text:
    BOARD OF COMMISSIONERS OF the PORT OF NEW ORLEANS, et al. v. LOUISIANA COMMISSION ON ETHICS FOR PUBLIC EMPLOYEES.
    No. 14846.
    Court of Appeal of Louisiana, First Circuit.
    May 25, 1982.
    Rehearing Denied July 13, 1982.

      Charles M. Lanier, New Orleans, for plaintiff-appellant Board of Com’rs of the Port of New Orleans, Leander N. Bubrig, J. W. Clark, G. Frank Purvis, Jr., C. Alvin Bertel, Jr., Norman R. Kerth, Roy J. Gross, Joseph J. Krebs, Jr., and Michael J. Molony, Jr.
    Mack E. Barham, David A. Marcello, Jacob J. Meyer, New Orleans, for Joseph C. Domino.
    Walter J. Leger, Jr., New Orleans, for George J. Schiro.
    R. Gray Sexton, Baton Rouge, for defendant-appellee Com’n on Ethics for Public Employees.
    David Williams, Asst. Atty. Gen., Baton Rouge, for William J. Guste, Jr., Atty. Gen. for the State of La.
    - Ronald G. Coleman, Baton Rouge, for amicus curiae.
    Before LEAR, CARTER and LANIER, JJ.
   LANIER, Judge.

This is a suit for declaratory judgment and preliminary and permanent injunctive relief filed by the Board of Commissioners of the Port of New Orleans (hereinafter referred to as the Dock Board) and its seven commissioners, individually, against the Commission on Ethics for Public Employees (hereinafter referred to as Ethics Commission) seeking to stop the Ethics Commission from conducting private investigations of the business affairs of the Dock Board members on the grounds that the Code of Governmental Ethics of the State of Louisiana (hereinafter referred to as the Code), La.R.S. 42:1101 et seq., is not applicable to the individual Dock Board members. The Ethics Commission filed a dilatory exception of prematurity and peremptory exceptions of no right of action and no cause of action. The declinatory exception of prematurity asserts that the Code is applicable to the Dock Board members and that they have failed to exhaust their administrative remedies. The peremptory exception of no cause of action alleges that the petition failed to state facts supporting the conclusion that the challenged provisions of the Code were unconstitutional or why the plaintiffs were exempt from the provisions of the Code. The exception of no right of action alleges that the Dock Board as a legal entity had no justiciable interest in this litigation because the Code is only applicable to the individual members of the Dock Board. The trial judge fixed the hearing on these exceptions on the same day as the trial of the preliminary injunction, but tried the exceptions first. After hearing evidence on the exceptions, the trial judge sustained the exception of prematurity and the exception of no right of action and vacated the rule for the preliminary injunction. Because of his rulings on the exceptions of prematurity and no right of action, the trial judge determined there was no necessity to rule on the exception of no cause of action. The Dock Board was cast for all costs of the proceedings. The Dock Board and its members took this devolutive appeal. The Ethics Commission answered this devolutive appeal seeking damages for frivolous appeal.

I. FACTS

By letter dated December 17, 1979, the Louisiana Commission on Governmental Ethics (the predecessor of the present Commission on Ethics for Public Employees) advised the Executive Director and General Manager of the Dock Board of its rendition of Opinion No. 37 and transmitted a copy of this opinion. Opinion No. 37 interpreted the existing Code of Ethics as prohibiting members of State Boards and Commissions from rendering goods and services on a contractual basis to firms doing business with the Board or Commission upon which the individual members served and further prohibited members of State Boards and Commissions from doing business with or contracting with firms or businesses which conducted operations governed or regulated by the Board or Commission upon which the individual member served. By letter dated February 8,1980, the Louisiana Commission on Governmental Ethics advised the Executive Director and General Manager of the Dock Board that it was “firmly of the opinion that the Board of Commissioners of the Port of New Orleans is governed by the expressions of the Commission contained in Opinion No. 37 and that members of the Board should be advised accordingly.” By resolutions dated March 27, 1981, the Louisiana Commission on Ethics for Public Employees directed its Executive Secretary to conduct private investigations of the seven individual commissioners of the Dock Board to determine if they, or corporations or partnerships in which they had a substantial interest, were rendering services to persons who had or were seeking contractual or other business or financial relationships with the Dock Board or were engaged in or seeking contracts with individuals or corporate businesses which were regulated by the Dock Board in possible violation of La.R.S. 42:1111 C(2)(d) and La.R.S. 42:1116. This suit followed.

II. EXCEPTION OF PREMATURITY

The Ethics Commission with its exception of prematurity claims that since it has only authorized the Executive Secretary to conduct a private investigation into possible violations of the Code, and has not made any formal findings or instituted disciplinary actions, that the plaintiffs have not exhausted their administrative remedies and these proceedings are premature, citing State Mineral Board v. Louisiana Commission on Governmental Ethics, 367 So.2d 1188 (La.App. 1st Cir. 1978), writs refused (1978). In the Mineral Board case, this court observed at page 1191 of the Southern Reporter, as follows:

“The Commission is exercising its statutory power to hold an investigation. That the investigation may lead to the possibility of a disciplinary hearing if violations of the Code of Ethics are found, is insufficient basis for an injunction against that investigatory hearing. The contentions of no adequate remedy, of irreparable harm and of vain and useless procedure are therefore without basis as applied to an investigatory hearing. It is conceivable that the Commission might decide that the conduct does not constitute a violation and so end the controversy.”

The Dock Board members contend that the Code is not applicable to them and that the private investigations of them are not authorized by law. Article X, Section 21 of the Louisiana Constitution of 1974 mandates that “The legislature shall enact a code of ethics for a11 officials and employees of the state and its political subdivisions.” (Emphasis added). Article VI, Section 44 of the Louisiana Constitution of 1974 defines a political subdivision as any “unit of local government, including a school board and a special district, authorized by law to perform governmental functions.” In paragraph one of its petition in the instant case, the Dock Board alleges (and thus acknowledges) that it “is the instrument of local. government of the State of Louisiana that is charged with the regulation and the maintenance and development of the commerce and traffic of the port and harbor of New Orleans, within the parishes of Orleans, Jefferson and St. Bernard.” In the case of Board of Commissioners of Port of New Orleans v. Splendour Shipping & Enterprises Company, Inc., 273 So.2d 19 (La.1973) the Dock Board alleged that it was an agency of the State of Louisiana and claimed sovereign immunity from suit in tort. At page 20 of the Southern Reporter, the Supreme Court of Louisiana defined the status of the Dock Board as follows:

“The Board is a State agency carrying on a public business — the operation of the Port of New Orleans. It is given the complete power to operate and regulate the port, wharves, landings, buildings, to expropriate, to legislate, to maintain a police force. R.S. 34:21-44. Its powers are derived from the legislature and the Constitution. It is not ‘the State of Louisiana,’ but is part of the State, and it is an agency of the State.”

The Code of Governmental Ethics, La.R.S. 42:1101, et seq., is specifically designed to establish a standard of ethical conduct for “officials and employees of this state and its political subdivisions,...” A political subdivision is defined therein as “any unit of local government, including a special district, authorized by law to perform governmental functions.” R.S. 42:1102(17). A governmental entity for purposes of the Code is “the state or any political subdivision which employs the public employee or employed the former public employee or to which the elected official is elected, as the case may be.” R.S. 42:1102(12). A public employee is defined as “anyone, whether compensated or not, who is: (a) An administrative officer or official of a governmental entity who is not filling an elective office.” or “(b) Appointed by any elected official when acting in an official capacity, and the appointment is to a post or position wherein the appointee is to serve the governmental entity or an agency thereof, either as a member of an agency, or as an employee thereof.” or “(c) Engaged in the performance of a governmental function.” R.S. 42:1102(18). An agency for purposes of the Code is defined as “a department, office, division, agency, commission, board, committee, or other organizational unit of a governmental entity.” R.S. 42:1102(2). It is clear from these definitions contained in the constitutional and statutory law of Louisiana that the ethical standards for public servants contained in the Code are applicable to the Dock Board commissioners.

The Dock Board and its members argue that because it is a deep water port commission and because the definition of a deep water port commission is separately provided for in Article VI, Section 44(7) of the Louisiana Constitution of 1974 that it is not a political subdivision of the State of Louisiana as defined in Article VI, Section 44(2) and the Code. This argument is without, merit. Deep water port commissions are defined in Article VI, Section 44(7) as those “within whose territorial jurisdiction exist facilities capable of accommodating vessels of at least twenty-five feet of draft and of engaging in foreign commerce.” This definition has nothing to do with the Dock Board’s status as a political subdivision of the State of Louisiana for purposes of the local government article. The purpose of this definition is to show which port commissions are entitled to the benefits of the special provisions on deep water ports contained in Article VI, Section 43 of the Louisiana Constitution of 1974, i.e., the requirement of a “super, majority” two-thirds vote of each house of the legislature in order to modify, amend or abolish the structure and organization, powers and functions and jurisdiction of deep water ports.

