text:
    Harold J. NAQUIN v. UNIROYAL, INC.
    No. 14032.
    Court of Appeal of Louisiana, First Circuit.
    April 13, 1981.

      Calvin E. Hardin, Jr., Baton Rouge, for plaintiff-appellant Harold J. Naquin.
    Robert A. Hawthorne, Jr., Baton Rouge, for defendant-appellee Uniroyal, Inc.
    Before ELLIS, COLE and WATKINS, JJ.
   WATKINS, Judge.

This is an action for worker’s compensation benefits. The trial court awarded plaintiff, Harold J. Naquin, $39.00 per week for 200 weeks for partial loss of use of an arm, penalties, and attorney’s fees. The plaintiff has appealed seeking increased compensation for total or partial disability under LSA-R.S. 23:1221(2) and 23:1221(3), respectively. Defendant, Uniroyal, Inc., has answered the appeal, seeking reduction or elimination of penalties and attorney’s fees. We affirm the judgment of the trial court in all respects.

Naquin was employed as controls coordinator by Uniroyal for six years, a supervisory position he had attained after having worked up through the ranks. On or about July 29, 1978, while performing his tasks at Uniroyal’s Scott’s Bluff plant, he tripped over some hoses and fell against the wall, dislocating his left shoulder. At the time he was 53 years of age. He was seen by two physicians and hospitalized. During a recovery period of several weeks, he was paid full salary by Uniroyal. He returned to his job with Uniroyal, and performed most of his old tasks, although he was physically unable to perform some, notably, turning valves, climbing vertical ladders, and drawing lines on charts. He worked for the same salary, approximately $27,000 per year.

Shortly after the beginning of the next year, the plant at which Naquin worked (Scott’s Bluff) was sold by Uniroyal to U. S. Steel Chemicals. U. S. Steel eliminated some 23 jobs, including Naquin’s. The termination of jobs was brought about in part by a redescription of tasks, which eliminated many positions, including Naquin’s, and in part by the dismissal of employees with poor or failing performance ratings, Naquin falling into the poor category. The job ratings had been prepared over a period of several years by Uniroyal, and Naquin’s poor rating resulted from his chronic absenteeism both before and after injury, and had nothing at all to do with disability resulting from injury.

Naquin was more or less forcibly retired. He now receives retirement pay. He testified that he had not been successful in finding a job, although Uniroyal’s former employees testified several jobs were available for a man of Naquin’s abilities and breadth of experience.

We find no error in the trial court’s determination that Naquin’s loss of his job was the result of the change in ownership of the Scott’s Bluff plant, and not the result of his injury that he received on the job. There is nothing in the record to support factually the contention that Naquin lost his job because he was partially disabled. The evidence in the record in that regard is based upon conjecture, that is without substance or support, as twenty-two other positions were simultaneously eliminated, the holders of which could not all have had disabling injuries. The record reveals, furthermore, that Naquin lost his job because his job description was eliminated and because he had a non-injury-related poor performance rating, as a result of chronic absenteeism.

Clearly, Naquin did sustain partial loss of use of his left arm, and is entitled to compensation for that, but nothing more.

As to attorney’s fees and penalties, we see that Naquin’s attorney wrote a very courteous letter to Uniroyal informing it of his employment by Naquin in the case, and mentioning a discussion of the claim with an attorney representing Uniroyal. The letter was dated February 7, 1979. Worker’s compensation payments were not begun until July 19, 1979, more than 60 days after the writing of that letter. To avoid penalties and attorney’s fees under LSA-R.S. 23:1201.2, the employer must begin compensation payments within 60 days after receipt of written notice of claim. Although the letter of February 7, 1979, was couched in polite language, and surely professional courtesy is not to be discouraged, the said letter can have had no purpose other than to demand worker’s compensation benefits. In Hilliard v. Fidelity and Cas. Co., 241 So.2d 783 (La.App. 3d Cir. 1970), it was found appropriate to award attorney’s fees where the only timely notice of injury was a formal accident report and a bill for medical treatments to the injured worker from his physician. Notice was far stronger in the present case, as it came from Naquin’s attorney. In view of the time, work, and skill required of Naquin’s attorney, we cannot say that the trial court was excessive in its award of $2,000 attorney’s fees. Also, clearly by statute (LSA-R.S. 23:1201.2) plaintiff was entitled to, and properly was awarded, penalties.

The judgment of the trial court is affirmed, at Uniroyal’s cost.

AFFIRMED.


source: Caselaw Access Project

author: EDWARDS, Judge.

license: Public Domain

text:
    Joseph L. GUERRA v. Sandra McGowen GUERRA.
    No. 14132.
    Court of Appeal of Louisiana, First Circuit.
    April 13, 1981.
    Sumpter B. Davis, III, William J. Staser, Baton Rouge, for plaintiff-appellant Joseph L. Guerra.
    Kenneth L. Riche, Baton Rouge, for defendant-appellee Sandra McGowen Guerra.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   EDWARDS, Judge.

Plaintiff, Joseph L. Guerra, appeals a judgment granting him a divorce from his wife, Sandra McGowen Guerra, and ordering him to pay $100 per month in permanent alimony. Plaintiff complains that the alimony award is excessive. Specifically, he argues that defendant’s expense itemization includes expenses for a child of a previous marriage and that defendant has not fulfilled her earning capability.

The record reveals that defendant earns $58 per eight-hour shift as a private duty nurse at Lane Memorial Hospital. Her average gross income is $880 per month, subject to an average payroll deduction of $170. She also receives $150 as monthly child support from the father of her child.

Defendant itemized her monthly expenses for a total of $1,607 and stated that her mother had helped her to meet these expenses. They properly include such items as expenses for shelter ($290 as payment and lot rent for a trailer); food and household supplies ($425); clothing ($100); gasoline for transportation to and from work ($154); utilities ($150); laundry ($10); car, home, and health insurance ($123.88); car note ($182); and professional dues and insurance ($14.25). Loyacano v. Loyacano, 358 So.2d 304 (La. 1978); Bernhardt v. Bernhardt, 283 So.2d 226 (La. 1973).

Defendant testified that the itemization of expenses did not include medical expenses for herself due to a possible neurological problem causing loss of feeling in the left portion of her body. She introduced into evidence several medical bills in conjunction with this testimony and stated that she was still under a doctor’s care for the condition.

Defendant stated that she worked as much as she possibly could. She explained that she is assigned to private duty cases from a register of nurses. The assignment might last one night or a month, depending upon the patient’s condition. At the conclusion of the assignment, her name goes back on the register at the bottom of the list.

Dorothy Nugent, Director of Nursing Services at Lane Memorial Hospital, testified that she cannot always secure enough private duty nurses to fill the demand for them. She also stated that she had no information concerning defendant’s working hours and was not asserting that defendant could work more than she does.

In fixing alimony, a trial court is vested with considerable discretion. Pearce v. Pearce, 348 So.2d 75 (La. 1977); Ducote v. Ducote, 339 So.2d 835 (La. 1976). Considering the entire record, we are unable to say that the trial court abused its discretion by fixing alimony at $100 per month.

For the foregoing reasons, the judgment of the trial court is affirmed. All costs, both trial and appellate, are to be paid by Joseph L. Guerra.

AFFIRMED.


text:
    Pearl JORDAN v. DEPARTMENT OF HEALTH AND HUMAN RESOURCES, Southeast Louisiana Hospital.
    No. 14053.
    Court of Appeal of Louisiana, First Circuit.
    April 13, 1981.

      Mary E. Howell, Howell, Kellogg & Bayer, New Orleans, for appellant.
    E. Michael Harrison, Staff Atty., Dept, of Health & Human Resources, Baton Rouge, for appellee.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   EDWARDS, Judge.

Pearl Jordan, an employee of the Southeast Louisiana Hospital, appeals a decision by the Louisiana State Civil Service Commission upholding her suspension for three days by the hospital. We affirm.

Ms. Jordan was suspended for violating DHHR policy 77-0005-1 and for disobedience of direct orders from her supervisor.

A review of the record indicates that there was sufficient evidence on which the Civil Service Commission could base its findings of fact. Essentially, appellant made repeated derogatory remarks, some admitted to, about the prospective employment of a handicapped worker who was ultimately hired as appellant’s secretary. After being warned by a superior, appellant, on at least two occasions, commented on the new employee’s physical defects. The suspension followed.

Four of appellant’s specifications of error warrant consideration. Appellant urges that her speech was protected, that the facts as found were erroneous, that no harm was caused, and that no offense was committed.

Very able counsel for plaintiff has tried to posture this matter as one involving free speech. We fully recognize the importance of free speech and would zealously defend same but we find that this is simply not a case involving free speech. Plaintiff was not disciplined for speaking out on an issue of public concern. Nor was she disciplined for making relevant comments about questionable working conditions. To the contrary, plaintiff, characterized by a fellow employee as an “(e)xtremely outspoken” woman, was suspended for disobeying the instructions of her superior and repeatedly griping about the possible hiring of a cripple. Furthermore, even if this were a matter of free speech, we would have to conclude that the instructions laid down by plaintiff’s superior were a reasonable regulation of the time, place and manner of speech reasonably related to the smooth functioning of the hospital.

The record, although not the strongest we have seen, supports a finding that Ms. Jordan was, at least for a period of time, a complaining malcontent.

Regarding plaintiff’s claim that no offense was committed, there is no way that a hiring authority can list all the particular statements that may be impermissible. General rules must suffice. In the instant case, the speech by appellant clearly demonstrated a poor attitude toward the handicapped employee and a refusal to obey a valid order to desist from same. Such an attitude certainly impairs the efficiency of a department, particularly in a hospital attempting to help those with defects. The contentiousness displayed by plaintiff clearly constitutes harm and, as such, is punishable.

Under the circumstances, the punishment meted out, a three-day suspension, was reasonable.

For the foregoing reasons, the decision of the Civil Service Commission is affirmed. All costs are to be paid by Pearl Jordan.

AFFIRMED.

