injuries. His injury in a motorcycle accident included cerebral contusion and apparent skull fracture. He quickly recovered. Soon, however, plaintiff displayed what the trial court referred to as personality changes, mental and emotional instability, inability to follow simple instructions, memory loss, and the inability to perform any but simple tasks. Two clinical psychologists tested plaintiff. They concluded plaintiff suffered organic brain damage, that he experienced mild to moderate depression, anxiety, impulsiveness and withdrawal; they also testified that the brain damage would be apt to cause some degree of personality change and memory deficit. Lay testimony was elicited to show plaintiff Litton’s pre-accident personality and how it compared with his post-accident personality-

In Litton the trial court described plaintiff’s changed personality in these words:

“Whereas, the plaintiff, previous to the accident had been a healthy, energetic, outgoing and warm individual, at the trial of this case, his condition and personality was described as moody, depressed, withdrawn, irritable and incapable of doing the quality construction work that he was doing previous to the injury. The Court finds here there is great evidence of mental and emotional disability. The plaintiff cannot now follow simple instructions; he has loss of memory, and is not able to perform carpentry work, but acts now more as a helper and is assigned simpler tasks because of his incapability of doing the jobs required of highly trained and skilled carpenters.”

The trial court’s award of $60,000.00 in the Litton case, affirmed by this court, was clearly based on more than personality changes alone. In any event, we consider the condition of Litton, based on organic brain damage, to be entirely distinguishable from the case of plaintiff-appellee, Charles Coco, III, in this case. Coco is complaining of conditions based neither on traumatic neurosis or brain damage. Although plaintiff has not established any symptoms or damages of a traumatic neurotic nature or of a nature resulting from brain damages, he should be compensated for all his residuals in the form of pain and suffering.

At this point it is appropriate to consider what plaintiff’s injuries and residuals are. Plaintiff established by a preponderance of the evidence that his depression and withdrawal resulted from the combination of periodic back pain and the effect of the potent pain-killing drugs which he took to relieve the pain. Plaintiff also established by medical as well as lay testimony that his back pain was a direct result of the accident. Dr. Michel, the first physician to examine plaintiff, diagnosed plaintiffs back pain as due to left lower back muscle sprain and retroperitoneal hemorrhage, which causes a burning pain and also causes muscles to tire easily due to the accumulation of blood in the tissue. According to Dr. Michel, Dr. Novoselsky, the urologist who checked plaintiff for possible kidney damage, concurred with Dr. Michel on the diagnosis of retroperitoneal hemorrhage. However, in his deposition, Dr. Novoselsky disagreed with that diagnosis and speculated that plaintiff might be suffering from a chronic muscle pull or a chronic myositis (muscle inflammation). Dr. Perdue, the or-thopaedist to whom plaintiff was referred, diagnosed plaintiff’s problem as “just a muscular injury which has set up a persistent myositis or tendonitis type condition causing his prolonged symptoms”. Dr. Gamburg, an orthopaedic surgeon who examined plaintiff at defendants’ request, was unable to find anything to explain plaintiff’s pain except for ligamentous injuries which should have healed. However, Dr. Gamburg and the other examining physicians did not feel that plaintiff was trying to exaggerate his symptoms. Also, many lay witnesses testified that plaintiff often complained of back pain in the area plaintiff described to the physicians. Various lay witnesses testified that since the accident, plaintiff doesn’t talk much, seemed nervous and worried more, and was much less active than before. Before the accident plaintiff raised vegetables in a truck garden, made extra money by repairing old air conditioners, tractors, and similar items, tied flies for fishing and repaired rods and reels, and helped with the house and yard work, but he does none of these things since the accident. He has also severely curtailed his hunting and fishing activities. Plaintiff smokes much more than before, up to four packs a day, and cannot sleep without waking up several times a night. He often comes home during work days to lie down whereas before the accident he was an energetic worker. He often complains of pain in his back.