The Dock Board and its members argue that it is not a political subdivision of the State and is autonomous because its organization and structure, powers and functions, jurisdiction and membership were ratified and confirmed in a separate part of the local government article in Article VI, Section 43. This argument is without merit. Deep water port commissions and districts were dealt with generally in Article VI, Section 43, Part IV, and not individually. A review of the 1974 Constitution shows that the Constitutional Convention removed all specific provisions dealing with political subdivisions, including deep water ports, from the Constitution and placed them in the statutory law. The particular provisions of the Louisiana Constitution of 1921 pertaining to the Dock Board were made statutory by Article XIV, Section 19 of the Louisiana Constitution of 1974. They were thus de-constitutionalized rather than made autonomous. Their structure and organization, powers and functions, jurisdiction and membership may be modified by legislative action, albeit by a “super majority” vote. They do not have the organization and structure protection from legislative acts that home rule cities and parishes have pursuant to Article VI, Section 6. Placement in a separate part of the local government article did not make deep water ports autonomous anymore than it made levee districts autonomous by being placed in Part III of the article. Deep water ports were placed in a separate part of the article because the Constitutional Convention was aware of the importance of these ports to the economy of the State of Louisiana and determined as a matter of policy their existence should be stabilized to a greater degree than the ordinary political subdivision by requiring a “super majority” two-thirds vote of the elected members of each house to affect their organization and structure, powers and functions, territorial jurisdiction and membership. Article VI, Section 43, Part IV, clearly did not have the purpose of giving deep water ports a status of something other than a political subdivision of the State of Louisiana.

The Dock Board and its members argue that since the language “Subject to and not inconsistent with any provision of this Constitution, ...” was not attached to the provisions pertaining to deep water ports in Article VI, Section 43, and was specifically rejected by the Constitutional Convention, that deep water ports are not subject to the provisions of Article X, Section 21, mandating a Code of Governmental Ethics for all officials and employees of the State and its political subdivisions. This argument is without merit. The fact that this amendment failed does not preclude the application of Article X, Section 21. The provisions of Article VI, Section 43, dealing with deep water ports, with the clause in question or without it, must be read in pari materia with Article X, Section 21. Central Louisiana Electric Company v. Louisiana Public Service Commission, 251 La. 532, 205 So.2d 389 (1967); Sciambra v. Edwards, 270 So.2d 167 (La.App. 1st Cir. 1972). Since Article VI, Section 43 by its language does not preclude the application of Article X, Section 21, then Article X, Section 21 is applicable. If the Dock Board’s argument prevails, the Code would not be applicable to the legislative branch of government or the legislative auditor, the executive branch of government, including the Governor, Lieutenant Governor, Secretary of State, Attorney General, Treasurer, Commissioner of Agriculture, Commissioner of Insurance, Commissioner of Elections and the Public Service Commission, the District Attorneys, Sheriffs, Clerks of Court and Coroners in the judicial branch of government, Assessors, Wildlife and Fisheries Commission, Forestry Commission, State Civil Service Commission and Registrar of Voters, because the clause in question is not attached to any of these provisions.

The Dock Board and its members contend that La.R.S. 34:2 is the exclusive procedure that can be used for the disciplining of individual Dock Board members and thus the Code is inapplicable. That provision of the law provides in pertinent part, as follows:

“ * * *No member thus appointed shall be removed except for cause on charges preferred against him in writing by the attorney general and after public hearing and proof of the sufficiency of the charges to justify his removal, before a commission of three disinterested citizens residing within the jurisdictional area of this port, one to be appointed by the governor, one to be appointed by the president of Tulane University of Louisiana, and one to be appointed by the president of Loyola University in New Orleans; however, any member so removed shall have the right to test in the courts the sufficiency of the charges and the evidence in support of the charges.”

This provision applies when a Dock Board member is removed without consent from his position. By its own language the provision does not apply in a disciplinary situation where the contemplated action is something less than removal. This law can be construed compatibly with the Code very simply by holding that if just cause for removal exists under the Code, this is the procedure to follow. If the contemplated disciplinary action is something other than removal, the procedures in the Code are applicable. State in Interest of Sapia, 397 So.2d 469 (La.1981).

The Dock Board and its members argue that the Code is not applicable because any legislative act affecting the Dock Board membership must be passed by a two-thirds vote of the elected members of both houses of the Louisiana legislature. A review of the legislative history of Act 443 of 1979, R.S. 42:1101 et seq., shows that it was approved by a vote of 96-2 in the House of Representatives and 37-0 in the Senate. Further, the Code controls the conduct of the individual members of the Dock Board and does not affect the structure or organization of the Dock Board membership as established by law.

The case of Louisiana Milk Commission v. Louisiana Commission on Governmental Ethics, 298 So.2d 285 (La.App. 1st Cir. 1974) is not applicable to the exception of prematurity. In that case the Ethics Commission had completed its private investigation and had issued a formal opinion mandating that the four industry members of the Milk Commission must either resign or divest themselves of any economic interest in the dairy industry, or face a formal public hearing to remove them from office. In the instant case, the Ethics Commission has only commenced a private investigation and has rendered no formal opinion nor mandated any corrective or disciplinary action. The Mineral Board case is controlling and this suit is premature.

For the reasons assigned above, it is our opinion that the Code of Governmental Ethics is applicable to the Dock Board members and that the trial judge was correct in sustaining the exception of prematurity. The judgment in that respect will be affirmed.

III. EXCEPTION OF NO RIGHT OF ACTION

La.R.S. 34:1(A) dealing with the membership of the Dock Board, in pertinent part, provides that “All members shall be experienced in the commerce or industry, or both, of the port area, and shall otherwise possess the qualifications prescribed by law.” The Dock Board asserts that because of the scope of its activities, applying Opinion No. 37 literally to its individual members would make it impossible to find persons experienced in the commerce or industry of the port area who do not do business with a person or corporation that does business with it or who is not regulated or controlled by it. To support this contention, the Dock Board introduced evidence that the Port of New Orleans handles 50% of the gross product of the metropolitan New Orleans area, that the Port of New Orleans handles 10% of the gross product of the State of Louisiana, and that the Port of New Orleans provides 20% of the jobs in the New Orleans metropolitan area. Evidence was also presented indicating that the Port of New Orleans does business with all of the banks and utilities in the New Orleans metropolitan area. Testimony was given by members of some of the Dock Board nominating organizations that the literal implementation of Opinion No. 37 with reference to the Dock Board would make it impossible to secure persons who possessed the statutorily required qualifications to serve on the Board. The Dock Board attempted to introduce additional evidence, but was prohibited from doing so by various rulings of the trial judge.

It is our opinion that if rulings of the Ethics Commission make it impossible for a political subdivision of the State of Louisiana to secure members who have the statutory qualifications required by law, the political subdivision will be rendered incapable of performing the functions required of it by law. In such a circumstance, the political subdivision may have a right of action to contest these rulings. However, we are unable to make such a determination in this case at the present time because the Ethics Commission merely proposes to conduct a private investigation of the activities of the individual members of the Dock Board. It has not rendered any rulings with reference to these activities or instituted or recommended disciplinary action. In this posture, it is our opinion that the trial judge acted prematurely in sustaining the exception of no right of action and his judgment in this regard is reversed. We do not overrule the exception of no right of action, but merely reserve the right to the Dock Board and the Ethics Commission to relitigate this issue at some future time, should it be necessary.

IV. EVIDENTIARY RULINGS AT TRIAL OF EXCEPTIONS

During the trials of the exceptions of prematurity and no right of action, the trial judge refused to allow counsel for the plaintiffs to introduce evidence by way of sworn affidavit. The Dock Board alleges that since this was a suit for preliminary and permanent injunctions, that affidavits were authorized pursuant to Article 3609 of the Code of Civil Procedure. The trial judge ruled that since he was conducting the trial of the exceptions, and not the trial of the preliminary injunction, that the Dock Board was required to use only competent legal evidence and that since the affidavits were hearsay, they were inadmissible. Articles 930 and 931 of the Code of Civil Procedure concerning dilatory and peremptory exceptions, respectively, provide that evidence may be introduced at the trial of exceptions “when the grounds thereof do not appear from the petition.” We interpret the word “evidence” as used in these articles to mean competent legal evidence. Hearsay has been defined in our law as “... written evidence, of a statement made out of court, the statement being offered as an assertion to show the truth of matters asserted therein, and thus resting for its value upon the credibility of the out-of-court asserter.” State v. Martin, 356 So.2d 1370 (La.1978); State v. Dupree, 377 So.2d 328 (La.1979). A sworn affidavit is hearsay and is not competent evidence unless its use is specifically authorized by statute. Mil ler v. Miller, 226 La. 273, 76 So.2d 3 (1954); Cobb v. Jeansonne, 50 So.2d 100 (La.App. 2nd Cir. 1951). It is our opinion that the trial judge correctly ruled that on the trial of the exceptions affidavit evidence was not admissible, even though these exceptions were associated with a suit for preliminary and permanent injunction.

V. FRIVOLOUS APPEAL

In view of the fact that this case presents serious issues of law, and in view of the fact that we have reversed the ruling of the trial judge on the exception of no right of action, the appeal in this case was not frivolous. Accordingly, the request of the Ethics Commission in its answer to the appeal for damages for frivolous appeal is denied. Goad v. May, 376 So.2d 340 (La.App. 3rd Cir. 1979); Jackson v. East Baton Rouge School Board, 348 So.2d 739 (La.App. 1st Cir. 1977).

VI. CONCLUSION

For the reasons above assigned, we hold that the Code of Governmental Ethics of the State of Louisiana is applicable to the Board of Commissioners of the Port of New Orleans and the ruling of the trial court on the exception of prematurity is affirmed; the ruling of the trial court sustaining the exception of no right of action is reversed, reserving to the parties the right to reliti-gate that issue, should it become necessary; the evidentiary ruling of the trial judge refusing to allow sworn affidavits in evidence at the trial of the exceptions of prematurity and no right of action is affirmed; the request for damages for frivolous appeal is denied; and the Board of Commissioners of the Port of New Orleans is cast for all costs of these proceedings and the proceedings in the trial court, totaling $511.26.