      . DHHR Policy 77-0005-1 provides in part:
      “No person shall, on the ground of race, color, national origin, or handicap, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity conducted in this agency. The Department of Health and Human Resources will take appropriate action to insure that the above will be implemented at all levels of administration.”


author: WATKINS, Judge.

text:
    Charlie W. JORDAN v. Ray T. SUTTON, Commissioner of Conservation, State of Louisiana, In His Official Capacity.
    No. 14066.
    Court of Appeal of Louisiana, First Circuit.
    April 13, 1981.
    Rehearing Denied May 18, 1981.
    On Rehearing June 29, 1981.

      Hal R. Henderson, Arcadia, Bobby L. Cul-pepper, Jonesboro, for plaintiff-appellant Charlie W. Jordan.
    Veil David Devillier, Eunice, for defendant-appellee Ray T. Sutton.
    Kerry M. Massari, Lafayette, for interve-nor-appellee Southern Natural Gas Co.
    Before ELLIS, COLE and WATKINS, JJ.
   WATKINS, Judge.

This is an appeal taken from a judgment sustaining a peremptory exception of prescription filed in a suit brought against the Commissioner of Conservation under the authority of LSA-R.S. 30:12. The suit seeks to enjoin enforcement of an order of the Commissioner. We reverse.

An order of the Commissioner of Conservation dated April 20,1979, issued on application of Southern Natural Gas Company established the Bear Creek Pettit Limestone Gas Storage Area under Order No. 78-F-4. Charlie W. Jordan, plaintiff in the present suit, was represented in the hearing upon which the order was based, the date of the hearing being February 22, 1979. Jordan is recited in his petition as co-owner of a tract of land beneath which the gas storage reservoir was created.

The order of the Commissioner was issued, subject to Southern Natural Gas’s obtaining subleases or storage agreements from 75% of the owners in interest for the creation of the reservoir, which was created on the assumption that the natural gas and oil wells in the area were fully depleted. The drilling units existing prior to April 20, 1979, were to be abolished upon Southern Natural’s commencing its injection of natural gas into the reservoir. On July 3, 1979, the Commissioner issued a Supplement to Order No. 78-F-4 finding that Southern Natural had obtained subleases or storage agreements of more than 75% of owners in interest, and declared his order then fully effective.

The basic complaint of plaintiff is that the creation of the storage area affects strata not intended to be a part of, and not directly a part of, the storage reservoir area, and that the Commissioner relied upon false information in creating the storage reservoir area. Plaintiff enjoys or enjoyed production from adjoining strata.

Shortly after the original order was issued, and thereafter until suit was filed on July 21, 1980, Jordan periodically had conversations with Sutton and representatives of Southern Natural, and was assured by Sutton repeatedly that there was no need for Jordan to apply to the Commissioner for a rehearing, as the order of the Commissioner might be set aside or modified.

Upon Jordan’s filing the present suit, Southern Natural intervened and the Commissioner and Southern Natural filed exceptions of prescription and lack of jurisdiction, the former exception being subsequently sustained after hearing by the trial court.

In support of both exceptions Southern Natural and the Commissioner argue that the Administrative Procedure Act (specifically LSA-R.S. 49:964(B)) requires an action to set aside a ruling or order of an administrative agency to be brought within thirty days of its becoming final. Jordan contends that the order of the Commissioner was not final, and hence the prescriptive period did not begin to run. Our reading of the applicable provision of the Administrative Procedures Act (LSA-R.S. 49:951 et. seq., the specific provision being R.S. 49:964), and our comparison of that provision with the comparable provision of the statute providing for judicial review of an order of the Commissioner of Conservation (LSA-R.S. 30:12) renders it unnecessary for us to determine whether or not the order of the Commissioner of Conservation is a final order in the sense of LSA-R.S. 49:964. These two specifically applicable statutes providing for judicial review quoted in full read as follows:

R.S. 30:12
“An interested person adversely affected by any law of this state with respect to conservation of oil or gas, or both, or by a provision of this Chapter, or by a rule, regulation, or order made by the commissioner hereunder, or by an act done or threatened thereunder, and who has exhausted his administrative remedy, may obtain court review and seek relief by a suit for an injunction against the commissioner as defendant. Suit shall be instituted in the district court of the parish in which the principal office of the commissioner is located and shall be tried summarily. The attorney representing the commissioner may have a case set for trial at any time after ten days’ notice to the plaintiff or his attorney of record. The burden of proof shall be upon the plaintiff and all pertinent evidence with respect to the validity and reasonableness of the order of the commissioner complained of shall be admissible. The law, the provision of this Chapter, or the rule, regulation, or order complained of, shall be taken as prima facie valid. This presumption shall not be overcome in connection with any application for injunc-tive relief, including a temporary restraining order, by verified petition or affidavit of or in behalf of the applicant. The right of review accorded by this Section shall be inclusive of all other remedies, but the right of appeal shall lie as hereinafter set forth in this Chapter.” R.S. 49:964
“A. A person who is aggrieved by a final decision or order in an adjudication proceeding is entitled to judicial review under this Chapter whether or not he has applied to the agency for rehearing, without limiting, however, utilization of or the scope of judicial review available under other means of review, redress, relief, or trial de novo provided by law. A preliminary, procedural, or intermediate agency action or ruling is immediately reviewable if review of the final agency decision would not provide an adequate remedy and would inflict irreparable injury.
B. Proceedings for review may be instituted by filing a petition in the district court of the parish in which the agency is located within thirty days after mailing of notice of the final decision by the agency or, if a rehearing is requested, within thirty days after the decision thereon. Copies of the petition shall be served upon the agency and all parties of record.
C. The filing of the petition does not itself stay enforcement of the agency decision. The agency may grant, or the reviewing court may order, a stay upon appropriate terms.
D. Within thirty days after the service of the petition, or within further time allowed by the court, the agency shall transmit to the reviewing court the original or a certified copy of the entire record of the proceeding under review. By stipulation of all parties to the review proceedings, the record may be shortened. A party unreasonably refusing to stipulate to limit the record may be taxed by the court for the additional costs. The court may require or permit subsequent corrections or additions to the record.
E. If, before the date set for hearing, application is made to the court for leave to present additional evidence, and it is shown to the satisfaction of the court that the additional evidence is material and that there were good reasons for failure to present it in the proceeding before the agency, the court may order that the additional evidence be taken before the agency upon conditions determined by the court. The agency may modify its findings and decision by reason of the additional evidence and shall file that evidence and any modifications, new findings, or decisions with the reviewing court.
F. The review shall be conducted by the court without a jury and shall be confined to the record. In cases of alleged irregularities in procedure before the agency, not shown in the record, proof thereon may be taken in the court. The court, upon request, shall hear oral argument and receive written briefs.
G. The court may affirm the decision of the agency or remand the case for further proceedings. The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:
(1) In violation of constitutional or statutory provisions;
(2) In excess of the statutory authority of the agency;
(3) Made upon unlawful procedure;
(4) Affected by other error of law;
(5) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion; or
(6) Manifestly erroneous in view of the reliable, probative, and substantial evidence on the whole record. In the application of the rule, where the agency has the opportunity to judge of the credibility of witnesses by first-hand observation of demeanor on the witness stand and the reviewing court does not, due regard shall be given to the agency’s determination of credibility issues.”

It will be noted immediately that Subsection A. under LSA-R.S. 49:964 states that the mode of judicial review therein established does not limit “. . . utilization of or the scope of judicial review available under other means of review, redress, relief, or trial de novo provided by law.” LSA-R.S. 30:12 clearly provides another form of judicial review of a rule, regulation or order of the Commissioner of Conservation, parallel to and continuing to exist after the enactment of the form for judicial review provided in the Administrative Procedures Act. Since the language of R.S. 49:964(A) plainly provides that the right of judicial review therein established is not exclusive of other means of judicial review available under other law, we find that the subject provisions of the Administrative Procedures Act created an alternate form of judicial review, while not repealing or intending to repeal existing forms of judicial review of administrative rulings or orders. We further find that the subject provisions (LSA-R.S. 49:964) specifically do not repeal or supersede the provisions for court (judicial) review set forth in LSA-R.S. 30:12. Further support for this construction is supplied by a comparison of these two statutes providing for judicial review when applied to an order of the Commissioner of Conservation, as is here pertinent.

A comparative analysis shows:

(1) That the scope of review is not the same. In Title 49 the court is limited to the record; in Title 30 the court tries the matter and takes “all pertinent evidence”.

(2) The form of relief sought is different. Under Title 49 the petitioner seeks “judicial review”; under Title 30, the petitioner seeks an injunction against the Commissioner of Conservation.

(3) The burden of proof is different. Under Title 49, the test upon whether or not to set aside a finding of fact is manifest error; under Title 30, the rule or order of the Commissioner is merely taken as prima fa-cie valid.

This comparison demonstrates the alternative nature of the two forms for judicial review. The two forms provided for judicial review do not fit into a single integrated whole, but rather are separate, dissimilar, and hence, parallel.

We might note that if Title 49 provided the sole form of judicial review, plaintiff Jordan’s position would be jeopardized in still another way, as it is apparent from his petition that Jordan seeks the introduction of new evidence, which could be inadmissible under Title 49 as the court would be confined to the record.

We, thus, conclude that Title 30 and Title 49 provide parallel and coexisting forms of judicial review. As only Title 49 provides a prescriptive period, we find that period inapplicable to the form of review provided under Title 30. Hence, we hold that the exception of prescription was improperly sustained.

Also before us is the plea of lack of jurisdiction. That plea is based on the premise, no doubt, that jurisdiction of the district court, the appellate court for review of an administrative order, never attached since the filing for judicial review was barred by prescription or laches. We have fully considered prescription above.