We find that the evidence establishes that plaintiff is now moody, nervous, and restless. He displays less interest in recreational activities than he did before his accident. He has trouble sleeping. He is often idle when he used to be active and has no interest in doing things. He is not as jovial as he used to be. The fact of the matter is that plaintiff suffers pain and takes considerable medication for his pain. All of these symptoms are classic symptoms of persons who sustain injury and as a result suffer pain and disability. They are com-pensable as elements of pain and suffering. They should be considered in the award to Mr. Coco. We think it would be misleading and therefore error, to treat them in a separate category of “personality change” for the purpose of the awarding of quantum.

DAMAGES FOR RESIDUAL DISABILITY LIMITING CAREER ADVANCEMENT

Defendants contend that there is no evidence to support the trial court’s finding that plaintiff’s residual disability limited his career advancement. While we do not agree that there is no such evidence, we find that the great weight of the evidence is to the contrary, and that on the basis in the record the trial court was clearly wrong in finding plaintiff’s chances for career advancement had been limited.

Plaintiff was promoted to sales by his employer, Entex, one month before the accident in which he was injured. This job involves light lifting and some travel both of which plaintiff has trouble with because of residual pain in his back and left arm. However, because of the nature of his job, and through agreement with his supervisor, plaintiff can go home as often as he wishes to rest if his pain becomes too great. En-tex will continue to allow plaintiff this “light duty” work indefinitely unless his condition worsens; then the company might “re-evaluate his position”. At worst, plaintiff could be put on disability status and would receive 60% of his present income. Also, the further promotion of the plaintiff, should his condition remain unchanged, might depend upon the job for which he was being considered, since there are numerous jobs he could not do in his present condition.

However, all the medical testimony indicates that plaintiff’s condition is temporary. The most conservative estimate, given by Dr. Michel, is that plaintiff’s back should be fully recovered in two to five years, and the problem with his left elbow and forearm should subside in about two years. At the time of trial, one year and nine months had passed since the accident. During that time, plaintiff had received promotional wage increases and had experienced no loss of wages since returning to work.

Despite the weight of the evidence to the contrary, the trial court must have assumed that plaintiff’s condition would remain unabated or worsen, and that plaintiff would then suffer some loss of income because of his inability to perform certain jobs which may or may not be required for his promotion. An award made on this basis would be highly speculative. It is well settled that courts cannot award speculative damages which are not proven with some detail and specificity. See Rawley v. Rawley, 357 So.2d 286 (La.App. 1st Cir. 1978), writ denied, 357 So.2d 1154 (La.1978), U.S. cert. denied, 439 U.S. 968, 99 S.Ct. 459, 58 L.Ed.2d 427; and Calecas v. Prieur, 384 So.2d 584 (La.App. 4th Cir. 1980). The burden of proving both the existence of injuries and the causal connection between them and the accident rest with the plaintiff. Such proof must be shown by a reasonable preponderance of the evidence. A mere possibility is not sufficient. Young v. Department of Hospitals, 365 So.2d 848 (La.App. 3rd Cir. 1978), writ denied, 368 So.2d 137 (La.1979). The evidence adduced at trial established only a mere possibility that plaintiff’s residual disability would hamper his future career advancement. Therefore, plaintiff did not meet his burden of proof as to his right to recover such damages, if any.

For these reasons, we find that the trial court’s award to plaintiff of $40,000.00 for “Residual Disability Limiting Career Advancement” was clearly wrong and we hereby amend the judgment to exclude that element of damages. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

DAMAGES FOR PAIN AND SUFFERING

Finally, defendant urges that the evidence was not sufficient to support the combined award to plaintiff of $80,000.00 for his past and future pain and suffering. Defendants also cite in their brief many recent cases relative to quantum in support of the contention that the trial court abused its discretion in fixing the award for pain and suffering at $80,000.00.

Although considerable discussion of plaintiff’s injuries and his pain and suffering is given above, we will reiterate certain facts and summarize plaintiff’s condition. On the day of the accident, October 25, 1979, plaintiff was seen in the emergency room of the Marksville General Hospital. He was complaining of pain in the left elbow and left arm. He also had multiple abrasions of the face, right buttocks, both legs and arms. Plaintiff had an abrasion and hematoma of the left arm and elbow. X-ray of the left arm and elbow were negative. Plaintiff was advised to return home and to return to the doctor’s office the following Monday.