AFFIRMED IN PART, REVERSED IN PART, AND RENDERED.

APPENDIX NO. 1

LOUISIANA COMMISSION ON GOVERNMENTAL ETHICS

DATED: December 17, 1979 FILED: December 17, 1979

OPINION NO. 37

RE: Propriety of members of State Boards and Commissions rendering goods and services on a contractual basis to firms doing business with or conducting operations governed by the board or commission upon which the member serves.

The Commission’s investigation into charges that certain members of the Louisiana Mineral Board and certain state mineral lessees may have violated pertinent portions of the Code of Ethics was resolved without the necessity of a public hearing by the resignation from the Mineral Board of the individuals so charged and declarations by the state mineral lessees that no further contracts would be entered into between the mineral lessees and any individual serving on the Mineral Board.

The Commission has not previously interpreted the Code of Ethics within this context; and, in the past, persons of good faith and judgment may have differed over the construction of the Code as it pertains to this subject. It is therefore fitting and appropriate for the Commission to now interpret the Louisiana Code of Governmental Ethics as it relates to certain business relationships between members of the Louisiana Mineral Board and state mineral lessees, in particular, and as it relates to certain business relationships between any member of any state board or commission, and any firm or concern with whom that member may have business relationships.

The present Ethics Code provides as follows in Sections 1114, 1117(D) and 1117(F):

“§ 1114. Gifts.
General rule for all employees. — No state employee shall receive, accept, take, seek or solicit, directly or indirectly, any thing of economic value as a gift, gratuity or favor from any person or from any officer, director, agent or employee of such person, if such person:
(1) Has or is seeking to obtain contractual or other business or financial relationships with such employee’s agency; or
(2) Conducts operations or activities which are regulated by such employee’s agency; or
(3) Has interests which may be substantially affected by such employee’s performance or non-performance of official duty.
And if such state employee knew or reasonably should have known of the existence of any of the conditions covered above. Acts 1964, No. 110, § 1.
§ 1117. Members of boards and commissions.
D. No member of any board or commission appointed by the governor with or without the consent of the Senate shall participate in any way in any transaction involving the board or commission on which he serves in which he, his spouse or child, or any person of which he is an officer, director, trustee, partner or employee has a substantial personal economic interest, as distinguished from that of a general class or general group of persons of which he may be reasonably expected to know. As amended Acts 1967, No. 128, § 1.
F. Members of boards and commissions and corporations or firms in which said members are in any way financially interested are prohibited from bidding on or entering into or being in any way interested in any state contract or subcontract or any other public work coming under the supervision of the board or commission of which he is a member or for the furnishing of any material or supplies of any kind in connection therewith. As amended Acts 1967, No. 128, § 1.”

Illustrative of the purpose for the prohibitions contained in the above cited sections of the Code of Ethics, is the situation recently under investigation by this Commission and involving certain members of the State Mineral Board.

The Louisiana Mineral Board exercises discretionary authority over the affairs of state mineral lessees in several economically significant particulars. State mineral lessees, in the performance of their businesses, often seek and obtain goods and services from persons and companies providing such services. These service-oriented companies provide substantially similar services. The selection of those services is subject to the discretionary choice of the state mineral lessees on a call-out, job order, or straight contract basis. When a member of the Mineral Board who is engaged in such service-oriented companies does business with a state mineral lessee on such discretionary bases, the result is that a state mineral lessee is choosing to give valuable business to a member of the Mineral Board as opposed to giving it to some other company, which member exercises discretionary authority over the state mineral lessee. It is the opinion of the Commission that this creates the conflict of interest which the Code of Ethics prohibits notwithstanding the absence of evidence of actual moral impropriety on the part of either Mineral Board member or state mineral lessee.

Specifically, the Commission finds that the exercise of such discretionary business choices by a state mineral lessee is a prohibited “gift”, “gratuity” or “favor” under Section 1114. Further the Commission finds that such business activities are prohibited “transactions” under Section 1117(D) and prohibited “financial interests” under Section 1117(F).

Similarly, members of other state boards and commissions may, in their business relationships with others, be affected by the provisions of the above cited sections of the Ethics Code. Generally, members of boards and commissions are proscribed by the provisions of the Code of Ethics quoted above from entering into contracts for the delivery of goods and services with any firm or other concern that either has or is seeking to obtain contractual or other business or financia] relationships with the board or commission upon which the member serves, or conducts operations or activities which are regulated by the board or commission or has interests which might be substantially affected by the member’s performance or non-performance of duties; as stated differently, the purchase by a firm of goods and services from a member of a regulatory board or commission would constitute a prohibited “gift”, “gratuity” or “favor” as proscribed by Section 1114 of the Code of Ethics and, additionally, would render the firm similarly in violation of Section 1118 of the Code of Ethics.

In addition, the Commission notes the legislative intent expressed by Act 443 of the Regular Session of the 1979 Louisiana Legislature, effective April 1, 1980. Section 1111(B)(2)(d) specifically provides that “no public servant shall receive any thing of economic value for or in consideration of services rendered, or to be rendered, to or for any person during his public service [if such services] are performed for or compensated by any person from whom such public servant would be prohibited by R.S. 42:1115 from receiving a gift”.

This more specific statement of the present law here interpreted by the Commission reinforces the Commission in its conclusion that business relationships between members of boards and commissions and firms either conducting operations subject to regulation by the board or commission or having or seeking to obtain contracts or other business relationships with the board or commission upon which the member serves are strictly prohibited.

A copy of this Opinion is being mailed to the members of all state boards and commissions; the provisions of this Opinion should be closely examined by each member in light of the member’s present business practices, if any, with any firm doing business with or conducting operations governed by the board or commission upon which the member serves. Any activities of a member conflicting with the above cited provisions of the Ethics Commission must be terminated within thirty (30) days of the publishing of this Opinion. Thereafter, violations of the above cited sections of the Code of Ethics will result in immediate and appropriate disciplinary action.

s/Vanue B. Lacour Vanue B. Lacour, Chairman

s/Victor Bussie Victor Bussie, Member

s/Corinne Mavbuce Corinne Maybuce, Member

s/Robert C. Snyder Robert C. Snyder, Member

s/Charles M. Brown Charles M. Brown, Member

      .While this appeal was pending, the appeal of one of the individual commissioners, Michael J. Molony, Jr., was dismissed as moot on the grounds that he was no longer a member of the Dock Board and the Ethics Commission certified that it was closing its investigation into his particular case.

      . Opinion No. 37 is attached hereto as Appendix No. 1.

      . The present Code of Governmental Ethics was enacted by Act No. 443 of 1979 which did not become effective until April 1, 1980.

      . La.R.S. 42:1111 C(2)(d) provides:
      “C. Payments for nonpublic service.
      (2) No public servant shall receive anything of economic value for or in consideration of services rendered, or to be rendered, to or for any person during his public service unless such services are:
      (d) Neither performed for nor compensated by any person from whom such public servant would be prohibited by R.S. 42:1115 from receiving a gift.”
      La.R.S. 42:1115 provides:
      “A. No public servant shall solicit or accept, directly or indirectly, anything of economic value as a gift or gratuity from any person or from any officer, director, agent, or employee of such person, if such public servant knows or reasonably should know that such person has or is seeking to obtain contractual or other business or financial relationships with the public servant’s agency.
      “B. No public employee shall solicit or accept, directly or indirectly, anything of economic value as a gift or gratuity from any person or from any officer, director, agent, or employee of such person, if such public employee knows or reasonably should know that such person:
      (1) Conducts operations or activities which are regulated by the public employee’s agency.
      (2) Has interests which may be substantially affected by the performance or nonperformance of the public employee’s official duty.”
      La.R.S. 42:1116 provides:
      “No public servant shall use the authority of his office or position, directly or indirectly, in a manner intended to compel or coerce any person or other public servant to provide himself, any other public servant, or other person with anything of economic value. This Section shall not be construed to limit that authority authorized by law, statute, ordinance, or legislative rule in carrying out official duties.”

      . See the remarks of Delegate Perez in explaining Article VI, Section 44(7) in Vol. VII, Records of the Louisiana Constitutional Convention of 1973: Convention Transcripts, pp. 1632, 1634 and 1635.

      . Article VI, Section 43 provides:
      “All deep-water port commissions and all deep-water port, harbor, and terminal districts as organized and constituted on January 1, 1974, including their powers and functions, structure and organization, and territorial jurisdiction, are ratified and confirmed and shall continue to exist, except that
      (1) The legislature by law may grant additional powers and functions to any such commission or district and may create new port commissions or port, harbor, and terminal districts.

        (2) Only by law enacted by the favorable vote of two-thirds of the elected members of each house, may the legislature consolidate or abolish any such commission or district or diminish, reduce, or withdraw from any such commission or district any of its powers and functions and affect the structure and organization, distribution, and redistribution of the powers and functions of any such commission or district, including additions to or reductions of its territorial jurisdiction.
      (3) The legislature shall enact laws with respect to the membership of the commissions provided in this Section. Once the law with respect to membership is enacted, it may be changed only by law enacted by the favorable vote of two-thirds of the elected members of each house.”

      . Article VI, Sections 16, 16.1, 16.2, 16.3, 16.4, 16.5, 16.6 and 17, Louisiana Constitution of 1921. See R.S. 34:1-4, 21-30 and 45-47 and Act 464 of 1975, Act 289 of 1976 and Act 272 of 1980.