We have been cited no cases and we are not aware of any in which laches was applied to judicial review of an order of the Commissioner of Conservation under LSA-R.S. 30:12. However, the concept of laches has been applied to petitions for the judicial review of orders of other administrative bodies. See, e.g., State ex rel. Koehl v. Sewerage and Water Board, 179 La. 117, 153 So. 533 (1934). In that case, the position of cashier of the Sewerage and Water Board, New Orleans, was abolished as a result of a deficiency of tax revenues and the former employee whose position was abolished, over a period of almost a year, had repeated conversations with the board’s secretary in which no promises were made and no assurances given. After almost a year’s delay, the former cashier filed suit. The Louisiana Supreme Court held laches applied, and the former cashier had not been lulled into a sense of security by the board’s secretary, as the secretary had given no assurances. In the present case, we see, unlike Koehl, Commissioner Sutton constantly over a period of many months led plaintiff, Jordan, to believe that there was a strong possibility that the order creating the gas storage area would be set aside on the basis of new evidence, and assured Jordan there was no need to seek a formal rehearing. Laches is an Anglo-American principle found in the law of equity and founded upon equity. We find that it is manifestly unjust or inequitable to state that Jordan slept on his rights and is barred from suit when he was led to delay the filing of his petition for judicial review by the assurances of the defendant. We, therefore, overrule the exception to the jurisdiction of the court, as well as the exception of prescription.

Both exceptions having been overruled, we remand the case to the trial court for further proceedings, all costs to be borne by the Commissioner of Conservation and Southern Natural Gas.

REVERSED AND REMANDED.

ON REHEARING

The facts of this case are well set forth in our original opinion. We granted a rehearing on the question of laches.

Two elements must be proved by defendant to establish plaintiff was guilty of laches: (1) unreasonable delay on the part of the plaintiff in filing suit, (2) harm that would be suffered by defendant or a third party resulting from defendant’s or a third party’s actions based on reasonable assumption, occasioned by the delay, that plaintiff would not seek further legal redress. State ex rel. McCabe v. Police Board, 107 La. 162, 31 So. 662 (1902); Knight v. Louisiana State Bd. of Medical Examiners, 195 So.2d 375 (La.App. 4th Cir. 1967). It is clear that plaintiff is guilty of laches if no set term is required by statute for an appeal of an administrative ruling or order and plaintiff fails to appeal within a reasonable time. McCabe and Knight, supra. In such a case plaintiff is barred by laches from seeking redress in the courts if in addition defendant or a third party would be prejudiced as a result of having relied on the assumption, occasioned by the unreasonable delay on the part of plaintiff, that plaintiff would not seek further legal redress.

In the present case, Jordan testified that he was misled by statements of Commissioner Sutton into believing that the order of the Commissioner of Conservation would be set aside without Jordan’s needing to file legal action. The testimony of Commissioner Sutton, which we have carefully reviewed, does not directly contradict this assertion. However, Southern Natural Gas has indicated that reasons other than the asserted assurances of Commissioner Sutton were responsible for Jordan’s delay in instituting the present action. Basically, it is contended that Jordan was hoping to obtain relief directly from Southern Natural Gas in the form of compromise of a suit that was then pending, and that Jordan changed legal counsel, causing a delay. There is no evidence in the record directly to support either of those assertions.

Southern Natural Gas and the Commissioner contend that the manifest error rule applies, as the trial court stated Jordan’s delay was unreasonable. However, this statement was found only in oral reasons, and did not form a part of the final judgment, which sustained the plea of prescription alone without ruling upon laches. Also, when we evaluate the trial court’s oral reasons, we see the trial court rested its decision on the Administrative Procedures Act, or in other words prescription. We have held that the Administrative Procedures Act does not apply, and have not granted the rehearing on that point. The trial court mentioned reasonableness of delay as an afterthought, not as a substantial basis of its decision, and its assertion as to reasonableness of the delay does not rest upon that thoroughness of deliberation on the part of the trial court that would render it subject to the manifest error rule, even had that assertion formed a basis of its ultimate judgment.

As the record is incomplete on the issue of laches as to the reasonableness of Jordan’s delay, we remand for the taking of further testimony from witnesses to be produced by both plaintiff and defendants, and receipt of other evidence on the reasonableness of Jordan’s delay.

Southern Natural Gas and the Commissioner contend that Jordan’s delay (15 months) was a basis for an application of the doctrine of laches in and of itself in view of the nature and effect of the orders of the Commissioner. However, for laches to apply, as we have seen, both unreasonableness of delay and prejudice to defendant or a third person must be proved. No evidence, as opposed to speculation, has been offered on the matter of possible prejudice to Southern Natural Gas. Therefore, evidence should be presented in the lower court on the issue of whether or not the contended unreasonable delay on the part of Jordan in asserting his rights prejudiced Southern Natural Gas. The record as presented is devoid of evidence on this question.

Accordingly, we vacate our earlier ruling on the issue of laches and remand for further proceedings consistent with this opinion. All costs shall await final determination of the matter.

REMANDED.

      . The source of the statute providing for judicial review of rule, regulation or order of the Commissioner of Conservation is Act 157 of 1940, Sec. 11.
      The source of the statute providing for judicial review of “final decision or order in an adjudication proceeding” of an administrative agency is Act 382 of 1966, Sec. 14, which took effect July 1, 1967.


author: PONDER, Judge.

text:
    Tammy Wheat PARKER v. Charles H. PARKER.
    No. 14069.
    Court of Appeal of Louisiana, First Circuit.
    April 13, 1981.
    John Burgess, Livingston, for plaintiff.
    Charles H. Parker (In proper person) for defendant.
    John P. Calmes, Jr., Baton Rouge, for defendant-appellant.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   PONDER, Judge.

Defendant appealed from an award of $1,000.00 attorney’s fees in favor of plaintiff in suits for past due alimony.

The sole issue is the reasonableness of the award.

We affirm.

Plaintiff filed two suits and an amended petition for past due alimony and attorney’s fees. Before trial of the first rule defendant paid the past due amount and made his obligation current. Following a hearing on the second rule, which had been amended, the trial court awarded plaintiff $600.00 in past due alimony and $1,000.00 as attorney’s fees.

Defendant claims the award is unreasonable. While the award may be high, we cannot say upon review of the record that it is an abuse of the trial court’s wide discretion in the award of attorney’s fees. LSA-R.S. 9:305; Bruner v. Bruner, 373 So.2d 971 (2d Cir. 1979); State Department of Highways v. Terrebonne, 349 So.2d 936 (1st Cir. 1977) writ refused 351 So.2d 166.

For the above reasons, the judgment of the trial court is affirmed at appellant’s costs.

AFFIRMED.


text:
    Dr. John R. CHADWICK v. Robert F. RICHARD, Formerly d/b/a Bayou Roofing and Siding Co. and Johns-Manville Sales Corporation.
    No. 14071.
    Court of Appeal of Louisiana, First Circuit.
    April 13, 1981.
    Rehearing Denied May 18, 1981.

      John Lanier, Thibodaux, for plaintiff-appellant Dr. John R. Chadwick.
    Robert F. Richard, in pro. per.
    Jarrell E. Godfrey, Jr., New Orleans, for defendant-appellee Johns-Manville Sales Corp.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   EDWARDS, Judge.

Plaintiff, Dr. John R. Chadwick, brought suit against Robert F. Richard, formerly d/b/a Bayou Roofing and Siding Co., and Johns-Manville Sales Corporation seeking $15,359 in damages plus interest, costs and attorney fees. Johns-Manville named Richard a third-party defendant. From two judgments which, taken together, dismissed all claims, plaintiff appeals. We reverse and render.

Chadwick contracted with Richard to re-roof plaintiff’s office using Johns-Manville shingles. Shortly after completion of the job, it rained and the new roof leaked. Several attempts by Richard to correct the leak failed and plaintiff ultimately had to have the job done again. In the meantime, plaintiff’s office suffered extensive water damage to the interior.

The trial court found that plaintiff had failed to establish that either the Johns-Manville shingles or the workmanship of Richard was defective.

Dismissal of both Johns-Manville as defendant and Richard as third-party defendant was proper because the record discloses nothing from which it could reasonably be concluded that the Johns-Manville shingles were defective.

The trial court’s dismissal as to Robert Richard was manifestly erroneous. A leaking roof is defective. Richard and Danny Albares, a roofing contractor, testified that Richard had properly installed the new roof with its seven skylights. However, leakage occurred at and below the level of each skylight. Furthermore, Mike Larocca and Lanny Berry, inspectors for Johns-Manville, stated that the skylights had been improperly installed. Richard simply failed to show that the shingles or skylights were defective, that the use of shingles was inadvisable but insisted on by Chadwick, or any other conclusion which would prove that the leaking roof installed by him was not his fault.

Plaintiff spent $2,100 to have the roof redone. In addition, he proved damages as follows:

Carpet replacement - $ 567.00 Ceiling repainting - 597.00
Wallpaper purchase - 406.08
Wallpaper hanging - 181.12
Total $1,751.20

For the foregoing reasons, the judgment appealed from is annulled and reversed. It is hereby ordered, adjudged and decreed that there be judgment herein in favor of Dr. John R. Chadwick and against Robert F. Richard condemning defendant to pay plaintiff $3,851.20 plus legal interest from date of judicial demand. All costs, both trial and appellate, are to be paid by Robert F. Richard.

REVERSED AND RENDERED.

      . Johns-Manville urges that Chadwick did not specifically appeal from the judgment of April 24, 1980, which dismissed Johns-Manville as a defendant. While appellant’s brief is not clear on this point, he does pray for judgment against both defendants. A concise specification of errors is not necessary where a brief identifies the issues in general argument. Guidry v. Ford, Bacon & Davis Construction Company, 371 So.2d 1301 (La.App. 3rd Cir. 1979). We shall, therefore, treat the appeal as pending against both defendants.

      . This conclusion is obvious. In addition, it has precedent. Stream v. LeJeune, 352 So.2d 714 (La.App. 3rd Cir. 1977).

      . At the conclusion of trial and after stating that he would dismiss Johns-Manville as a defendant, the district judge stated “I thought until Mr. Albares testified that you (Chadwick) should have judgment).” Complete reliance on the testimony of one witness, albeit an independent one, in the face of such an overwhelming prima facie case against Richard, was unwarranted.


author: LEAR, Judge.

text:
    Walter R. LeBLANC and Howard L. Chaney III v. OAKMONT MARINE CORPORATION, SPECIALIZED LORAIN DIVISION.
    No. 14073.
    Court of Appeal of Louisiana, First Circuit.
    April 13, 1981.