On October 28, 1979, the plaintiff was seen by Dr. Michel at his office and reported to him that he was improving. The plaintiff complained of some pain in the left rib cage. Problems in the lungs and kidneys were checked and injury in those areas was ruled out. Dr. Michel next saw plaintiff on November 5, 1979, at which time plaintiff again reported that he was doing better. The hematoma of the left forearm was decreasing. The sole complaint was of a backache over the kidney area. On November 12, 1979, plaintiff reported that everything seemed to be improved except the pain in the lower left back.

At that time Dr. Michel referred plaintiff to Dr. Seth Novoselsky. Dr. Novoselsky found no urological pathology and diagnosed plaintiff’s problem as a bruise of the muscle in the left paraspinous area. Dr. Novoselsky saw plaintiff again on November 9,1979, at which time plaintiff told him his pain had decreased. He described his sensation as a burning in the left flank when he arose in the morning and prior to taking medication. Plaintiff did not experience as much pain at that time upon motion as he had previously.

Plaintiff reported to Dr. Michel on December 17, 1979, that his condition was still improving. He did have some tenderness in the left flank and plaintiff described his pain as a burning type pain. Dr. Michel released plaintiff to return to light duty work on January 11, 1980.

Thereafter, plaintiff has had pain “off and on” but generally appears to have improved. Plaintiff was examined by Dr. L. D. Perdue in June 1980, and by Dr. Douglas L. Gamburg on March 30, 1981. Both of these experts are orthopaedic surgeons. Their findings have been indicated above.

After plaintiff had recovered from his initial injuries, Dr. Michel diagnosed plaintiff’s condition as a retroperitoneal hemorrhage, a broken blood vessel which allows blood to leak out between the lining of the abdomen and the muscle in the back. Plaintiff appears to have improved continuously, but was still complaining of pain at the time of trial. The expert physicians did not make the same findings as Dr. Michel, but we have no doubt that plaintiff has suffered a painful injury and has experienced some limitation and disability. Considering all of the testimony, plaintiff’s injury was a temporary injury to the muscle of his lower back which all doctors feel will eventually completely resolve itself.

Plaintiff never required hospitalization. He was given medication and conservative treatment only. After a period of limitation lasting a little over two months, plaintiff was able to return to work. He continues to improve. Plaintiff’s pain and suffering, including its effect on his outlook and good humor, and his disability are not sufficient to justify an award as high as that given by the trial court. In our opinion any award beyond $25,000.00 for past pain and suffering and $5,000.00 for future pain and suffering would exceed the highest amount the trial court have justifiably awarded. Under the circumstances, and under the authority of Coco v. Winston Industries, 341 So.2d 332 (La.1976), we reduce the total award to a total of $30,-000.00.

With the amendment mentioned above, the judgment of the trial court is affirmed including the judgment in favor of the in-tervenor, Hartford Accident and Indemnity Company.

AMENDED AND AFFIRMED AS AMENDED.

      . Veziaat v. Manx, 217 So.2d 416 (La.App. 1st Cir., 1968); Belson v. Subsurface Completion Service, 253 So.2d 686 (La.App. 3rd Cir. 1979); Edwards v. Lewis Grocery Company, 391 So.2d 13 (La.App. 2nd Cir. 1980); and Devillier v. Traders & General Insurance Company, 321 So.2d 55 (La.App. 3rd Cir. 1975), writ refused, 325 So.2d 273 (La. 1976).