      . Vol. VII, Records of the Louisiana Constitutional Convention of 1973: Convention Transcripts pp. 1609-1611.

      . See, for example, Article VI, Sections 5 and 7 of the Louisiana Constitution of 1974.

      . Article III, Sections 1 and 11; Article IV, Sections 5, 6, 7, 8, 9, 10, 11, 12, and 21; Article V, Sections 26, 27, 28 and 29; Article VII, Section 24; Article IX, Sections 7 and 8; Article X, Section 3; and Article XI, Section 5.

      . 1979 Official House Journal, p. 552, May 10, 1979; 1979 Official Senate Journal, pp. 2165-6, July 4, 1979.

      . See, for example, Articles 966 (Motion for Summary Judgment), 1702 (Confirmation of Default), and 3609 (Preliminary Injunction) of the Code of Civil Procedure.

      . LSA-R.S. 42:1101, et sic [sic].

      . Section 1115 provides as follows:
      § 1115. Gifts
      A. No public servant shall solicit or accept, directly or indirectly, anything of economic value as a gift or gratuity from any person or from any officer, director, agent, or employee of such person, if such public servant knows or reasonably should know that such person has or is seeking to obtain contractual or other business or financial relationships with the public servant’s agency.
      B. No public employee shall solicit or accept, directly or indirectly, anything of economic value as a gift or gratuity from any person or from any officer, director, agent, or employee of such person, if such public employee knows or reasonably should know that such person:
      (1) Conducts operations or activities which are regulated by the public, employee’s agency.
      (2) Has interests which may be substantially affected by the performance or nonperformance of the public employee’s official duty.


source: Caselaw Access Project

author: EDWARDS, Judge.

license: Public Domain

text:
    Anthony S. ODDO, Jr. v. Geraldine Conrad ODDO.
    No. 14864.
    Court of Appeal of Louisiana, First Circuit.
    May 25, 1982.

      Mark Alan Jolissaint, Slidell, for plaintiff-appellee.
    Robert C. Lowe, New Orleans, for defendant-appellant.
    Before LOTTINGER, EDWARDS and SHORTESS, JJ.
   EDWARDS, Judge.

Plaintiff, Anthony Oddo, was awarded a divorce from his wife, Geraldine Oddo, on the basis of their having lived separate and apart for a period in excess of one year. The judgment awarding divorce also granted Mrs. Oddo alimony in the amount of $275.00 per month. She has appealed that judgment, seeking an increase in the alimony award.

Mrs. Oddo, age 50, is a clerical specialist who has been employed by the Municipal Court of New Orleans for approximately two years. Her gross income is $655.38 per month; her net income is $421.72 per month. Additionally, she receives another $37.00 per month in tenure payments. She lives with her mother in a home which is part of the community property acquired by Mr. and Mrs. Oddo during their marriage. Mrs. Oddo’s mother, who has been renting the house for seven or eight years, pays $100.00 per month in rent, which Mrs. Oddo uses to pay the $97.00 monthly mortgage note. Additionally, Mrs. Oddo’s mother pays the entire electricity and gas bill. Mrs. Oddo testified that she was repairing an apartment located on the property and would soon move into it. She testified that she intends to pay one-half of the monthly mortgage note and one-half of the utility bills when she moves into that apartment. Mrs. Oddo claimed monthly expenses of $1,285.10, itemized as follows:

Rent or Mortgage.$ 45.00
House Insurance.21.00
Utilities .80.00
Telephone.20.00
Maintenance and Repair .50.00
Yard Maintenance .20.00
Exterminating Co.15.00
Food .150.00
Clothing .50.00
Medical .16.00
Dental .50.00
Drugs.15.00
Hospital .10.00
Lunch Money .60.00
Auto replacement .250.00
Repair and Maintenance .50.00
Gasoline .80.00
Auto Insurance .29.50
Cosmetics and Drugstore.20.00
Haircuts.20.00
Cleaners .10.00
Appliance Repair.5.00
Clubs.30.00
Newspaper .3.60
Pets .15.00
Gifts.20.00
Church.25.00
Miscellaneous .125.00

Alimony after divorce is authorized by LSA-C.C. art. 160. This alimony is only due if the spouse seeking it proves that he or she is in necessitous circumstances. Frederic v. Frederic, 302 So.2d 903 (La.1974); Kean v. Kean, 388 So.2d 398 (La.App. 1st Cir. 1980). The spouse who demonstrates need for permanent alimony is only entitled to an amount sufficient to provide for his or her maintenance. Ward v. Ward, 339 So.2d 839 (La.1976). Those items which are encompassed by the term “maintenance” are: food, shelter, clothing, reasonable and necessary transportation or automobile expenses, medical and drug expenses, utilities, household expenses and the income-tax liability caused by alimony. Loyacano v. Loyacano, 358 So.2d 304 (La.1978); Kean v. Kean, supra. The amount of alimony fixed by the trial court should not be modified unless the record reveals that it abused the sound discretion with which it is vested under LSA-C.C. art. 160.

With a net income of approximately $421.72 per month, plus $37.00 in monthly tenure payments, Mrs. Oddo clearly demonstrated her need for alimony. The record reveals that the reasonable monthly expenses necessary for defendant’s support exceeded her income.

It is also obvious, however, that many of the expenses listed by Mrs. Oddo do not fit into the categories allowed for purposes of determining alimony after divorce. The expenses listed for cosmetics, haircuts, clubs, newspaper, pets, gifts and church, totaling $133.60 monthly, are not included within those types of expenses which are to be considered for purposes of alimony after divorce. Similarly, no explanation was offered for the $125.00 miscellaneous expense listed and it should not be included for purposes of computing what Mrs. Oddo needs for her maintenance. Finally, while reasonable automobile or travel expenses are necessary for a spouse’s maintenance, we note that Mrs. Oddo’s list contains a $250.00 per month automobile replacement expense as well as $50.00 per month for automobile repairs and maintenance, $80.00 for gasoline and $29.50 per month for automobile insurance. We conclude that the $250.00 per month automobile replacement expense is excessive and should not be in-eluded in what is reasonably necessary for Mrs. Oddo’s maintenance.

Mrs. Oddo’s list of monthly expenses totaled $1,285.10. From that amount should be subtracted those items which are not properly considered as necessary for her maintenance, as well as the $125.00 miscellaneous expense and the $250.00 automobile replacement expense. This leaves a total of $776.50 which is actually necessary for Mrs. Oddo’s maintenance. Her monthly net income is $421.72, leaving her in need of an additional $354.78 per month. When we considered the fact that she also receives an additional $37.00 per month in tenure payments, the trial court’s award of $275.00 per month in alimony did not exceed the bounds of its discretion.

For the foregoing reasons, the judgment of the district court is affirmed. All costs of these proceedings are to be paid by defendant-appellant.

AFFIRMED.

      . Mrs. Oddo testified at trial that her present automobile was in need of repair and that the $250.00 automobile replacement expense is what she needed to buy a new one. However, a spouse is only entitled to reasonable and necessary transportation or travel expenses and these expenses have been included in the other expenses noted above.


author: DOUCET, Judge.

text:
    Edward C. LAMB, Plaintiff-Appellee, v. Janet LAMB, Defendant-Appellant.
    No. 8790.
    Court of Appeal of Louisiana, Third Circuit.
    May 26, 1982.
    Rehearing Denied July 21, 1982.

      Shelton & LeGendre, Philip C. Kobetz, Lafayette, for defendant-appellant.
    Offices of J. Minos Simon, Gregory K. Klein, Lafayette, for plaintiff-appellee.
    Before CULPEPPER, FORET and DOU-CET, JJ.
   DOUCET, Judge.

This separation case involves a default judgment, rendered in favor of Edward C. Lamb, plaintiff-appellee, against his wife Janet Lamb, defendant. Defendant appeals, alleging that the trial judge erred in refusing to grant a new trial on peremptory grounds that the verdict was contrary to law and evidence and secondly, that due to the attorney neglect involved, the trial court erred in finding no discretionary grounds for a new trial. We affirm.

The undisputed facts of the case are as follows: The parties were married in 1967. On November 7, 1980, through her attorney Lawrence Shallcross, Mrs. Lamb filed a Petition for Separation From Bed and Board alleging abandonment and cruel treatment by her husband. Incidental demands for injunctive relief and alimony pendente lite in the amount of $8,000 per month were also part of the suit prepared by petitioner’s attorney. Ten days subsequent to the filing of Mrs. Lamb’s suit for separation, on November 17, 1980, her husband, Edward C. Lamb, through his attorney, J. Minos Simon, filed a separate lawsuit seeking separation from bed and board alleging cruel treatment and constructive abandonment by his wife. At the same time the husband’s attorney began negotiations to settle both suits amicably. Meanwhile, a restraining order was obtained and thereafter extended. Mr. Lamb’s lawsuit was served on Mrs. Lamb on November 19, 1980.

Meetings were subsequently held between the parties the following December and February in an attempt to reach a possible settlement of the lawsuits. Thereafter, on February 18, 1981, by telephone conference between attorneys, a reciprocal preliminary injunction was discussed and agreed upon. On February 23, 1981 that judgment, pursuant to the agreements of the parties, was signed by the trial judge. On March 2,1981, Mrs. Lamb and her attorney mutually agreed that she would seek new counsel due to their problems in communication. At the time no answer had been filed to Mr. Lamb’s lawsuit and Shall-cross had failed to have his client’s petition served on Mr. Lamb, all of which was unknown to Mrs. Lamb.