      John B. Noland, Baton Rouge, for plaintiffs-appellees Walter R. LeBlanc and Howard L. Chaney, III.
    Christopher M. Guidroz, New Orleans, for defendant-appellant Specialized Lorain, a Division of Oakmont Marine Corp. and in-tervenor-appellant Paul Sciortino.
    Walton J. Barnes, Baton Rouge, for defendant-appellee Marshall McClendon.
    Before COVINGTON, CHIASSON and LEAR, JJ.
   LEAR, Judge.

This suit involves a claim by Walter R. LeBlanc (LeBlanc) and Howard L. Chaney III (Chaney) for unpaid wages plus penalties and attorney fees against a former employer, Oakmont Marine Corporation, Specialized Lorain Division (Oakmont).

Oakmont answered the petition and filed a reconventional demand in which it alleged that plaintiffs had in their possession, at the time plaintiffs resigned, certain tools and other property belonging to Oakmont which Oakmont attempted to recover by sending another of its employees (Paul Sciortino) to plaintiffs’ residence in Baton Rouge, Louisiana. Oakmont further alleges that Le-Blanc and Chaney refused to communicate with Sciortino and sought to intimidate Sciortino by the presence of an individual armed with a high powered pistol while at LeBlanc’s home. Oakmont further filed a third party demand against “John Doe”, the armed individual, for a tortious assault on Oakmont’s employee, Sciortino, and “A”, “B” and “C” insurance companies insuring LeBlanc, Chaney and “John Doe.”

Further, Sciortino filed an intervention against LeBlanc, Chaney, “John Doe” and “A”, “B” and “C” insurance companies, claiming damages for a tortious assault.

Interrogatories were propounded to plaintiffs and in answer to these interrogatories “John Doe” was identified as Marshall K. McClendon, a police officer who was a friend making a social visit. It was specifically denied that McClendon threatened Sciortino or took any action which could be construed by a reasonable person to be a threat to his life or safety. The insurance companies for plaintiffs were also identified.

Thereafter, plaintiffs filed an exception of no cause of action and alternatively, a motion to dismiss the reconventional demand and third party petition on the basis that neither was based upon any legal theory under which Oakmont could be damaged by an assault upon one of its employees. Plaintiffs also filed a motion to dismiss the intervention of Sciortino on the basis that it was improper and in violation of art. 1091 of the Louisiana Code of Civil Procedure. After a hearing on plaintiffs’ motions, the trial court granted dismissal of the recon-ventional demand, the intervention and the third party demands. Oakmont and Sciorti-no appeal.

Immediately prior to the hearing on these motions, Oakmont amended its reconven-tional demand and listed economic losses for the alleged tortious activities of LeBlanc, Chaney and McClendon as follows:

“a — Wages paid to Mr. Sciortino during the unnecessary trip to Baton Rouge;
“b — Wages paid to Mr. Sciortino in making an additional trip to Baton Rouge to resolve the matter;
“c — Overheard costs associated with Mr. Sciortino’s trips to Baton Rouge;
“d — Direct costs associated with unnecessary trips by Mr. Sciortino to Baton Rouge including gasoline for the automobile and depreciation of the vehicle;
“e — Time lost by Larry Jamieson, the chief operating officer of the company in New Orleans in dealing with the tortious termination of business relationship created by LeBlanc, Chaney and McClendon;
“f — Loss of profits caused in Oakmont’s offices, in New Orleans, and otherwise, as a result of disruption in normal business activities from the tortious actions of LeBlanc, Chaney and McClendon;
“g — Cost of associating counsel to advise as to methods of resolving controversy with LeBlanc and Chaney.”

Intervenor, Sciortino, also amended to name McClendon and the two insurance companies.

The trial judge stated in his per curiam that the motion to dismiss the reconventional demand was granted based upon the claim’s being “too speculative”, citing several cases.

In the case of Pellegrin v. Hebert, 107 So.2d 853 (La.App. 1st Cir., 1959), this court disallowed plaintiff’s claim for damages for the loss of service of an employee because of tortious conduct of the defendant, reasoning that the claim was too speculative.

In Forcum-James Co., Inc. v. Duke Transportation Co., 231 La. 953, 93 So.2d 228 (1957), plaintiff was under contract with the Louisiana Department of Highways to maintain a bridge. Defendant negligently damaged the bridge and plaintiff sued. The Louisiana Supreme Court held, “It is a basic principle of the law that a tort-feasor is responsible only for the direct and proximate result of his acts and that, where a third person suffers damage by reason of a contractual obligation to the injured party, such damage is too remote and indirect to become the subject of a direct action, ex delicto, in the absence of subrogation.” See also Baughman Surgical Associates, Ltd. v. Aetna Casualty & Surety Co., 302 So.2d 316 (La.App. 1st Cir., 1974).

Appellant is correct in citing Graham v. St. Charles St. R. Co., 47 La.Ann. 1656, 18 So. 707 (1895), as standing for the proposition that an employer may recover under Civil Code art. 2315 for damages it suffers as a result of a tort committed against its employee. However, in order to recover under Graham, supra, and Civil Code art. 2315, the employer must allege that the tortious conduct aimed at the employee was committed for the purpose of or intended to injure the employer. The instant reconventional demand, as amended, contains no such allegations, and is therefore distinguishable from Graham, supra.

For the same reasons given above the third party demand brought by Oak-mont was also dismissed. The intervention filed by Sciortino was incorporated in the reconventional demand; therefore, dismissal of the reconventional demand necessitated dismissal of the intervention. The trial court stated that this would not prevent Sciortino from filing a separate suit for any alleged tort committed against him by plaintiffs.

We find such damages as claimed by defendant Oakmont, and rejected by the trial court, too remote and too speculative and not included within the purview of LSA-C.C. 2315.

For the foregoing reasons, the judgment appealed is affirmed at appellants’ costs.

AFFIRMED.

COVINGTON, J., concurs for reasons assigned.

      . Art. 1091. Third person may intervene
      A third person having an interest therein may intervene in a pending action to enforce a right related to or connected with the object of the pending action against one or more of the parties thereto by:
      (1) Joining with plaintiff in demanding the same or similar relief against the defendant;
      (2) Uniting with defendant in resisting the plaintiffs demand; or
      (3) Opposing both plaintiff and defendant.

      . “Art. 2315. Liability for acts causing damage; survival of action
      “Art. 2315. Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.”


text:
    STANDARD MATERIALS, INC. v. ADMINISTRATOR, DIVISION OF EMPLOYMENT SECURITY, DEPARTMENT OF LABOR.
    No. 14077.
    Court of Appeal of Louisiana, First Circuit.
    April 13, 1981.
    H. Sloan McCloskey, New Orleans, for plaintiff-appellant.
    James A. McGraw and Willie D. Maynor, Dept, of Employment Sec., Baton Rouge, for defendant-appellee.
    Before COVINGTON, CHIASSON and LEAR, JJ.
   LEAR, Judge.

This is an appeal by Standard Materials, Inc. from an adverse judgment by the trial court in twenty consolidated judicial review proceedings. These consolidated proceedings initially arose out of claims filed individually by twenty employees of the appellant, Standard Materials, Inc., for unemployment insurance benefits with the Division of Employment Security, Department of Labor of the State of Louisiana. Claimants were held to be ineligible for unemployment benefits during the period between July 18, 1977, and July 30, 1977, due to their participation in a “labor dispute.” The agency further determined that claimants became eligible for benefits after July 30, 1977, and appellant timely filed an appeal to the appeals referee who, in a hearing conducted on October 13, 1977, upheld the action of the agency. Appellant then appealed that decision to the Board of Review of the Division of Employment Security, which again affirmed the agency’s determination and appellant thereafter sought judicial review. The trial court upheld the Board of Review’s determination, and from that judgment, appellant has taken this appeal.

LSA-R.S. 23:1601, in pertinent part, reads as follows:

“An individual shall be disqualified for benefits:
* * * * * *
“(4) For any week with respect to which the administrator finds that his unemployment is due to a labor dispute which is in active progress at the factory, establishment, or other premises at which he is or was last employed; but such disqualification shall not apply if it is shown to the satisfaction of the administrator that he is not participating in or interested in the labor dispute which caused his unemployment * *

R.S. 23:821(3), which we find to be controlling here, provides that:

“(3) The term ‘labor dispute’ includes any controversy concerning terms or conditions of employment .... or any other controversy arising out of the respective interests of employer and employee

While the record is not clear as to whether claimants were actually members of or represented by a union, the record conclusively indicates that claimants refused to work and began picketing appellant’s place of business on July 18, 1977, because of a controversy concerning their demand for increased pay and other terms of employment. Therefore, we conclude that claimants became unemployed on July 18, 1977, because of a “labor dispute” existing between themselves and appellant. Under the provisions of R.S. 23:1601(4), as long as the claimants’ unemployment was due to the labor dispute they were disqualified for unemployment benefits; and, in order to qualify for such benefits it was encumbent upon them to show to the satisfaction of the administrator that they were not participating in or interested in the labor dispute which caused their unemployment. Elmer Candy Corporation v. Administrator of Employment Security, et al, 286 So.2d 423 (La. App. 1st Cir., 1973); Senegal v. Lake Charles Stevedores, Inc., 250 La. 623, 197 So.2d 648 (La.1967).

The evidence indicates that appellant, sometime after July 18, 1977, hired replacements for the striking employees (claimants), and that these claimants were informed of this on July 22, 1977. Thereafter, and at least through half of July 26, 1977, claimants continued to picket appellant’s place of business. Notwithstanding the fact that appellant had permanently replaced the claimants, under well established federal law, the strikers (claimants) retained their status as employees and must be reinstated upon application as openings arise. National Labor Relations Board v. Fleetwood Trailer Co., Inc., 389 U.S. 375, 88 Sup.Ct. 543, 19 L.Ed.2d 614 (1967). Further appellant’s president, V. J. Scogin, testified that he informed claimants by registered letter and otherwise that they would be rehired as positions became available, and in fact did rehire some of the previously striking employees. Thus, the record indicates that the claimants were not terminated by appellant, and further that they did not resign their employment with appellant.