      . Although one lay witness went so far as to state that plaintiff displayed symptoms of “battle fatigue,” we note that plaintiff was back on his job in a little over two months after the accident performing productive work. Wilbert L. Bertrand, plaintiffs immediate supervisor and manager of the Marksville-Bunkie area of Entex (plaintiffs employer), was called by plaintiff. With reference to the personality change question, in response to a question by plaintiffs counsel, he testified as follows:
      “Q. Did uh ... after the accident, did you make any personal observations as far as changes in his behavior or his attitude that you could observe?
      A. Well, rather than the, you know, the physical, his physical ability, I knew had been affected. He seems to be nervous, maybe .. he seems to be a little more nervous now. I don’t know that I, I haven’t noticed anything other than him being a iittie nervous and highstrung and maybe a little loss of weight and you know ...
      Q. That’s in addition to the physical problem, I think you said?
      A. Right, right.” (Emphasis supplied.)


author: SWIFT, Judge.

text:
    Leo BROSSETTE, Plaintiff-Appellee, v. STATE of Louisiana, Through the DEPARTMENT OF PUBLIC SAFETY, Defendant-Appellant.
    No. 8718.
    Court of Appeal of Louisiana, Third Circuit.
    March 10, 1982.
    Robert L. Roshto, Asst. Gen. Counsel, Baton Rouge, for defendant-appellant.
    Richard N. Ware, Natchitoches, for plaintiff-appellee.
    Before DOMENGEAUX, SWIFT and LABORDE, JJ.
   SWIFT, Judge.

The plaintiffs driver’s license was suspended for one year in accordance with LSA-R.S. 32:415 following his conviction for driving with a suspended or revoked license. He then filed this action against the State of Louisiana, through the Department of Public Safety, under the provisions of LSA-R.S. 32:415.1, praying for the issuance of a restricted driver’s license due to economic hardship. After a hearing judgment was rendered on June 9, 1981, granting the plaintiff an unrestricted driver’s license. The defendant has appealed.

The only issue before this court is whether the trial judge had authority to issue an unrestricted driver’s license under LSA-R.S. 32:415.1 which provides in part as follows:

“A. (1) Upon suspension, revocation, or cancellation of a person’s drivers license for the first time only as provided for under R.S. 32:414(B), (C), (D), (E), and R.S. 32:415 said person after initial notice from the department shall have the right to file a petition in the district court of the parish in which the applicant is domiciled alleging that revocation of his driving privileges will deprive him or his family of the necessities of life or will prevent him from earning a livelihood. The district court is vested with jurisdiction to set the matter for contradictory hearing in open court upon ten days written notice to the department, and thereupon to determine whether the allegations of hardship have merit. Upon determination by the court that the lack of a license would deprive the person or his family of the necessities of life, the court may order that the person be granted by the department a restricted license to enable the person to continue to support his family. The restrictions of said license shall be determined by the court and shall include the following:
“(a) Licensee shall only be permitted to operate motor vehicle on such streets as would enable him to earn his livelihood.
“(b) Such operation is restricted to such times at which he is involved in earning a livelihood.
“(c) During the period of suspension, licensee shall be responsible for applying to the court in the event that earning his livelihood necessitates a change in the original restrictions proposed by the court.
“(d) Any other restrictions that the court determines to be necessary and proper.” [Emphasis added.]

Under this statute it is discretionary with the trial court whether or not the department will be ordered to grant a restricted license to enable the person to continue to support his family. Ansley v. State, Dept. of Public Safety, 356 So.2d 518 (La.App. 1 Cir. 1977). However, if the court decides to do so the license must include the restrictions set forth in sub-paragraphs (l)(a) through (d).

In the present case plaintiff was granted an unrestricted license contrary to the mandatory provisions of the statute. It therefore erred in this respect.

Since we are unable to determine from the record the streets which plaintiff must travel to enable him to earn his livelihood and the time periods necessary for such travel, the case must be remanded to the trial court for its determination of the extent of the restrictions to be placed upon the plaintiff’s driver’s license.

For these reasons the judgment of the district court is reversed insofar as it granted an unrestricted driver’s license to the plaintiff, but it is otherwise affirmed. The case is hereby remanded to the district court for further proceedings consistent with law and this opinion. The costs of this appeal are assessed to plaintiff-appellee.

REVERSED IN PART AND REMANDED.