Subsequently, by letter dated March 5, 1981, Mr. Simon requested that Mr. Shall-cross file an answer to Mr. Lamb’s lawsuit since, in his opinion, negotiations had been unsuccessful. Mr. Shallcross did not reply to this letter nor did he forward it to Mrs. Lamb with her file materials.

On March 16, 1981, Mr. Shallcross sent a Motion to Withdraw as Counsel of Record in Mrs. Lamb’s lawsuit. He was notified by the Lafayette Parish Clerk of Court that the order would not be signed and filed until additional funds were received. Mr. Shallcross did not respond.

On March 25, 1981, an oral preliminary default was taken by Mr. Lamb’s attorney in the husband’s suit. The following day Mrs. Lamb departed on a long-planned vacation to Las Vegas, oblivious to the preliminary default entered the day before.

On April 7, 1981 appellee’s present counsel, Shelton and Legendre, was retained. The following morning the preliminary default, taken March 25,1981, was confirmed. Seven days later a Motion for New Trial was filed on behalf of Mrs. Lamb by Mr. Legendre pursuant to LSA-C.C.P. Art. 1972(1). The motion was denied. From that denial Mrs. Lamb appeals.

We first address appellant’s contention that peremptory grounds exist for avoidance of the default judgment. LSA-C.C.P. Art. 1701 provides in pertinent part that if a defendant in the principal or incidental action fails to answer within the time prescribed by law, a judgment by default may be rendered against him. Appellant contends that her previously filed petition sufficed as an answer to Mr. Lamb’s lawsuit. The only case which defendant cites for this proposition is Albrecht v. Albrecht, 376 So.2d 521 (La.App. 4th Cir. 1979) wherein our brothers of the Fourth Circuit held the allegations of plaintiff’s petition were sufficient to constitute an answer to defendant’s reconventional demand such that a valid default judgment could not be rendered on the incidental demand. Without approving of Albrecht we find it distinguishable inasmuch as there was no pleading whatsoever filed in the case at bar. We refuse to re-write the Code of Civil Procedure to appellant’s pleasing. The assignment of error lacks merit.

Alternatively, appellant asserts that Mr. Lamb did not establish a prima facie case of fault as required by LSA-C. C.P. Art. 1702. Appellee alleged as grounds of cruelty that his wife had told him and others that she no longer loved him and demanded he vacate the family home. Appellant does not contest the classification of the above allegations as cruel treatment within the meaning of LSA-C.C. Art. 138, but instead questions the sufficiency of plaintiff’s proof thereof. Mr. Lamb’s testimony substantiated his allegations and corroborating witnesses attested to the fact that Mr. and Mrs. Lamb had not been living together. Appellee properly points out that hearsay evidence does not sustain the burden of proving a prima facie case, however, plaintiff’s testimony, with the exception of appellee’s statements to others, was based upon personal knowledge. Defendant attempts to dismiss Mr. Lamb’s testimony as self-serving, yet all evidence presented by a litigant on his behalf serves his interest, thus the crux of appellant’s complaint is the credibility assigned plaintiff’s testimony by the trial judge. Firmly engrained in our jurisprudence is that, due to the trier of fact’s superior opportunity to assess the credibility of witnesses, his evaluations thereof will not be disturbed absent manifest error. Equally well established is that in reviewing a default judgment an appellate court is restricted to a determination of sufficiency of the evidence offered in support of the judgment. We conclude appel-lee established a prima facie case by competent evidence.

Turning to appellant’s contention that discretionary grounds exist for vacating the default judgment, we note that LSA-C.C.P. Art. 1973 provides that a new trial may be granted in any case if there is good ground therefor. The granting or refusal of a motion for new trial based on discretionary grounds is within the discretion of the trial judge and his action will not be disturbed on appeal unless it clearly appears that the trial judge abused his discretion. Hardy v. Kidder, 292 So.2d 575 (La.1974); Autin v. Allstate Ins. Co., 402 So.2d 219 (La.App. 1st Cir. 1981). Accordingly, the question becomes whether good grounds existed, and if so, whether the trial judge abused his discretion in denying the motion for new trial.

Mrs. Lamb urges that she should not be penalized because of the oversight of her original counsel inasmuch as she was unaware of her attorney’s failure to answer and he did not impart the necessity of answering timely prior to termination of their employment relationship. In support of her position appellant cites Hardy v. Kidder, 292 So.2d 575 (La.1974) wherein defendant initially appeared by counsel and secured a stay of proceedings in the personal injury action pending determination of discharge in bankruptcy court. Thereafter defendant received a discharge of said debt, nonetheless plaintiff, without notice to defendant, proceeded to take a preliminary default and confirm it. Our Louisiana Supreme Court held that, under the circumstances, the failure of defendant’s counsel to answer and assert the absolute defense of discharge constituted “good ground” for granting a new trial.

We consider Hardy to be inapposite for several reasons. First, the enforceability of a judgment relative to a debt previously discharged in bankruptcy is highly questionable. See 11 U.S.C.S. 524(1). Indeed, plaintiff Hardy may have been subject to damages for malicious prosecution if he had knowledge of the debt’s discharge. Gore v. Gorman’s, Inc., 143 F.Supp. 9 (1956, D.C.Mo.). In the present case there was no appearance by defendant and no stay order was obtained which would render a subsequent default judgment void. Mr. Lamb only exercised his legal rights and did so in strict conformity with all the requirements of law. And though notice to defendant is not required by law, such is relevant to determination of whether, in the interests of justice, discretionary grounds exist for the grant of a new trial. Hardy v. Kidder, supra, at 579. In this respect we note that plaintiff did not send notice of intention to default per se, however he did request that defendant file an answer as negotiations had, in his opinion, failed.

Rule 20(B), Fifteenth Judicial District Rules of Court, provides:

“Section B. When a suit for separation from bed and board has been filed in this district and a subsequent action for separation or divorce (and/or any other ancillary proceedings directly connected with the original suit) is filed thereafter, the subsequent action shall be filed in the original proceeding. Thus, the judge originally assigned the matter shall continue with the proceeding until it is drawn to a conclusion.”

As counsel did not request dismissal of the latter filed suit nor consolidation with appellant’s suit, we find, as did the trial judge, that counsel’s misplaced reliance on Rule 20(B) does not constitute “good ground” for a new trial.

In denying the motion, the trial judge stated:

“The Court finds it was defendant’s own neglect which enabled plaintiff to take the default judgment. Defendant was negligent in not retaining a new attorney sooner. Testimony showed defendant dismissed her former attorney on roughly March 2,1981 and did not engage new counsel until April 7, 1981. Defendant had her file since March 16, 1981 and it should have been evident to her an answer had not been filed in this suit. Though defendant’s former counsel may have been amiss in not discussing the status of her case with defendant and in not pointing out no answer had been filed, this was superseded by defendant’s failure to obtain counsel more promptly. Defendant knew she needed a lawyer and was unreasonable in relying on her former lawyer and thinking she was still “protected”.”

Apparently, appellant placed a higher priority on traveling to Las Vegas than securing new counsel. She was not ignorant of the legal process, she simply elected to pursue her recreational interests. We find the case to fall under the rule of DeFrances v. Gauthier, 220 La. 145, 55 So.2d 896 (1951), as expounded upon in Hardy v. Kidder, supra:

“Insofar as the opinion shows, the cause of his nonappearance prior to the confirmation to the default was his own neglect in appearing or in retaining an attorney, rather than any reasonable reliance by him upon a neglectful attorney timely retained.” 292 So.2d 579.

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

AFFIRMED.

      . Although the petition had not been served on Mr. Lamb, his attorney had been served with temporary restraining order.


text:
    Adelaide L. LANDRY, Plaintiff-Appellant, v. Adley LeBLANC, Defendant-Appellee.
    No. 8792.
    Court of Appeal of Louisiana, Third Circuit.
    May 26, 1982.
    Rehearing Denied July 21, 1982.

      Stanford B. Gauthier, II of Gauthier & Cedars, Breaux Bridge, for plaintiff-appellant.
    Earl H. Willis, St. Martinville, for defendant-appellee.
    Before CULPEPPER, FORET and DOU-CET, JJ.
   DOUCET, Judge.

Plaintiff-lessor brought suit to recover damages allegedly occasioned by defendant-leasee’s removal of topsoil from the leased premises. Defendant asserted plaintiff’s agent had authorized him to remove and haul away the soil, and presented parol evidence in support thereof, over plaintiff’s objection, which was admitted. The trial judge held that lessor had not sustained her burden of proof and dismissed plaintiff’s demands. Plaintiff appeals. We reverse.

The parties entered into a verbal farm lease for 8V2 acres in 1976. The leasee, Adley LeBlanc, maintained the farm lease for the first year and the lease was thereafter verbally renewed for 1977 and 1978. Immediately after the third renewal period commenced, on or about April 1, 1978, lessee made arrangements with R. J. Thibo-deaux Shell Yard, Inc. to remove the headland comprising the southeast portion of the property allegedly without lessor’s permission. Thereafter, the lessor, Adelaide L. Landry, notified the lessee that the lease would not be renewed. Lessor additionally requested that the land be returned to its original condition by replacing the soil which had been removed earlier that year. Suit followed wherein the lessor claimed lessee’s failure to return the property to its original condition resulted in damage to the property consisting of cost of returning the property to its original condition. The lessee filed an exception of prescription which was overruled. At trial on the merits, the lessee claimed that he received permission to remove the soil from one Lucien Landry, brother of plaintiff and lessor’s alleged agent. Tommy Thibodeaux, whose father owned property adjacent to plaintiff’s, testified that he excavated the unplowed land at the end of the plowed furrow on the leased premises at defendant’s request and that the removal thereof improved the drainage of both fields. Plaintiff denied any authorization to alter the property.