As provided by LSA-R.S. 23:1634, our judicial review is confined to questions of law; the findings of the Board of Review as to the facts, if supported by sufficient evidence and in the absence of fraud, are conclusive. See also Cox v. Lockwood, 373 So.2d 246 (La.App. 4th Cir., 1979); Robertson v. Gerace, 335 So.2d 102 (La.App. 4th Cir., 1976).

After a full evidentiary hearing, the appeals referee found that the claimants ceased picketing appellant’s plant after July 26, 1977. Both the Board of Review and the district court, having the record of the administrative hearing before them, upheld the appeals referee’s finding that the claimants were not participating in or interested in the labor dispute which caused their unemployment after July 26, 1977.

After reviewing the record below, we find that the evidence clearly supports the referee’s finding. In fact, there is no evidence in the record which would contradict this finding. Thus, because claimants had terminated their participation in the labor dispute prior to August 14, 1977, when they applied for benefits, they are entitled to benefits under the act.

In accordance with R.S. 23:1634, and for the reasons set forth above, the judgment of the district court, upholding the decision of the Board of Review, is affirmed.

AFFIRMED.


text:
    Hilda AUTHEMENT v. SECURITY INDUSTRIAL INSURANCE COMPANY OF DONALDSONVILLE.
    No. 14079.
    Court of Appeal of Louisiana, First Circuit.
    April 13, 1981.
    Joel Hanberry, Houma, for plaintiff and appellant.
    Victor L. Marcello, Donaldsonville, for defendant and appellee.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   EDWARDS, Judge.

Plaintiff, Hilda Authement, appeals a trial court judgment denying her motion for summary judgment and granting the motion for summary judgment of defendant, Security Industrial Insurance Company of Donaldsonville, dismissing plaintiff’s suit at her cost. We affirm.

On February 15, 1978, defendant issued an industrial life insurance policy on the life of Mitchell Paul Authement. Named as beneficiary was the plaintiff. The named insured was listed as being age one although he was actually born December 10, 1977, and was only two months old. The policy provided for $2,500 in funeral insur-anee subject to a clause stating “Except that if the Insured’s age at date of death is less than one year, the death benefit shall be one-half the amount shown above.” The policy also provided for accidental death benefits of $2,500 in the event that the insured should die after age one.

Mitchell Paul Authement died an accidental death on September 5, 1978, at the age of eight months. Defendant paid $1,250 in funeral insurance benefits but relied on the insurance policy’s exclusionary clauses to refuse additional funeral benefits or any accidental death benefits. Plaintiff subsequently brought suit.

Appellant claims that 1) the defendant should be bound by its “admission” that the insured was one year of age, 2) the exclusions were ambiguous and should be construed against defendant, and 3) the exclusions were contrary to statute.

Listing the insured’s age as one on the benefits schedule does not constitute an admission which defendant is estopped to deny. The insured’s exact date of birth was placed by plaintiff on the original application for insurance which was the basis for the whole policy. Likewise, the actual date of death, when the insured was eight months old, was a documented fact submitted to defendant by plaintiff. Plaintiff cannot at once establish decedent’s correct age and rationally argue that defendant cannot rely on that age.

The policy’s age exclusion and benefit limitation were not ambiguous at all. An asterisk clearly connected the amount of funeral insurance to the clause limiting such benefits to half should the insured die before age one. The exclusion prior to one year from accidental death benefits is obvious from reading Part 1 of the policy. While insurance policies will be strictly construed against the party writing them and while exclusions, if ambiguous, will be construed so as to provide coverage, tortured constructions which seize on every word as a possible source of confusion will be dismissed as mere sophistry. The policy in question was clear. We do not find it abstruse.

Appellant urges that LSA-R.S. 22:259(3XB) makes illegal the limiting and exclusionary clauses used. Section (3)(B) prohibits industrial life insurance policies from excluding liability for death except under certain listed conditions of which age is not one. The last paragraph of section (3XB), however, refers to LSA-R.S. 22:253 and makes clear that neither funeral policies nor accidental benefits provisions in industrial life insurance policies are controlled by section (3)(B). Therefore the causes limiting and excluding plaintiff’s recovery were valid.

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

AFFIRMED.


text:
    OUR LADY OF THE LAKE MEDICAL CENTER v. John CROPPER.
    No. 14081.
    Court of Appeal of Louisiana, First Circuit.
    April 13, 1981.
    Rehearing Denied May 18, 1981.
    Writ Denied Sept. 11, 1981.

      Sera H. Russell, III, Baton Rouge, for plaintiff-appellee Our Lady of the Lake Medical Center.
    Walton J. Barnes, Baton Rouge, for defendant-appellant John Cropper.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   PONDER, Judge.

Defendant appealed from a judgment in favor of plaintiff for reimbursement of paid medical expenses.

The issues are: amendment of plaintiff’s petition, conduct of the trial judge, and unjust enrichment.

We reverse and render.

Defendant was injured during the course and scope of his employment with Our Lady of the Lake Medical Center (OLOL). He received benefits, both hospital and medical, from September, 1975 until March, 1977 to a value of $8,800.00. The OLOL accounting office paid bills by issuing checks to the OLOL business office cashier and to defendant’s physicians. Defendant was not billed directly. In July, 1977, OLOL submitted a claim for reimbursement to Insurance Company of North America, (INA). However, pursuant to its policy provisions, the insurer issued a draft in the amount of $7,661.76 to defendant. Defendant cashed the draft and did not pay OLOL. In July, 1979, OLOL filed suit against defendant claiming it was due $7,661.76 on an “open account” for medical services. Defendant filed exceptions of no right and no cause of action and prescription. The trial judge ruled that the indebtedness was not an open account and maintained defendant’s plea of no right and no cause of action. He allowed plaintiff to amend its pleadings to state a cause of action against defendant. Plaintiff then sued for unjust enrichment. Following a trial on the merits, the judge overruled defendant’s exception of prescription and granted judgment in favor of plaintiff on a theory of unjust enrichment.

Defendant claims the trial judge erred in instructing plaintiff to amend his petition to state a cause of action in unjust enrichment, in directing the testimony of the witnesses and in answering counsel’s questions for the witnesses. Defendant’s charges are without merit. The trial court has authority to order a party to amend his petition to state a cause of action in the interest of justice. LSA-C.C.P. Arts. 934, 1631. Plaintiff raised the issue of unjust enrichment at pre-trial conference but neglected to amend his petition prior to trial. The judge did not err in ordering such amendment. There is no evidence the trial court abused its inherent power of supervision in the conduct of the trial. C.C.P. 1631, supra.

Defendant next contends plaintiff has failed to prove the prerequisites for an action in unjust enrichment. We find defendant’s claim has merit. The action of unjust enrichment is based upon the principle that if unjust enrichment of one occurs at the expense or impoverishment of another, the value of enrichment must be restored. LSA-C.C. Arts. 21, 1965, 2293-3000. The jurisprudence requires that as a prerequisite to the action there be: an enrichment, an impoverishment, a connection between the enrichment and resulting impoverishment, an absence of justification or legal cause for the enrichment, and lack of another remedy of law. Minyard v. Curtis Products, Inc., 251 La. 624, 205 So.2d 422 (La.1968).

We find plaintiff has not met this burden. We find both that defendant has not been enriched and that plaintiff had not been impoverished. By law, OLOL is obligated to provide for the medical expenses of its employees injured on the job. LSA-R.S. 23:1203. The expenses incurred by plaintiff and the doctor bills paid by it were in payment of its own obligations and defendant was not required to reimburse plaintiff. It could have protected itself by having insurance to repay it; and from the circumstances it seems that it thought it had that kind of insurance. However, the policy entered into evidence unequivocally provides that it insured defendant, not plaintiff, that the benefits were payable to the defendant, not the plaintiff, and it was not “in lieu of and does not affect any requirement for coverage” for workmen’s compensation insurance. For these same reasons we find that plaintiff has not been impoverished. Defendant was not obligated to repay plaintiff for the workmen’s compensation benefits. INA had no obligation to pay plaintiff; its obligation was to defendant. It is difficult to reason that defendant became required to pay plaintiff from the insurance proceeds. It is true that evidently plaintiff secured and paid for the medical payments insurance coverage for its employees, but the policy provisions prevented it being considered as the type of insurance plaintiff evidently thought it was. Furthermore, medical payment policies may be obtained and often are that are payable without regard to workmen’s compensation benefits. There has been no evidence of any assignment or subrogation agreement to which defendant was a party.

The above reasoning obviates the necessity of considering the other requirements for unjust enrichment for appellant’s other assignments of errors.

For the above reasons, the judgment of the trial court is reversed and it is now ordered, adjudged and decreed that there be judgment in favor of defendant, John Cropper, and against Our Lady of the Lake Medical Center dismissing plaintiff’s suit at plaintiff’s costs.

REVERSED AND RENDERED.

      . C.C.P. Art. 934:
      “When the grounds of the objection pleaded by the peremptory exception may be removed by amendment of the petition, the judgment sustaining the exception shall order such amendment within the delay allowed by the court. If the grounds of the objection cannot be so removed, or if plaintiff fails to comply with the order to amend, the action shall be dismissed.”
      C.C.P. Art. 1631:
      “The court has the power to require that the proceedings shall be conducted with dignity and in an orderly and expeditious manner, and to control the proceedings at the trial, so that justice is done.
      On its own motion the court may, and on request of a party the court shall, order that the witnesses, other than parties, be excluded from the courtroom or from a place where they can see or hear the proceedings, and refrain from discussing the facts of the case with anyone other than counsel in the case. In the interest of justice, the court may exempt any witness from its order. As amended Acts 1966, No. 36 § 1.”