The trial judge was of the opinion that the lessor failed in her burden of proof and rendered judgment in favor of lessee. Plaintiff-lessor appeals alleging that the trial court committed manifest error in ruling that she had not established her case by preponderance of evidence; and that the trial judge erred in admitting parol evidence relative to the alleged agent’s authorization for defendant to remove the soil.

Plaintiff alleged in her pleadings that she owned the property involved herein; that the property was leased to defendant; that defendant removed the soil without her permission; that the leasee was informed that the lease would terminate; that defendant was instructed to cease his actions and return the soil, and as a result of leasee’s refusal thereof plaintiff suffered damages, to-wit: loss in property value, drainage and erosion problems. Defendant answered asserting the affirmative defense of mandate, alleging plaintiff’s brother, Lucien Landry, as agent of lessor, had granted authority for removal of the topsoil. Our review of the record discloses that plaintiff substantiated her allegation that defendant breached the verbal lease. The only matter seriously disputed is whether leasee’s removal of the soil was authorized. Thus resolution of the dispute turns on whether defendant established the affirmative defense of mandate.

Topsoil is immovable as tracts of land with their component parts are immov-ables. LSA-C.C. Art. 462. Comment (c) to Art. 462 provides: “Lands may be defined as portions of the surface of the earth. The ownership of land carries, by accession, the ownership of ‘all that is directly above and under it.’ C.C. Art. 505 (1870).” Related thereto is the Louisiana Mineral Code Section listing substances to which the code applies: “The provisions of this Code are applicable to. .. rights to explore for or mine or remove from the land the soil itself...” LSA-R.S. 31:4. The right to minerals is an incorporeal immovable. LSA-R.S. 31:18. Thus, whether Civil Code or Mineral Code articles are applied, the result remains the same that the interest asserted herein is to an immovable, cf: LSA-R.S. 31:2. Plaintiff-owner’s topsoil did not become movable by its placement in trucks to be hauled away.

As the property involved was immovable, any transfer of ownership thereto was required to be in writing. LSA-C.C. Art. 2275. Indeed any dealing with realty, onerous or gratuitous, must be in writing unless the adverse party admits under oath that he made a contract affecting realty. Williams v. Alexander, 193 So.2d 94 (La.App. 1st Cir. 1966). Mineral leases are subject to this requirement of writing. Bills v. Fruge, 360 So.2d 661 (La.App. 3rd Cir. 1978) writ, denied 362 So.2d 792. As there was no such admission under oath, the verbal sale of immovable property was null. LSA-C.C. Art. 2440. That the parties admittedly had a preexisting lease agreement is of no consequence as the oral lease did not effect an ownership transfer of the immovable topsoil. In this regard it should be noted that we are not concerned with defendant’s use of the immovable property per se, to which the parol evidence prohibition would not apply, but rather the transfer thereof. It is the rights to immovables acquired under a lease which cannot be established by parol evidence. Noble v. Plouf, 154 La. 429,97 So. 599 (1923); Landis v. Agnew, 154 La. 435, 97 So.2d 601 (1923); Slay v. Smith, 368 So.2d 1144 (La.App. 3rd Cir. 1979); Guy Scroggins, Inc. v. Emerald Exploration, 401 So.2d 680 (La.App. 3rd Cir. 1981) writ denied 404 So.2d 1257.

Likewise, parol evidence could not be received to prove an agency to buy or sell immovable property, McKenzie v. Bacon, 40 La.Ann. 157, 4 So. 65 (1888). A contract to sell affecting title to immovable property is required to be in writing and any mandate authorizing Lucien Landry to dispose of such property must have been express, special, and also in writing. LSA-C.C. Art. 2997; Tchoupitoulas, Inc. v. McCullough, 349 So.2d 346 (La.App. 4th Cir. 1977), writ denied 351 So.2d 166. None of the above formalities were followed. In fact, Lucien Landry testified at trial that he did not authorize lessee-LeBlanc to remove the soil. The trial judge erred in admitting parol evidence concerning Landry’s alleged mandate.

Considering all admissable evidence we conclude that the trial judge was clearly wrong in finding plaintiff had failed to establish her claim by a preponderance of evidence. Accordingly we turn to the issue of damages. Clarence Thibodeaux, a civil engineer accepted as an expert in said field, estimated that 287 cubic yards of soil had been removed from the headland. According to Miller Lewis, Jr., who was accepted as a “dirt hauling” expert, the cost of a seven yard load, or truck full, of dirt was $59.20, and testified that forty (40) loads would be required to fill the excavation in question. Clarence Begnaud, a motor grader operator expert, testified that the cost to level the dirt is $100.00. Defendant offered no testimony to controvert these figures. Therefore we find that the sum required to return the property to its original condition to be Two Thousand, Four Hundred Sixty-Eight ($2,468.00) Dollars and hereby award plaintiff this sum as damages with legal interest from the date of judicial demand. Furthermore, we hereby assess expert witness fees as follows: Two Hundred ($200.00) Dollars to Clarence Thibodeaux, and One Hundred ($100.00) Dollars each to Messrs. Lewis and Begnaud. All costs, both at the trial level and on appeal, are taxed to Defendant-appellee.

For the reasons set forth above the judgment appealed is reversed and set aside. It is now ordered, adjudged and decreed that there be a judgment herein in favor of the plaintiff, Adelaide L. Landry, and against the defendant, Adley LeBlanc, for the sum of $2,468.00, together with legal interest thereon from date of judicial demand until paid, and all costs, both in the trial court and of this appeal.

REVERSED AND RENDERED.

      .Defendant’s exception sought to characterize plaintiffs action as one in tort however plaintiff’s petition is labeled “Suit for Breach of Contract and Damages”. The petition failed to specify violation of the terms of the lease. The trial judge, applying LSA-C.C.P. Art. 865, requiring construction of pleadings so as to do substantial justice, construed the cause of action to be one for breach of an oral lease agreement and overruled the exception. The existence of lease between the parties is not seriously disputed. The defendant neither answered nor appealed, therefore we need not address this issue.

      . At the time of trial plaintiff, an elderly woman, was confined to a nursing home, apparently too ill to testify. Lucien Landry attended to much of the leasing responsibilities on her behalf.

      . Leases may, of course, be either written or verbal. LSA-C.C. Art. 2683.

      . Former Article 505 is reproduced in LSA-C.C. Art. 490.

      .Defendant denies having received any money for the soil from R. J. Thibodeaux Shell Yard, nonetheless both parties thereto admit receipt of non-monetary consideration.

      . Mr. Lewis’ estimate was based upon a figure of $55.00 per load plus 60$ per yard representing the cost of the dirt.

      . $59.20 X 40 = $2,368.00 + $100.00 = $2,468.00.


author: FORET, Judge.

text:
    GENERAL AMERICAN OIL COMPANY OF TEXAS, Plaintiff-Appellee, v. The SUPERIOR OIL COMPANY, Defendant-Appellant.
    No. 8784.
    Court of Appeal of Louisiana, Third Circuit.
    May 26, 1982.
    Rehearing Denied July 21, 1982.
    Gordon, Arata & McCollam, Sheryl L. Hopkins, New Orleans, for defendant-appellant.
    Blanchard, Walker, O’Quinn & Roberts, Robert Roberts, III and Randall S. Davidson, Shreveport, Davidson, Meaux, Sonnier & Roy, Laurence E. Donohoe, Jr., Lafayette, for plaintiff-appellee.
    Before CULPEPPER, FORET and DOU-CET, JJ.
   FORET, Judge.

General American Oil Company of Texas (Plaintiff) brought this action to recover sums allegedly owed it by defendant, the Superior Oil Company, under the terms of certain contracts entered into by them for the purpose of adjusting, between themselves, the cost of drilling an oilwell.

The trial court, after trial, rendered judgment in favor of plaintiff and against defendant, holding defendant liable to plaintiff in the amount of $334,891.54, which includes interest of $44,068.00, together with interest on the sum of $290,823.54 at the rate of 6% per annum from July 11, 1978, until paid.

Defendant appeals suspensively from the trial court’s judgment and raises the following issues:

(1) Whether the laws of this State or the State of Texas govern the interpretation of the provisions of the parties’ contracts;
(2) Whether the trial court committed manifest error in finding that the oil-well drilled under plaintiff’s direction was “completed as a producer of oil or gas in commercial quantities” so as to trigger the cost adjustment provisions of a Letter Agreement between the parties; and
(3) Whether the trial court committed manifest error in finding that defendant had consented to certain operations undertaken by plaintiff in an attempt to bring the oilwell into production.

FACTS

J. P. Owen (Owen) and defendant had entered into a Joint Operating Agreement (JOA) on January 21, 1965, “. .. to provide for management, development and operation for the joint account of the jointly owned leases and the area covered thereby”. The leases referred to in the JOA were twelve oil, gas and mineral leases in which Owen and defendant each held a 50% interest. The JOA was amended on March 10, 1967, to recognize plaintiff as a party thereto by virtue of its acquisition of one-half of the interest, rights and obligations of Owen in the above mentioned leases and, in addition, to reflect the fact that the JOA had been extended to cover nine additional oil, gas and mineral leases. The interest of each party to that agreement in the twenty-one leases was set at 50% for defendant, 25% for plaintiff, and 25% for Owen.