      . It has a policy with another company covering plaintiff’s obligation to pay workmen’s compensation.


author: LOTTINGER, Judge.

text:
    Michelle R. ROGERS v. Irving F. ROGERS.
    No. 14083.
    Court of Appeal of Louisiana, First Circuit.
    April 13, 1981.
    John A. Exnicios, New Orleans, for plaintiff and appellee.

      Roger I. Dallam, Gretna, for defendant and appellant.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   LOTTINGER, Judge.

Is a husband’s retirement pay from the United States Army community or separate property? This is the issue we face on appeal. The issue is not new to Louisiana jurisprudence, but the two circuits previously addressing the question have taken opposite positions. The Third Circuit says retirement pay is community property. Swope v. Mitchell, 324 So.2d 461 (La. App.3rd Cir. 1975) (Marine Corps retirement); Moon v. Moon, 345 So.2d 168 (La. App.3rd Cir. 1977), writs refused, 347 So.2d 250 (La. 1977) (Air Force retirement). The Second Circuit says it is not. DeDon v. DeDon, 390 So.2d 937 (La.App. 2nd Cir. 1980) (Air Force retirement), writs granted February 6, 1981.

The facts are not in dispute and were stipulated basically as follows:

Irving F. Rogers and Michelle R. Naget Rogers were married on February 5,1955 in Braquys, Meuse, France. Mr. Rogers, then a member of the United States Army stationed in France, was a Louisiana domiciliary at the time of the marriage serving with the U. S. Forces. He has never changed his Louisiana domicile.

After a number of transfers over the next 10 years, Mr. Rogers retired from the United States Army in October, 1965, after completing 20 years of service. He was recalled in September, 1966, and was discharged a second time in September, 1968. The parties continued to reside together as man and wife until July, 1976, at which time they became physically separated. Mr. Rogers returned to Louisiana and Mrs. Rogers stayed in Maryland where she has since resided.

A judgment of divorce was granted on August 22, 1978, based upon the parties living separate and apart for a period in excess of two years. During the entire period of the marriage the domicile of Mr. Rogers was located in Louisiana and domicile is not at issue in this case. There was no premarital agreement entered into prior to the marriage.

THE TRIAL COURT DECISION

After reviewing the stipulated facts and the jurisprudence of Louisiana and other states, the trial judge rendered judgment in favor of Mrs. Rogers, decreeing her to be the owner of is/u of each retirement check Mr. Rogers receives. The trial court also determined that Mr. Rogers clears $440.00 per month and that Mrs. Rogers’ share of the previous 23 months had not been paid. She was awarded $2,990.00 as a lump sum and was decreed to be owner of a 13/u portion of every monthly payment made thereafter to Mr. Rogers.

SPECIFICATIONS OF ERROR

Mr. Rogers contends on appeal that the trial court erred in holding that retirement pay is community property and in refusing to refer the partition to a notary.

COMMUNITY PROPERTY

Mr. Rogers argues that military retirement benefits are provided by Congress under its power to raise and support an army. Art. I, Section 8, U. S. Const. He contends that such benefits are federal in nature and that “any conflicting state law must yield to the federal law under the Supremacy Clause of the Constitution.” Art. VI, Clause 2, U. S. Const. He cites with favor the recent United States Supreme Court case of Hisquierdo v. Hisquierdo, 439 U.S. 572, 99 S.Ct. 802, 59 L.Ed.2d 1 (1979), which held that retirement benefits under the Railroad Retirement Act of 1974 (45 U.S. C.A. Section 231 et seq.) cannot be considered community property.

In Hisquierdo, the Supreme Court made abundantly clear the fact that the states, and not the federal government, have the “guiding hand” and “temporal control” over marriage and its incidents. 99 S.Ct. at 808. State family law precepts will be set aside under the supremacy clause only if Congress “has positively required by direct enactment that state law be preempted.” Id. (emphasis added). For state family law to be pre-empted, it must conflict with the “express terms” of a congressional enactment and “sufficiently injure the objectives of the federal program.” Id. 99 S.Ct. at 809. Under this type of analysis, the court determined that the anti-attachment and anti-anticipation section in the Railroad Retirement Act revealed an express congressional intent that railroad retirement benefits be paid only to the employee and not be divided upon termination of the marriage. 45 U.S.C.A. Section 231m. “The critical terms here include a specified beneficiary protected by a flat prohibition against attachment and anticipation.” Id.

Mr. Rogers contends that his retirement benefits are paid under laws administered by the Veterans’ Administration. He notes that the laws regulating veterans’ benefits contain a section almost identical to the section in the Railroad Retirement Act prohibiting assignment, attachment and anticipation. 38 U.S.C.A. Section 3103(a). Under the stipulation of facts made by the parties in this case, there is no indication as to who pays the retirement benefits. The stipulation speaks only of military retirement pay. Mr. Rogers made no showing that he was entitled to veterans’ benefits and produced no check stubs to show where his retirement pay comes from. He merely alleges on appeal that the retirement check is paid by the Veterans’ Administration. However, as Mrs. Rogers points out and as our research confirms, the military retirement benefits such as those received by Mr. Rogers are not administered by the Veterans’ Administration but by the Secretary of the Army. Numerous provisions dealing with military retirement pay for Army regulars and officers appear under Title 10 of the United States Code, which deals with the Armed Forces. Subtitle B of Title 10 concerns the U. S. Army. At least five chapters under Subtitle B of Title 10 relate to retirement requirements, grade and pay. Chapters 363, 365, 367, 369 and 371. Under Chapter 369, 10 U.S.C.A. Section 3966, the Secretary of the Army is required to maintain lists of names of retired officers and enlisted men. Chapter 371 of Title 10 deals with computation of retired pay for Army retirees.

On the other hand, matters handled by the Veterans’ Administration are dealt with in Title 38 of the United States Code. The Veterans Administration handles veterans’ disability and death compensation, veterans’ pensions, veterans’ insurance and other veterans’ benefits. Significantly, none of the provisions concerning VA benefits in Title 38 is based upon a veteran’s eligibility for retirement from the service in which he served. VA benefits, rather, are predicated upon the fact that a person served in the armed forces, not on the fact that a person served in the armed forces long enough to allow him to retire.

We find that the statutory scheme as outlined above shows clearly that military retirement pay, as distinguished from veterans’ benefits, is administered by the secretary of the branch of the service in which the retiree served. In this ease, the benefits are administered by the Secretary of the Army. Of the statutes in Title 10, U.S.C.A., governing army retirement benefits, only one contains a section prohibiting assignment, attachment or anticipation of these benefits. That section, however, does not deal with a retiree’s retirement benefits but with a survivor’s benefits, which are not at issue in this case. 10 U.S.C.A. Section 1450(i). One searches the military retirement statutes in vain to find a section similar to the one relied upon in Hisquierdo to hold that the benefits therein were not community.

We hold, therefore, that Congress has not “positively required by direct enactment” that Louisiana’s community property laws be pre-empted as to the nature of military retirement benefits. The Second Circuit’s reliance on Hisquierdo in DeDon, supra, was, we believe, misplaced. The De-Don decision, as we read it, was based on two propositions:

(1) That Congress provided an anti-attachment and anti-assignment provision in that portion of the military retirement laws dealing with survivor benefit plans; and

(2) That Congress amended the Social Security Act to waive federal immunity in cases involving alimony and child support, but subsequently defined that waiver to preclude cases involving community property claims. See 42 U.S.C.A. Sections 659, 662.

As we noted above, the sections of the military retirement laws dealing with survivor benefit plans are simply inapplicable to this case. There is no survivor benefit plan involved herein. We are dealing, rather, with military retirement benefits paid and payable directly to the retiree, not to the retiree’s survivor. The anti-assignment provisions in the survivor benefit plan laws are simply not relevant.

Additionally, the amendment to the Social Security Act providing a waiver of federal immunity for alimony and child support claims does not even purport to control the community or non-community status of retirement benefits. Admittedly, 42 U.S. C.A. Section 662 states that alimony “does not include any payment or transfer of property or its value by an individual to his spouse or former spouse in compliance with any community property settlement, equitable distribution of property, or other division of property between spouses or former spouses.” If anything, the definition of the word “alimony” shows that Congress intended to leave the determination of community or non-community status of retirement benefits up to the particular federal laws regulating those benefits and to the particular state laws regulating community property. The definition clearly is not a “direct enactment” by Congress concerning the community or non-community nature of all federal retirement benefits.

We therefore reject the reasoning of the DeDon decision as well as the decision from the Alaska Supreme Court upon which De-Don relied. See Cose v. Cose, 592 P.2d 1230 (Alaska 1979). We choose, instead, to follow the lead of the Third Circuit in Moon v. Moon and Swope v. Mitchell, supra, and of other state courts which hold that military retirement benefits attributable to years of the marriage are community property. See, e. g., In re Marriage of Fithian, 10 Cal.3d 592, 111 Cal.Rptr. 369, 517 P.2d 449 (1947), cert. denied 419 U.S. 825, 95 S.Ct. 41, 42 L.Ed.2d 48; Mora v. Mora, 429 S.W.2d 660 (Tex.Civ.App.1968); and In re Marriage of Musser, 70 Ill.App.3d 706, 27 Ill.Dec. 240, 388 N.E.2d 1289 (1979).

We therefore affirm the trial court’s determination that a portion of the military retirement benefit is community and we affirm his award of the lump sum of the payments due and owing to the wife.

MANNER OF PARTITION

Mr. Rogers claims the trial court erred in failing to appoint a notary to divide the community property. He contends that there are other community assets and liabilities besides the retirement benefit which should be identified, inventoried and partitioned according to law. Under La.C.C.P. art. 4605, if the court finds that the plaintiff is entitled to a partition it “shall appoint a notary to make the partition in accordance with the law.” Mr. Rogers asserts that this article mandates that the court appoint a notary to effect the partition.

Mrs. Rogers, however, contends that the only issue before the trial court was the nature and value of the retirement benefit; that Mr. Rogers can have other assets and liabilities partitioned in another proceeding; and, alternatively, that Mr. Rogers is es-topped to bring up the existence of other assets and liabilities because he failed to do so in his answer and other pleadings.