Plaintiff, pursuant to the terms of the JOA, notified defendant by letter dated May 22, 1974, of its intention to drill an oilwell in the southeast Gueydan field (the field), Vermilion Parish, to be known as the General American-C.P. Zaunbrecher # 1 (the well). Plaintiff proposed to drill the well on a turn-key basis to a depth of 16,500 feet below the surface or through a geological formation known as the Miogyp. Sand. Plaintiff had acquired 100% of Owen’s interest in the mineral leases covering the field at this time.

Plaintiff’s original proposal for drilling the well was unacceptable to defendant and the parties then entered into a series of negotiations concerning principally the proportion of the cost of drilling the well that each would bear, and the manner and time of adjusting those costs between them should certain events occur. The negotiations culminated in a Letter Agreement dated January 17,1975, which provided that plaintiff would bear 75% of the cost of drilling the well and defendant would bear 25% of those costs, unless the cost adjustment provisions of the Letter Agreement were triggered. There were essentially two events which would have to occur to trigger the cost adjustment provisions. These events were that the well had to be “completed as a producer of oil or gas in commercial quantities” and a unit had to be established for the well by the Louisiana Commissioner of Conservation. The unit would set the respective working interests of the parties in the well and provide the basis for the adjustment.

Plaintiff, as operator, contracted with the Goldrus Drilling Company to drill the well on a turn-key basis. Drilling commenced and continued until the well was drilled to a total depth of 17,006 feet. The Miogyp. sand was never encountered during the drilling operation, it either having faulted out or shaled out at that point. However, two potentially productive sands had been encountered at shallower depths, one at approximately 12,600 feet and the other at approximately 13,000 feet.

Plaintiff, by letter dated August 6, 1975, notified defendant that it would attempt to complete the well in the 13,000' sand and proceeded to do so. The well was completed at that depth some two weeks later and shut-in at a surface pressure of 7300 psi. Plaintiff then applied for a hearing before the Louisiana Commissioner of Conservation to establish units for each sand and a notice of its application was mailed to all interested parties on October 16, 1975. The hearing was held on January 13, 1976, and resulted in Orders # 797-D and 797-E, issued by the Commissioner, establishing units for each sand according to recommendations made by plaintiff. The working interest of plaintiff in the 12,600' sand was determined to be 53.125863% and 46.874137% for defendant. In the 13,000' sand, plaintiff’s working interest was determined to be 54.589023% and 45.410977% for defendant. There was no opposition expressed at the hearing to establishing the units as proposed by plaintiff and defendant did not participate therein.

Plaintiff, by telex dated February 20, 1976, informed defendant that: “THE C. P. ZAUNBRECHER WELL IS HOOKED UP AND READY TO PRODUCE.” The well was opened for production on April 1, 1976, and during the first twenty-four hours, produced 1,350,000 cubic feet of gas and 192 barrels of condensate at a tubing pressure of 8,050 psi. The rate of production remained fairly constant for the first few days, but declined steadily thereafter. A month after production commenced, the well began to produce salt water. It was closed in on July 3, 1976, after surface equipment became fouled with sand produced by it. The equipment was cleaned and repaired, and the well was placed back in production on July 22, 1976. During this period of time, the tubing pressure had built up from a low of 1,650 psi, at the time the well was closed in, to 7,100 psi when it was placed back in production. The well produced 1,000,000 cubic feet of gas and 40 barrels of condensate during the first full day that production was resumed, but these rates again declined steadily thereafter. The well also began to produce both cement and sand, and was finally shut in on August 3, 1976. It has not produced from the 13,-000' sand since that time.

Plaintiff, by letter dated September 8, 1976, informed defendant that it would attempt to complete the well in the 12,600' sand and commence production therefrom shortly thereafter. However, plaintiff was unable to set a plug isolating the 13,000' sand from the well, nor was it able to clean the well out. Plaintiff finally concluded that the casing had collapsed based on the fact that it was unable to set the plug and because of the continuing presence of cement in the wellbore itself. The well was never actually completed in the 12,600' sand, although it had produced significant amounts of gas and condensate from that sand during tests conducted while the well was in the process of being drilled. Plaintiff had billed defendant for its share of the adjusted well cost by this time, but defendant refused to pay.

Plaintiff instituted this action alleging: the existence of the Letter Agreement between it and defendant; that the well was drilled in full compliance with that agreement; that it was completed as a producer of gas and condensate in commercial quantities; that units were established by the Louisiana Commissioner of Conservation for both the 12,600' sand the 13,000' sand; that actual production of gas and condensate in commercial quantities commenced from the 13,000' sand on April 1, 1976; that, based on a survey approved by defendant, plaintiff’s working interest in the unit established for the 13,000' sand is 54.589023% and defendant’s working interest therein is 45.410977%; that under the provisions of paragraph 5 of the Letter Agreement, defendant owes plaintiff an adjustment of the cost of drilling, completing and equipping the well amounting to $321,-669.90, which sum defendant has refused to pay; and, that, under the applicable provisions of the JO A, defendant owes plaintiff interest on the principal amount due at the rate of 10% per annum from May 11, 1976, until paid. Defendant answered plaintiff’s petition denying that any cost adjustment was due under the terms of the Letter Agreement.

Plaintiff filed a supplemental petition, shortly before trial, alleging that it had incurred additional costs in connection with the well that were subject to adjustment between it and defendant, less certain credits which defendant was entitled to for salvage of materials and equipment from the well. Defendant answered plaintiff’s supplemental petition, again denying that any cost adjustment was owed to plaintiff. Defendant then plead the affirmative defense of compensation alleging that, if the trial court should find that any amounts whatsoever are due plaintiff, it is entitled to a credit for adjusted well costs through the 12,600' sand amounting to some $282,775.00.

APPLICABLE STATE LAW (TEXAS OR LOUISIANA)

Defendant contends that the trial court erred in interpreting the provisions of the Letter Agreement between it and plaintiff through the use of Louisiana law. The record clearly shows that this issue was never raised in the trial court, nor in any pleadings filed in that court. Pursuant to the provisions of Rule IX-A of the Uniform Rules-Courts of Appeal, we will not review this issue.

INTENTION OF THE PARTIES

Defendant contends that the trial court committed manifest error in finding that, by their use of the term “a producer of oil or gas in commercial quantities” in the Letter Agreement, the parties intended to include within the meaning of that term, a well producing oil or gas, the value of which exceeds its day-to-day operating expenses. Paragraph 3 of the Letter Agreement provides:

“3. The well will be drilled and operated by us pursuant to the Joint Operating Agreement dated January 21, 1965 between you and J. P. Owen, except that all costs incurred in connection with the well shall (subject to the provisions of paragraph 5 below) be borne and paid in the proportion of 75% by us and 25% by you. You have heretofore approved our revised A. F. E. dated November 12, 1974.”
(“US”, of course, refers to plaintiff and “YOU” to defendant.)

Paragraph 5 of that same agreement provides:

“5. If the well is completed as a producer of oil or gas in commercial quantities, an adjustment of the sharing of the costs of drilling, completing and equipping the well shall be made between you and us, so that such costs shall be borne on the basis of our respective working interests in the unit established for the well by the Louisiana Department of Conservation ; provided, however, if such completion (or a subsequent completion) is made in an horizon shallower than the Miogyp. sand, such adjusted well costs shall be limited to the cost (or a mutually agreeable depreciated cost if the well has previously been on production) of drilling said well to a depth of 100 feet below the base of the unitized horizon in which such completion is made. The cost of drilling said well below the depth which is 100 feet below the base of the unitized horizon shall be borne by the parties hereto in the proportions as set forth in paragraph 3 hereof.” (Emphasis ours.)

The trial court, on the basis of its findings, mentioned above, concluded that the well was completed as a producer of oil or gas in commercial quantities in the 13,000' sand. It noted that the well, while producing from this sand, had produced gas and condensate valued at over $100,000.00 and that this amount exceeded its day-to-day operating expenses by some $65,000.00. The trial court then went on to find that the cost adjustment provisions of paragraph 5 had come into effect as all the conditions were met, i.e., the well had been completed as a producer of oil or gas in commercial quantities and a unit had been established for it by the Louisiana Department of Conservation. Thus, the trial court held defendant liable to plaintiff for the difference between the cost it had already paid plaintiff for drilling the well 100 feet below the 13,000' sand (25% of those costs under paragraph 3 of the Letter Agreement) and its share of those costs based on its working interest in the unit established for that sand, i.e., 45.410977%.

Defendant argues that the parties intended for the term “a producer of oil or gas in commercial quantities” to mean “... a well which will generate revenues in excess of the cost of drilling, completing, equipping and operating the well”. Defendant then notes that such cost for this well exceeded $1,000,000.00 and, therefore, it cannot be considered to have been a producer of oil or gas in commercial quantities. A review of paragraph 5 shows that it makes no provision for adjusting operating costs which could be significant, if the well had to be operated for some time before it could be determined whether or not it was “a producer of oil or gas in commercial quantities” as defendant contends.

As can be expected in a case such as this, each party presented several experts who gave testimony supporting their own particular position regarding the meaning of the term “a producer of oil or gas in commercial quantities”. In addition, the trial court appointed its own independent expert whose testimony supported plaintiff’s position. We find the testimony of these experts helpful, but not decisive of the issue before us.

LSA-C.C. Article 1945 provides:

“Art. 1945. Interpretation according to intent of the parties
Art. 1945. Legal agreements having the effects of law upon the parties, none but the parties can abrogate or modify them. Upon this principle are established the following rules:
First — That no general or special legislative act can be so construed as to avoid or modify a legal contract previously made;
Second —That courts are bound to give legal effect to all such contracts according to the true intent of all the parties;
Third — That the intent is to be determined by the words of the contract, when these are clear and explicit and lead to no absurd consequences;
Fourth —That it is the common intent of the parties — that is, the intention of all — that is to be sought for; if there was a difference in this intent, there was no common consent and, consequently, no contract.
(Amended by Acts 1871, No. 87)”
LSA-C.C. Article 1949 provides:
“Art. 1949. Reference to other contracts on same subject between same parties
Art. 1949. When there is anything doubtful in one contract, it may be explained by referring to other contracts or agreements made on the same subject between the same parties, before or after the agreement in question.”

The parties introduced in evidence, or attempted to do so, several prior agreements between themselves regarding the adjustment of costs for drilling other wells and the manner in which these agreements were carried out. Plaintiff’s evidence in this area related to three prior wells. For two of these wells, the cost adjustment had been made about ten years prior to the date of trial, and neither of the wells had yet produced enough oil or gas to pay all costs associated with them. For the third well, the cost adjustment had been made approximately five years prior to the time that it had produced enough oil or gas to pay all costs associated with it. These wells were drilled either under the provisions of the JO A or under a supplement to that agreement with provisions similar to those found in paragraphs 3 and 5 of the Letter Agreement.

Defendant doesn’t dispute this evidence, but it notes that two of these wells had produced for some time before plaintiff was invoiced for its increased share of the well cost, although it produced no evidence to show how long. There was evidence indicating that production was sustained from one of the wells for several years before plaintiff was invoiced for a cost adjustment. Defendant’s employees conceded at trial that if the well in question had been drilled solely under the provisions of the JO A or under no agreement at all, then defendant would owe plaintiff an adjustment for well cost. However, they attempted to show that paragraph 5 of the Letter Agreement somehow changed this arrangement by its use of the term referring to production in “commercial quantities”.

Defendant attempted to introduce in evidence an application for rehearing filed by plaintiff, among others, regarding an order issued by the Federal Energy Regulatory Commission (FERC). Defendant contends that plaintiff argued in this application that in order for a well to be considered a producer of oil or gas in commercial quantities, the evidence must indicate that the well will produce enough oil or gas to completely pay all costs associated with it and provide an adequate return on capital. The trial court, upon objection by plaintiff, refused to allow this document in evidence, finding it to be irrelevant to the issues before the court. The document was placed in the record under a proffer of proof.

For evidence to be relevant, it must have some probative value and be reasonably connected to the transaction in question. Associates Financial Services Co., Inc. v. Ryan, 382 So.2d 215 (La.App. 3 Cir. 1980); Vignes-Bombet Co., Inc. v. Rowe, 288 So.2d 889 (La.App. 1 Cir. 1973).

A review of the document sought to be introduced by defendant clearly shows that it is irrelevant and of no probative value in deciding the issues presented by this action. The document contains a challenge by plaintiff and others to certain regulations promulgated by the FERC pursuant to the Natural Gas Policy Act of 1978 (NGPA). That portion of the document cited by defendant pertains to the definition of a commercially produceable “reservoir” of natural gas located “offshore” and the importance of defining that term for purposes of deciding whether to invest substantial sums in erecting offshore production facilities, or drilling additional wells to delineate the reservoir. It has nothing to do with deciding whether and when a cost adjustment provision relating to an onshore well has been triggered.

Defendant also attempted to introduce in evidence a joint operating agreement executed by it and oil companies, other than plaintiff, for the development of mineral leases offshore. Plaintiff objected to the relevancy of this document and the trial court sustained the objection. We agree. LSA-G.C. Article 1949 makes it clear that it is other contracts made on the same subject between the same parties that may be referred to for resolving anything doubtful in the contract under review. The trial court did, however, allow defendant to place two documents in evidence over plaintiff’s objection to the relevancy thereof. These were two joint operating agreements executed by plaintiff and defendant, among others, for the exploration and development of mineral leases offshore. Both agreements precisely define the term “commercial quantities”, but in the context of a reasonably prudent operator having to make the initial decision as to whether a well should be drilled. Certainly, as both plaintiff and defendant agreed, no one would drill a well unless they believed that it would produce enough minerals to cover its costs. This is simply common sense. However, this action raises no issue concerning the making of such a decision. It is apparent that the trial court accorded very little, if any, weight to these documents as it does not even mention them in its written reasons for judgment. In any event, this Court attaches very little weight to them.

Defendant cites many cases from other jurisdictions which it claims support its position as to the meaning of the term “a producer of oil or gas in commercial quantities”. We find that these cases, assuming they do support defendant’s position, are inapplicable to this action. It was repeatedly pointed out in the testimony at trial that South Louisiana is unique in that units are formed almost exclusively on a geological basis, rather than a geographical basis as is done in most other jurisdictions. Thus, when parties undertake the drilling of a well into a geological formation for which no unit has been established, there is usually much uncertainty regarding the interest in the well each will ultimately have. This is why cost adjustment provisions such as those found in the Letter Agreement are utilized.

Defendant does cite some Louisiana jurisprudence that it argues supports its position. However, a review of that jurisprudence shows that those cases involved a determination of issues related to the obligation of a mineral lessee to drill offset wells to prevent substantial drainage of oil or gas from the leased land. Certainly, in that context, one factor which must be considered is whether or not the lessee can expect to recover the cost of drilling such wells. Again, that is not the issue before us.

Finally, we note that defendant admitted that a cost adjustment was due plaintiff in certain correspondence with plaintiff that was introduced in evidence. It also recognized that a cost adjustment was due under the terms of the Letter Agreement in certain internal memoranda obtained by plaintiff and introduced in evidence.

It is our opinion that the trial court correctly found that a cost adjustment was owed by defendant to plaintiff under the provisions of the Letter Agreement.

DEFENDANT’S ALLEGED CONSENT TO PLAINTIFF’S ATTEMPTED COMPLETION IN THE 12,600' SAND

Defendant contends that the trial court committed manifest error in finding that it consented to plaintiff’s attempted completion of the well in the 12,600' sand. It argues that, pursuant to certain provisions of the JO A, it elected to go non-consent to the completion in that sand.

An internal memorandum of defendant, introduced in evidence, notes that defendant did consent to the completion of the well in both sands. Further, in correspondence with plaintiff, defendant admitted that it would owe plaintiff 25% of the cost of a completion in the 12,600' sand. There is no provision in the JO A or Letter Agreement that allows a party to partially non-consent to a certain operation.

We have attempted to discern the basis for defendant’s claim that it is entitled to an adjustment in well costs through the 12,600' sand, totalling some $282,775.00, based on its alleged non-consent to plaintiff’s completion attempt in that region. Defendant’s witness, who attempted to explain the basis for its compensation claim, admitted that he was unfamiliar with the terms of the JO A, where the non-consent provision is found. We find no basis for defendant’s claim.

Our review of the record establishes that the trial court correctly found that defendant consented to plaintiff’s completion attempt in the 12,600' sand.

For the above and foregoing reasons, the judgment of the trial court is affirmed.

All costs of this appeal are assessed against defendant-appellant.

AFFIRMED.

      . General provision # 5 of a document setting forth certain accounting procedures to be followed by the parties, attached to and made a part of the JOA, provides that, if a non-operator fails to pay any bills submitted to it by the operator within fifteen days after receipt thereof, the unpaid balance shall bear interest at the rate of 6% per annum until paid.

      . Condensate is a light hydrocarbon liquid obtained by condensation of hydrocarbon vapors. It consists of varying proportions of butane, propane, pentane, and heavier fractions, with little or no ethane or methane.

      . Casing is steel pipe placed in an oil or gas well as drilling progresses to prevent the wall of the hole from caving during drilling and to provide a means of extracting petroleum if the well is productive. Cement is pumped into the hole under great pressure to force it into the space between the casing and the wall of the hole. It holds the casing securely in place once it hardens.

      . A “drill stem” test was run on the well while it was still being drilled. In performing this test, the well is allowed to produce from the open hole, i.e., those areas of the wellbore not yet protected by casing. The test indicated a pressure of approximately 11,000 psi in the region of the 13,000' sand with a surface pressure of approximately 8,000 psi. The surface test data indicated that the well flowed at a rate of 2,560,149 cubic feet of gas per day and 252 barrels of condensate per day from the 13,000' sand. The test also indicated a pressure of approximately 10,000 psi in the region of the 12,600' sand with a surface pressure of approximately 5,000 psi. The well flowed at a rate of 1,975,193 cubic feet of gas per day and 108 barrels of condensate per day from the 12,600' sand.

      . “RULE IX-A. SCOPE OF REVIEW
      The scope of review in all cases within the appellate and supervisory jurisdiction of the Courts of Appeal shall be as provided by Art. 5, § 10(B) of the Louisiana Constitution of 1974 and Article 2164 of the Louisiana Code of Civil Procedure. Ordinarily, however, the Courts of Appeal will review only issues which were submitted to the trial court and which are contained in the specification of errors in the briefs or in an application for writs, unless the interest of justice clearly requires otherwise. Adopted, effective Dec. 1, 1977.”

      . The non-consent provision referred to essentially provides that a party could elect not to participate in certain operations undertaken by another party to the agreement by simply remaining silent for a certain period of time after being notified by the other party of the actions it planned to take along with certain other information. If the action was undertaken and the well eventually produced hydrocarbons, the party performing the operation was allowed to keep an increased share of the production as a penalty against the party who had non-consented.