While it is true that Mrs. Rogers’ suit for partition is almost completely directed towards the retirement benefit, her petition alleges that she and Mr. Rogers “acquired community property during their marriage” and that she “is unwilling to continue as owner in indivisión of the property and desires a partition thereof.” She prayed for judgment ordering a partition in kind of the retirement benefit and for appointment of a notary public to make the partition. We do not find it necessary to decide whether, in all partition proceedings, the trial court is required to appoint a notary. We can conceive of cases in which the appointment of a notary would serve no purpose, particularly when the assets to be partitioned are few and the partition itself is uncomplicated. In this case, however, Mrs. Rogers mentioned the existence of community property in her petition and prayed for appointment of a notary to effect the partition of the retirement benefit. Mr. Rogers claims that all of the community assets and liabilities should be included in the partition.

To avoid a piecemeal partition and promote efficiency and economy in the administration of justice, we remand this case to the trial court for the purpose of appointing a notary to effect a partition of all community assets in accordance with law. See Lester v. Lester, 245 So.2d 478 (La.App.3rd Cir. 1971), writ refused, 258 La. 366, 246 So.2d 684.

Therefore, for the above and foregoing reasons, the decision of the trial court regarding the community nature of the retirement benefits is affirmed. The case is remanded for the purpose of appointing a notary to effect a partition of all community assets in accordance with law. Costs of this appeal are to be paid by the appellant.

AFFIRMED AND REMANDED.

      . The formula used by the court, which is not in dispute, is based on a fraction, the numerator of which is the number of years the parties were married while Mr. Rogers was in the military and the denominator of which is the number of years Mr. Rogers was in the military. The fraction is l3te. This amount is community property and, as co-owner of one-half of the community, Mrs. Rogers is entitled to one-half of 13/m which equals 13/«.

      . 45 U.S.C.A. Section 231m provides:
      “Notwithstanding any other law of the United States, or of any state, territory or the District of Columbia, no annuity or supplemental annuity shall be assignable or be subject to any tax or to garnishment, attachment, or other legal process under any circumstances whatsoever, nor shall the payment thereof be anticipated.”

      . 38 U.S.C.A. Section 3101(a) provides, in pertinent part:
      “Payments of benefits due or to become due under any law administered by the Veterans’ Administration shall not be assignable except to the extent specifically authorized by law, and such payments made to, or on account of, a beneficiary shall be exempt from taxation, shall be exempt from the claim of creditors, and shall not be liable to attachment, levy, or seizure by or under any legal or equitable process whatever, either before or after receipt by the beneficiary.”

      . 10 U.S.C.A. Section 1450(i) provides:
      “An annuity under this section is not assignable or subject to execution, levy, attachment, garnishment, or other legal process.”

      . 42 U.S.C.A. Section 659(a) provides:
      “Notwithstanding any other provision of law, effective January 1, 1975, moneys (the entitlement to which is based upon remuneration for employment) due from, or payable by, the United States or the District of Columbia (including any agency, subdivision, or instrumentality thereof) to any individual, including members of the armed services, shall be subject, in like manner and to the same extent as if the United States or the District of Columbia were a private person, to legal process brought for the enforcement against such individual of his legal obligations to provide child support or make alimony payments.”
      42 U.S.C.A. Section 662 in pertinent part provides that “Alimony”:
      “... does not include any payment or transfer of property or its value by an individual to his spouse or former spouse in. compliance with any community property settlement, equitable distribution of property, or other division of property between spouses or former spouses.”


text:
    Richard STREB v. ABRAMSON-CARO CLINIC, a Professional Medical Corporation.
    No. 14103.
    Court of Appeal of Louisiana, First Circuit.
    April 13, 1981.

      Gordon A. Pugh, Gregory A. Pletsch, Breazeale, Sachse & Wilson, Baton Rouge, for plaintiff-appellant.
    Thomas E. Balhoff, Baton Rouge, for defendants-appellees, Dr. Steven N. Abram-son and Dr. Richard Caro.
    I. Jay Krieger, Krieger & Krieger, New Orleans, Jess J. Waguespack, Talbot, Sotile, Carmouche, Marchand & Marcello, Donald-sonville, for defendant-appellee, Abramson-Caro, a Professional Medical Corp.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   PONDER, Judge.

Plaintiff appealed from a judgment sustaining defendants’ exception of no cause of action.

The sole issue is the sufficiency of plaintiff’s allegations.

We reverse and remand.

Plaintiff is a minority shareholder and former officer, director and employee of defendant professional medical corporation. By majority vote, the other two shareholders (defendants, Drs. Abramson and Caro) terminated plaintiff’s employment with the corporation and removed him from the Board of Directors. Plaintiff sued for the involuntary dissolution of the corporation. The trial court sustained defendants’ exception of no cause of action.

Plaintiff claims the allegations of fact in his petition state a cause of action for the involuntary dissolution of the corporation.

Plaintiff’s petition reads in part:

U* * *
“10.
At a meeting of the shareholders held on December 18, 1979, your petitioner was removed from the Board of Directors of the Corporation upon the two-thirds vote of the shareholders. Doctors Abramson and Caro voted in favor of said removal and your petitioner dissented therefrom.
“11.
The objects and purposes for which the Corporation was formed was to jointly engage in the practice of medicine.
* * * * * *
“14.
By virtue of the termination of employment of your petitioner and his removal from the Board of Directors, the accomplishment of the objects and purposes for which said Corporation was formed has failed, been abandoned, and become impracticable.
“15.
The Corporation’s assets include medical equipment, a lease of office space, furniture, supplies, a corporate pension plan providing retirement income and other fringe benefit plans which were purchased in part from fees received by your petitioner for the rendition of professional services. Said corporate pension plan and fringe benefit plans were received in lieu of compensation to petitioner and other corporate employees principally for tax reasons.
“16.
By virtue of the actions of Abramson and Caro as Directors of the Corporation, your petitioner stands to forfeit 50% of his accrued benefits under the pension plan and all rights under other fringe benefit plans. This forfeiture will result in the unjust enrichment of the defendants herein, notwithstanding the fact that that forfeited amount represents the earnings of your petitioner.
“17.
The Corporation’s assets also include a substantial amount of accounts receivable resulting from professional services rendered by your petitioner, Abramson and Caro. The collection of these receivables represents income of the Corporation for past professional services of petitioner and others.
“18.
By virtue of the actions of Abramson and Caro as directors of the Corporation, your petitioner will not recieve (sic) his share of said receivables when ultimately collected by the Corporation. Rather, your petitioner’s share of said receivables will inure to the benefit of the defendants herein, resulting in their unjust enrichment at the expense of your petitioner.
“19.
By virtue of their conduct as directors and shareholders of the Corporation, Abramson and Caro have knowingly, purposefully and unfairly conducted themselves, which conduct has been seriously prejudicial to the rights and interests of your petitioner as minority shareholder.
“20.
It is in the beneficial interest of the shareholders that the Corporation be dissolved so that the directors and shareholders of the Corporation can no longer frustrate your petitioner’s ability to realize the true value of his contribution of services to the Corporation and the enhancement of corporate assets resulting therefrom.
“21.
There is no readily available market for the stock of your petitioner.
“22.
The Corporation is in violation of Louisiana law in that there are fewer qualified directors than is required by Louisiana law.
“23.
The Corporation, through its officers and employees, have illegally invaded the pricacy (sic) of your petitioner by repeatedly opening U.S. mail addressed to your petitioner.
“24.
At the request of the Corporation, your petitioner was placed on a leave of absence, effective December 1, 1979.
“25.
The Corporation, despite demand therefore, has refused to pay your petitioner compensation for the period December 1, 1979 through January 15, 1980, and termination pay, all of which conduct is in violation of established employment practices of the Corporation.
“26.
The Corporation has discriminatorily and unfairly terminated, without notice, the payment of premiums on policies of insurance providing health and disability benefits to your petitioner. As a result, in order to prevent cancellation of this insurance coverage, your petitioner was required to assume payment of this corporate debt, for which he has received no reimbursement.
“27.
In order to prohibit and terminate these ultra vires acts which the Corporation has been guilty of, it is necessary that the Corporation be dissolved.
* * * * * *
“30.
Abramson and Caro have appropriated to their own use (to the exclusion of your petitioner) all assets of the corporation and they should be condemned to pay a reasonable rental value for all such assets.
“31.
LSA R.S. 12:905B provides that petitioner as a shareholder who is a natural duly licensed to practice medicine in this state ‘shall be entitled ... to participate in the Corporation’s earnings.’ All t> defendants named herein are denying titioner this valuable right.
“WHEREFORE, petitioner prays:
“(1) For judgment placing the Corporation in involuntary judicial liquidation pursuant to the orders of this Honorable Court;
“(2) For appointment and confirmation of Richard Streb as judicial liquidator of the affairs of the Corporation upon his giving of bond as fixed by this Honorable Court;
“(3) For judgment in such sums against the defendants as the liquidation shall show to be due and owing by the defendants in order to entitle petitioner to his rightful share of the Corporation’s earnings.
“(4) For judgment in such sums against the defendants as shall be due and owing in order to compensate petitioner for the reasonable rental value for the use by the defendants of petitioner’s share of the Corporation’s assets.”

Plaintiff claims by virtue of his withdrawal from professional practice and removal from the Board of Directors, the objects and purposes for which the Corporation was formed have failed, been abandoned and become impracticable. Plaintiff’s claim is without merit. By his own statement, the purpose for which the Corporation was formed was the joint practice of medicine. The Corporation is fulfilling this purpose through the services of Drs. Abramson and Caro. The interpretation that the purpose falls when petitioner is not participating in the corporation is too narrow.

Plaintiff next contends Drs. Abramson and Caro as directors of the corporation and majority shareholders have breached their fiduciary duty to him and are guilty of such ultra vires acts as to warrant dissolution of the corporation. The petition fails to show Drs. Abramson and Caro have been guilty of any ultra vires acts; the majority shareholder’s actions in removing plaintiff from the Board of Directors and terminating his employment were not outside the corporate powers. The allegations of breach of fiduciary duty to a minority stockholder are insufficient to justify the dissolution of the corporation. This problem of appropriate relief for a minority stockholder in a close corporation has been given different remedies in different states, and has been the subject of treatment by authors and of the law reviews. See O’Neal, Oppression of Minority Stockholders (1975) especially §§ 7:13-7:15; Illiquidity and Exploitation: A Proposed Statutory Solution to the Remaining Close Corporation Problem, 63 Va.L.R. 1 (Feb. 1977) especially chart on pages 64-75; Prentice, Winding Up on the Just and Equitable Ground: The Partnership Analogy, 89, The Law Quarterly Review 107 (Jan. 1973); Note, Close Corporations: Strict Good Faith Fiduciary Duty Applied to Controlling Stockholders, 38 La.L.R. 214 (1977). However, our grounds for the drastic remedy of judicial declaration of death of a corporation are limited and specific.

We find no error in the court’s sustaining defendants’ exception of no cause of action for the involuntary dissolution of the corporation.

However, Article 934 of the Code of Civil Procedure requires the court to order an amendment to the pleadings if the objection may be removed. We are not convinced that the plaintiff can not amend his pleadings so as to be entitled to some relief. The trial court should require the amendment if plaintiff elects to do so.

For these reasons, the dismissal of the case is reversed and the case is remanded for further proceedings not inconsistent with this opinion. Appellees are to bear the costs of this appeal.

REVERSED AND REMANDED.

      . LSA-R.S. 12:143:
      “A. The court may entertain a proceeding for involuntary dissolution under its supervision when it is made to appear that:
      (1) The corporate assets are insufficient to pay all just demands for which the corporation is liable, or to afford reasonable security to those who may deal with it; or
      (2) The objects of the corporation have wholly failed, or are entirely abandoned, or their accomplishment is impracticable; or
      (3) It is beneficial to the interests of the shareholders that the corporation should be liquidated and dissolved; or
      (4) The directors are deadlocked in the management of the corporate affairs, and the shareholders are unable to break the deadlock; or
      (5) The shareholders are deadlocked in voting power, and have failed, for a period which includes at least two consecutive annual meeting dates, to elect successors to directors whose terms have expired or would have expired upon the election of their successors; or
      (6) The corporation has failed, neglected, or refused, without justifiable cause, to commence business within a period of one year from the date of its incorporation, or, after commencing business, has suspended business for at least one year, and has no real intention of commencing or resuming business; or
      (7) The corporation has been guilty of gross and persistent ultra vires acts; or
      (8) Judgment has been entered annulling, vacating or forfeiting the corporation’s articles and franchise in accordance with the provisions of R.S. 12:163; or
      (9)(a) A receiver has been appointed under R.S. 12:151 to take charge of the corporation’s property, and either (b) there is no reasonable prospect of return of control of the corporation to its shareholders within a reasonable time or (c) the business of the corporation is operating at a loss and there is no reasonable prospect of restoring it to profitable operation within a reasonable time.”


text:
    PAULINE B. GUENOIT v. Donald GUENOIT.
    No. 14324.
    Court of Appeal of Louisiana, First Circuit.
    April 13, 1981.
    Cleveland J. Marcel, Jr., Houma, for plaintiff and appellee.
    Keith M. Whipple, Houma, for defendant and appellant.
    Charles Gary Blaize, Houma, appointed ad hoc for defendant.
    Before ELLIS, COLE and WATKINS, JJ.
   WATKINS, Judge.

ON RULE TO SHOW CAUSE

This is an appeal from an alimony judgment read, rendered and signed August 25, 1978. The defendant, Donald Guenoit, appealed, and the order for appeal was signed by the trial court on December 17, 1980.

This court, sua sponte, has ordered the defendant to show cause why the appeal should not be dismissed because it was not timely obtained.

Counsel for defendant-appellant takes the position that no notice of judgment in the trial court was ever given. The delay for taking an appeal had clearly expired at the time the appeal order was signed, if notice of judgment was given. LSA-C.C.P. arts. 1974, 2087, 2123.

We have carefully examined the record, and find that notice of the judgment appealed from was properly furnished all counsel of record on August 29, 1978.

Accordingly, we dismiss the appeal, as this court never acquired jurisdiction, the delay for taking an appeal having expired. The costs of the appeal are assessed against defendant.

APPEAL DISMISSED.


text:
    Frank CACIOPPO v. HANOVER INSURANCE COMPANY et al.
    No. 14389.
    Court of Appeal of Louisiana, First Circuit.
    April 13, 1981.
    Iddo Pittman, Jr., Hammond, for defendant-relator.
    Curtis M. Baham, Jr., Hammond, for plaintiff-respondent.

      Before LOTTINGER, EDWARDS and PONDER, JJ.
   PONDER, Judge.

This case is before the court on an application for writs of prohibition and mandamus to order the trial judge to grant a trial by jury.

Plaintiff’s petition for damages resulting from an automobile accident on August 22, 1978, was filed on December 13, 1978. Applicant’s answer was filed on March 9, 1979. Plaintiff filed an amended and supplemental petition on September 27, 1979. Applicant filed a supplemental and amending answer that alleged that plaintiff’s injuries were the result of an accident that occurred on December 13, 1973, not August 22, 1978; it made no reference to and did not answer the allegations of the amended and supplemental petition of September 27, 1979. The court permitted the filing of the supplemental and amending answer but denied the request for a trial by jury contained in it as not being timely filed. The court also denied the jury trial after hearing of a rule. We issued an alternative writ to the trial court ordering that the trial court grant a jury trial or show cause. Plaintiff has filed a brief in opposition to the granting of the writ. The trial court has inserted reasons for judgment into the record and ordered the record sent to us.

The issue is the timeliness of the request for a jury trial.

We make the writs peremptory. There are two reasons to support this conclusion. First, Article 1732 of the Code of Civil Procedure governs the granting of a jury trial:

“A party may demand a trial by jury of any issue triable of right by a jury in a pleading filed not later than ten days after the service of the last pleading directed to such issue.”

Two cases interpreting this article, we find to be controlling: Barberito v. Green, 275 So.2d 407 (La.1973) and Chen v. Hospital Affiliates of Baton Rouge, 367 So.2d 1197 (La.App. 1st Cir. 1978).

Furthermore, we find in the record no answer by this defendant to plaintiff’s amended and supplemental petition of September 27, 1979. Because of this the ten days of C.C.P. Art. 1732 has not yet begun to run.

For these reasons the writs are made peremptory and the case is remanded to be reassigned for trial by jury.

WRITS MADE PEREMPTORY; REMANDED FOR FURTHER PROCEEDINGS.


text:
    REED'S ELECTRIC COMPANY v. ROYAL FURNITURE COMPANY OF BATON ROUGE, INC.
    No. 14424.
    Court of Appeal of Louisiana, First Circuit.
    April 13, 1981.

      Gregory M. Eaton, Baton Rouge, for plaintiff-appellee Reed’s Elec. Co.
    Walter R. Rrousel, Jr., and G. Thomas Arbour, Baton Rouge, for defendant-appellant Royal Furniture Co. of Baton Rouge.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   EDWARDS, Judge.

Reed’s Electric Company (Reed’s), defendant-garnishee in an earlier proceeding, brought suit against Royal Furniture Company of Baton Rouge, Inc. (Royal), plaintiff in the earlier suit, seeking to vacate and set aside a judgment in Royal’s favor.

Judgment in favor of Reed’s and vacating the prior judgment was signed on October 8, 1980. Royal subsequently filed a motion for new trial. Following a hearing on November 21, 1980, the motion for new trial was denied for oral reasons assigned by the court. On January 27,1981, Royal obtained an order for appeal. Reed’s moves for dismissal of the appeal as untimely.

LSA-C.C.P. Art. 2087 provides in pertinent part:

“Except as otherwise provided in this Article or by other law, an appeal which does not suspend the effect or the execution of an appealable order or judgment may be taken within sixty days of:
(1) The expiration of the delay for applying for a new trial, as provided by Article 1974, if no application has been filed timely;
(2) The court’s refusal to grant a timely application for a new trial, if the applicant is not entitled to notice of such refusal under Article 1914; or
(3)The date of the mailing of notice of the court’s refusal to grant a timely application for a new trial, if the applicant is entitled to such notice under Article 1914.”

LSA-C.C.P. Art. 1914 provides:

“When a case has been taken under advisement by the court for the purpose of deciding whether an interlocutory order or judgment should be rendered, the clerk shall make an entry in the minutes of the court of any such interlocutory order or judgment rendered thereafter.
If a written request for notice of the rendition of the interlocutory order or judgment in such a case has been filed, the clerk shall mail notice thereof to the party requesting it; and the latter shall have ten days from the date of the mailing of the notice to take any action or file any pleadings he deems necessary, except as provided in the next paragraph.
If the interlocutory order or judgment is one refusing to grant a new trial, the delay for appealing commences to run only from the date of the mailing of such notice, as provided in Articles 2087 and 2123.
The provisions of this article do not apply to an interlocutory injunctive order or judgment.”

A review of the record indicates that Royal filed no written request for notice and that the denial of Royal’s motion for new trial was by oral decision and was not taken under advisement.

There is no requirement that an interlocutory judgment denying an application for a new trial be in writing or signed by the trial court. Domino v. Striplen, 366 So.2d 1035 (La.App. 1st Cir. 1978), writ denied 369 So.2d 457 (La.1979); Simon v. Lumbermens Mutual Casualty Company, 138 So.2d 465 (La.App. 3rd Cir. 1962).

Since Royal was not entitled to written notice and since the minutes of the district court clearly show denial of the motion for new trial, it is evident that January 20, 1981, was Royal’s last day to appeal. This deadline was missed by seven days.

For the foregoing reasons, it is hereby adjudged, ordered and decreed that the appeal of Royal Furniture Company of Baton Rouge, Inc., be and the same is, hereby dismissed. All costs, both trial and appellate, are to be paid by Royal Furniture Company.

APPEAL DISMISSED.